SECOND DIVISION

[G.R. No. 126175. May 29, 1997.]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.

ARMANDO ROMUA, accused-appellant.

The Solicitor General for plaintiff-appellee.

Public Attorney's Office for accused-appellant.

SYLLABUS

1. REMEDIAL LAW; EVIDENCE; CREDIBILITY; FINDING BY THE TRIAL

COURT THAT THE RAPE VICTIM IS MENTALLY RETARDATE, UPHELD ON
APPEAL. — The mental depravity of the victim was established through the
testimonies of the prosecution witnesses. Dr. Necesario testified that the victim is
mentally retardate. Significantly, during cross-examination, the defense did not
make any attempt to impugn the opinion of the doctor that the victim is a mental
retardate. Likewise, Jovita Jaban testified on the mental condition of her daughter
without any challenge from the appellant. The complainant is retarded. Throughout
the trial of the case, appellant did not challenge the mental abnormality of the
victim. It is too late for him to raise this factual issue before this tribunal. Besides,
defense witness Lito Amosin also confirmed the mental retardation of the victim in
open court. Indeed, appellant himself was aware of the mental state of the victim.
They are relatives and neighbors. He used to take care of the victim when her
mother was away. TAECSD

2. ID.; ID.; HOW IDENTITY OF RAPIST ASCERTAINED WHERE VICTIM

WAS A MENTAL RETARDATE. — It is not an easy task to ascertain the identity
of the rapist when the victim is deprived of reason as in the case at bar.
Nonetheless, said identity can be established with certainty from the events
preceding or following the bestial act. In People vs. Danao, we held: "Direct
evidence of the commission of a crime is not the only matrix wherefrom a trial court
may draw its conclusion and finding of guilt. Indeed, there are crimes when there
are no eyewitnesses at all. Under such situations, the courts are allowed to rule on
the bases of circumstantial evidence. Such species of evidence is sufficient for
conviction if (1) there is more than one circumstance, (2) the facts from which the
inferences are derived are proven, and (3) the combination of all the circumstances
is such as to produce a conviction beyond reasonable doubt."
 3. ID.; ID.; ID.; CASE AT BAR. — In the case at bar, several circumstances
indicate appellant as the perpetrator of the crime, viz: (1) Appellant knew that the
victim was alone in her house because her mother was also watching the video
tape at Pablo's house. (2) Appellant went to the house of the victim ostensibly to
check if anything untoward happened to her. There is no evidence that anybody
else visited the victim before the incident. (3) When appellant emerged from her
house, Jovita saw him clad in brief while the victim was stripped of her clothes.
Appellant's wife who arrived at the scene later was not presented in court to
disprove Jovita's allegation. (4) The doctor found sperm cells in the vaginal canal
of the victim when he examined her less than 24 hours after the incident. These
circumstances lead us to the inescapable conclusion that it was appellant who took
advantage of the mental frailty of the victim and raped her.
4. ID.; ID.; CREDIBILITY; NO MOTHER WOULD EXPOSE HER
DAUGHTER'S MISFORTUNE TO THE PUBLIC IF NOT MOTIVATED BY
HONEST DESIRE TO HAVE CULPRIT PUNISHED. — Jovita gave a credible
account of the events that evening. She was steadfast in her testimony that she
saw the appellant without his pants on, inside her house. She also found her
daughter naked. There were traces of sperm in her daughter's vaginal canal. Her
story deserves full faith and credit. A mother would not expose her daughter's
misfortune to the public if she was not motivated by an honest desire to have the
culprit punished. EaHATD

5. ID.; ID.; ID.; TESTIMONY OF WITNESS WITHOUT MOTIVE TO

FALSELY CHARGE ACCUSED, CREDIBLE. — We note too that there was no
grudge between Jovita and appellant prior to the incident. There is thus not motive
for Jovita to distort the truth. It is a settled rule that in the absence of evidence of
improper motive on the part of a prosecution witness to falsely testify against an
accused or falsely implicate him in the commission of a crime, the testimony
deserves credence.
6. ID.; ID., MENTAL RETARDATION CAN BE PROVED BY OTHER
EVIDENCE OTHER THAN MEDICAL EVIDENCE. — Appellant also contends that
the trial court misapplied People vs. Tomentos to the case at bar. He points out
that in Tomentos, the mental retardation of the victim was proven by medical
evidence and the victim herself testified and identified the accused. We are not
impressed. Mental retardation can be proved by other evidence. As afore-
discussed, the mental retardation of Lolita was established by several witnesses
and was not contested by appellant. While no witness directly saw appellant rape
the victim, nonetheless, various circumstantial evidence leave no doubt that he
committed the dastardly offense.
7. CRIMINAL LAW; RAPE; RECLUSION PERPETUA, AN INDIVISIBLE
PENALTY; TO BE APPLIED REGARDLESS OF ANY MITIGATING OR
AGGRAVATING CIRCUMSTANCES. — We agree with the Court of Appeals that
the proper penalty in this case is reclusion perpetua. We have held in People vs.
Fabro that for offenses in which the law prescribes the single, indivisible penalty
of reclusion perpetua, it is the first paragraph of Article 63 of the Revised Penal
Code and not the Indeterminate Sentence Law which applies. Said article provides
that "in all cases in which the law prescribes a single and indivisible penalty, it shall
be applied by the courts regardless of any mitigating or aggravating circumstances
that may have attended the commission of the deed.
8. CIVIL LAW; DAMAGES; P50,000.00 INDEMNITY FOR DEATH. — In line
with the previous decision of this Court, appellant is ordered to indemnify the
offended party in the amount of fifty thousand pesos (P50,000.00). HAICET

DECISION

PUNO, J : p

Rape is an odious crime. It becomes more despicable when committed

against a person deprived of reason. Such was the case of Lolita Jaban, a 24-year
old mental retardate. cdta

A complaint was initiated by Jovita Jaban against Armando Romua for

raping her retarded daughter, Lolita. The Information 1 against him, dated April 10,
1990, was subsequently filed before the Regional Trial Court of Kabacan,
Cotabato. 2 It reads:
"That on or about 9:30 o'clock in the evening of January 31, 1990,
at Barangay Katidtuan, Municipality of Kabacan, Province of Cotabato,
Philippines, and within the jurisdiction of this Honorable Court, the said
accused, taking advantage of a feeble-minded, idiotic woman, Lolita
Jaban, did then and there, willfully, unlawfully and feloniously have carnal
knowledge with said Lolita Jaban, who by reason of her said mental
abnormality or deficiency, has no will or otherwise deprived of reason.
"CONTRARY TO LAW."
Romua pleaded 'not guilty' upon arraignment. 3 Trial ensued.
The prosecution evidence rests chiefly on the testimonies of Jovita Jaban,
Dr. Crisostomo Necesario, Jr., P/Sgt. Jesus Ragonton and P/Sgt. Polcronio, Dulay.
The records reveal that Jovita Jaban, a widow, lives in Katidtuan, Kabacan,
Cotabato, with her daughter Lolita Jaban and the latter's two-year old child. The
man who sired Lolita's child is unknown since her mental condition has rendered
her incapable of talking or communicating with anyone.
 Armando Romua, husband of Jovita's niece, resides in the same
neighborhood, about ten (10) meters away from Jovita's house. He and his wife
used to look after Lolita whenever Jovita had to leave the house to work as a
laundry woman. At times, Romua would go to Jovita's house and give food to Lolita
when her mother was not around. 4
In the evening of January 31, 1990, Jovita went to the house of Leodegario
Pablo, father-in-law of Romua, to watch a video. Romua and his wife were also at
Pablo's house watching the video. Romua did not finish the video as he told his
wife that he would go home to sleep. He left at about 9:00 p.m. 5
After Romua left, Jovita felt nervous for no apparent reason. Nevertheless,
she continued watching the video and went home at about 9:30 p.m. When she
reached her house and opened its door, she encountered Romua who was inside
and about to leave. Jovita asked him what he did inside her house. He replied that
he was just checking because the baby was crying. Romua was clad in brief and
T-shirt. Suspecting that Romua molested Lolita, she held on to his arms and
shouted for help. Their neighbors arrived, including Romua's wife and another
relative, Lito Amosin. Amosin led them inside the house to avoid scandal. Inside
the house, Jovita found Lolita completely naked. 6 She immediately reported the
incident to the authorities.
The following morning, at about 10:00 a.m., Jovita brought Lolita to Dr.
Crisostomo Necesario, Jr., for a medical examination. Dr. Necesario found sperm
in the vaginal canal of Lolita and opined that she had sexual contact one (1) or two
(2) days before the examination. 7 Jovita and Lolita proceeded to Kabacan Police
Station where Jovita executed her sworn statement before P/Sgt. Jesus T.
Ragonton. 8
We now consider the defense's version of the incident.
On January 31, 1990, at about 9:00 p.m., Armando Romua watched a video
tape at his father-in-law's house. His aunt Jovita came and joined them. After a
while, he felt sleepy and he told his wife he would go home. He went straight to his
house, some twenty (20) meters away from his father-in-law's house. 9
Allegedly, he heard something fall inside Jovita's house. He went to Jovita's
house to verify if anything untoward has happened. He peeped inside and saw the
baby jumping on Lolita's abdomen. He started to leave after finding nothing wrong.
He then met his aunt Jovita who suddenly shouted and accused him of raping
Lolita. His wife and Lito Amosin came and pacified them. Romua denied he was
clad in brief. He claimed he was wearing a T-shirt and maong pants. He said that
Lolita was not naked but wore a dress. Her dress, however, was raised.
Lito Amosin, brother in-law of Romua, testified for the defense. He narrated
that on the material date and time, he saw his aunt Jovita and Romua standing by
the road, in front of Jovita's house. Jovita was holding on to Romua's hands. He
approached the two and led them inside the house to avoid scandal. Amosin
affirmed that Romua was wearing a T-shirt and long pants that evening.
On April 29, 1993, the trial court rendered its Decision 10 finding appellant
guilty as charged. Its dispositive portion reads:
"WHEREFORE, premises considered, accused Armando Romua
is found guilty by proof beyond reasonable doubt of Rape and applying
the Indeterminate Sentence Law, is sentenced to suffer (the) penalty of
imprisonment of 12 years and one day to 14 years and 8 months.
"SO ORDERED."
Accused appealed to the Court of Appeals. He contended that:
"I
"THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE
ACCUSED-APPELLANT MAINLY ON THE BASIS OF THE TESTIMONY
OF THE MOTHER OF THE VICTIM AND THE EXAMINING PHYSICIAN
WITHOUT THE VICTIM IDENTIFYING THE ACCUSED-APPELLANT.
"II
"THE TRIAL COURT GRAVELY ERRED IN APPLYING THE RULING IN
PEOPLE VS. TOMENTOS IN THE INSTANT CASE WITHOUT EVEN
DISCUSSING ITS FINDINGS OF FACTS IN THE ASSAILED DECISION.
"III
"THE TRIAL COURT GRAVELY ERRED IN FINDING THE ACCUSED-
APPELLANT GUILTY BEYOND REASONABLE DOUBT OF THE CRIME
CHARGED."
After review, the appellate court affirmed the judgment of the trial court but
modified the penalty to reclusion perpetua. 11 The records of the case were then
forwarded to this Court for further review.
We affirm appellant's conviction.
Appellant maintains that the victim's mental depravity was not established
by the prosecution. He also insists that no concrete evidence linked him to the
crime charged because he was not identified by the victim.
We reject these contentions.
The mental depravity of the victim was established through the testimonies
of the prosecution witnesses. 12 Dr. Necesario testified 13 as follows:
"FISCAL BAYOG:
 "Q Now, were you able to ask the victim on (sic) what happened to her a
day before you previously examined her?
"(DR. NECESARIO):
"A The victim is mentally retarded.
"Q When you say mentally retarded; can she speak?
"A She uttered words that cannot be understood.
"Q What is the age of the victim?
"A According to the data, 24."
Significantly, during cross-examination, the defense did not make any
attempt to impugn the opinion of the doctor that the victim is a mental retardate.
Likewise, Jovita Jaban testified on the mental condition of her daughter
without any challenge from the appellant. Her testimony 14 is as follows:
"(FISCAL BAYOG):
"Q When you noticed this accused Armando Romua wearing his brief and
T-shirt, what did you do if any?
"(JOVITA JABAN)
"A I held his hand because I suspected he molested my child.
"Q You are referring to your daughter Lolita Jaban who is an abnormal
daughter?
"A Yes, sir.
xxx xxx xxx
"Q You refer to Lolita Jaban, where is this Lolita Jaban now?
"A (The witness is pointing at a woman sitting at the bench who is always
shouting during the hearing).
"Q By the way, could this Lolita Jaban could [sic] utter any words to
express what she desires? cdti

"A She cannot talk but she could only shout.

"Q Could she express her thoughts or idea by expression or by
communicating signs?
"A No, sir."
Another witness for the prosecution, Sgt. Ragonton, similarly testified: 15

"(FISCAL BAYOG):
 "Q Being the investigator at that time, do you remember if a person
reported to you about an alleged rape?
"(SGT. RAGONTON):
"A Yes, sir.
"Q Do you recall who was that person who came to your office and
reported the incident (which) occurred previously?
"A The complainant is retarded and her mother is Mrs. Jaban."
Throughout the trial of the case, appellant did not challenge the mental
abnormality of the victim. It is too late for him to raise this factual issue before this
tribunal. Besides, defense witness Lito Amosin also confirmed the mental
retardation of the victim in open court. 16 Indeed, appellant himself was aware of
the mental state of the victim. They are relatives and neighbors. He used to take
care of the victim when her mother was away.
It is not an easy task to ascertain the identity of the rapist when the victim is
deprived of reason as in the case at bar. Nonetheless, said identity can be
established with certainty from the events preceding or following the bestial
act. 17 In People vs. Danao, 18 we held:
"Direct evidence of the commission of a crime is not the only matrix
wherefrom a trial court may draw its conclusion and finding of guilt.
Indeed, there are crimes when there are no eyewitnesses at all. Under
such situations, the courts are allowed to rule on the bases of
circumstantial evidence. Such species of evidence is sufficient for
conviction if (1) there is more than one circumstance, (2) the facts from
which the inferences are derived are proven, and (3) the combination of
all the circumstances is such as to produce a conviction beyond
reasonable doubt."
In the case at bar, several circumstances indicate appellant as the
perpetrator of the crime, viz:
(1) Appellant knew that the victim was alone in her house because her
mother was also watching the video tape at Pablo's house.
(2) Appellant went to the house of the victim ostensibly to check if anything
untoward happened to her. There is no evidence that anybody else visited the
victim before the incident.
(3) When appellant emerged from her house, Jovita saw him clad in brief
while the victim was stripped of her clothes. Appellant's wife who arrived at the
scene later was not presented in court to disprove Jovita's allegation.
(4) The doctor found sperm cells in the vaginal canal of the victim when he
examined her less than 24 hours after the incident.
 These circumstances lead us to the inescapable conclusion that it was
appellant who took advantage of the mental frailty of the victim and raped her.
Appellant is guilty of rape under Article 335 of the Revised Penal Code, viz:
"Art. 335. When and how rape is committed. — Rape is committed
by having carnal knowledge of a woman under any of the following
circumstances.
"1. By using force or intimidation;
"2. When the woman is deprived of reason or otherwise
unconscious; and
"3. When the woman is under twelve years of age or is demented.
"The crime of rape shall be punished by reclusion perpetua.
"xxx xxx xxx."
Appellant's bare denial cannot exculpate him. He was not even consistent
in his story. For one, he claimed he heard something fall inside the house of the
victim. He went there and peeped inside as he thought. He saw Lolita's child
jumping on her abdomen. Since everything looked all right inside the house, he
left and returned to his house. It was along the way that he met his aunt Jovita.
Later, however, appellant modified his story. He testified that when he peeped
inside and saw Lolita's baby crying, he left immediately to call his aunt Jovita.
Appellant met her on the way but his aunt was already shouting for help as she
suspected that something had happened to Lolita. 19
For another, appellant initially testified that his aunt did not accuse him of
raping her daughter. 20 On cross-examination, however, he again changed his
answer and admitted that his aunt immediately accused him of raping Lolita. 21
The records also show that appellant could not give straightforward answers
to the simple questions propounded by his counsel. For instance, appellant
pretended he did not know the victim's name. On further questioning, he identified
the victim as "Omel"; that Lolita Jaban and "Omel" refer to the same
person. 22 When asked whether the victim was wearing a blouse or was naked,
appellant was evasive and gave the lame excuse that he could not remember. On
follow-up questioning, however, he said that the victim was wearing "something
like (a) dress." 23 On cross-examination, he conceded that she was wearing a
dress but "it was raised up and (she) was naked." 24 When asked if he saw Lolita
when he peeped inside the house, he said he did not. A few questions later, he
flipped-flopped and admitted she was inside the house. 25
In stark contrast, Jovita gave a credible account of the events that evening.
She was steadfast in her testimony that she saw the appellant without his pants
on, inside her house. She also found her daughter naked. There were traces of
sperm in her daughter's vaginal canal. Her story deserves full faith and credit. A
mother would not expose her daughter's misfortune to the public if she was not
motivated by an honest desire to have the culprit punished. 26
We note too that there was no grudge between Jovita and appellant prior to
the incident. There is thus no motive for Jovita to distort the truth. 27 It is a settled
rule that in the absence of evidence of improper motive on the part of a prosecution
witness to falsely testify against an accused or falsely implicate him in the
commission of a crime, the testimony deserves credence. 28
Appellant also contends that the trial court misapplied People
vs. Tomentos 29 to the case at bar. He points out that in Tomentos, the mental
retardation of the victim was proven by medical evidence and the victim herself
testified and identified the accused.
We are not impressed. Mental retardation can be proved by other
evidence. 30 As afore-discussed, the mental retardation of Lolita was established
by several witnesses and was not contested by appellant. While no witness directly
saw appellant rape the victim, nonetheless, various circumstantial evidence leave
no doubt that he committed the dastardly offense.
We now come to the penalty. We agree with the Court of Appeals that the
proper penalty in this case is reclusion perpetua. 31 We have held in People
vs. Fabro 32 that for offenses in which the law prescribes the single, indivisible
penalty of reclusion perpetua, it is the first paragraph of Article 63 of the Revised
Penal Code and not the Indeterminate Sentence Law which applies. Said article
provides that "in all cases in which the law prescribes a single and indivisible
penalty, it shall be applied by the courts regardless of any mitigating or aggravating
circumstances that may have attended the commission of the deed."
IN VIEW WHEREOF, we find appellant ARMANDO ROMUA guilty as
charged and accordingly modify his sentence to reclusion perpetua. In line with the
previous decisions 33 of this Court, appellant is ordered to indemnify the offended
party in the amount of fifty thousand pesos (P50,000.00). Costs against
appellant. cdtai

SO ORDERED.
Regalado, Romero, Mendoza and Torres, Jr., JJ., concur.
||| (People v. Romua, G.R. No. 126175, [May 29, 1997], 339 PHIL 198-209)

SECOND DIVISION

[G.R. No. L-28547. February 22, 1974.]

 THE PEOPLE OF THE PHILIPPINES, plaintiff-
appellee, vs. ELIAS JARANILLA, RICARDO SUYO, FRANCO
BRILLANTES and HEMAN GOBRICETA, accused. ELIAS
JARANILLA RICARDO SUYO, and FRANCO
BRILLANTES, defendants-appellants.

Solicitor General Felix V . Makasiar, Assistant Solicitor General

Felicisimo R. Rosete and Solicitor Antonio M. Martinez for plaintiff-appellee.
Sixto P. Dimaisip for defendants-appellants.

DECISION

AQUINO, J : p

This is an appeal of defendants Elias Jaranilla, Ricardo Suyo and Franco

Brillantes from the decision of the Court of First Instance of Iloilo, which
convicted them of robbery with homicide, sentenced each of them to reclusion
perpetua and ordered them to pay solidarily the sum of six thousand pesos to
the heirs of Ramonito Jabatan and the sum of five hundred pesos to Valentin
Baylon as the value of five fighting cocks (Criminal Case No. 11082).
The evidence for the prosecution shows that at around eleven o'clock in
the evening of January 9, 1966, Heman Gorriceta, who had just come from Fort
San Pedro in Iloilo City, was driving a Ford pickup truck belonging to his sister,
Remia G. Valencia. While he was in front of the Elizalde Building on J. M. Basa
Street, he saw Ricardo Suyo, Elias Jaranilla and Franco Brillantes. They hailed
Gorriceta who stopped the truck. Jaranilla requested Gorriceta to bring them to
Mandurriao, a district in another part of the city. Gorriceta demurred. He told
Jaranilla that he (Gorriceta) was on his way home.
Jaranilla prevailed upon Gorriceta to take them to Mandurriao because
Jaranilla ostensibly had to get something from his uncle's place. So, Jaranilla,
Brillantes and Suyo boarded the pickup truck which Gorriceta drove to
Mandurriao.
Upon reaching Mandurriao, Gorriceta parked the truck at a distance of
about fifty to seventy meters from the provincial hospital. Jaranilla, Suyo and
Brillantes alighted from the vehicle. Jaranilla instructed Gorriceta to wait for
them. The trio walked in the direction of the plaza. After an interval of about ten
to twenty minutes, they reappeared. Each of them was carrying two fighting
cocks. They ran to the truck.
 Jaranilla directed Gorriceta to start the truck because they were being
chased. Gorriceta drove the truck to Jaro (another district of the city) on the
same route that they had taken in going to Mandurriao.
It is important to note the positions of Gorriceta and his three companions
on the front seat of the truck. Gorriceta, as the driver, was on the extreme left.
Next to him on his right was Suyo. Next to Suyo was Brillantes. On the extreme
right was Jaranilla.
While the truck was traversing the detour road near the Mandurriao
airport, then under construction, Gorriceta saw in the middle of the road
Patrolmen Ramonito Jabatan and Benjamin Castro running towards them.
Gorriceta slowed down the truck after Patrolman Jabatan had fired a warning
shot and was signalling with his flashlight that the truck should stop. Gorriceta
stopped the truck near the policeman. Jabatan approached the right side of the
truck near Jaranilla and ordered all the occupants of the truck to go down. They
did not heed the injunction of the policeman.
Brillantes pulled his revolver but did not fire it. Suyo did nothing. Jaranilla,
all of a sudden, shot Patrolman Jabatan. The shooting frightened Gorriceta. He
immediately started the motor of the truck and drove straight home to La Paz,
another district of the city. Jaranilla kept on firing towards Jabatan.
Jaranilla, Suyo and Brillantes alighted in front of Gorriceta's house.
Gorriceta parked the truck inside the garage. Jaranilla warned Gorriceta not to
tell anybody about the incident. Gorriceta went up to his room. After a while, he
heard policemen shouting his name and asking him to come down. Instead of
doing so, he hid in the ceiling. It was only at about eight o'clock in the morning
of the following day that he decided to come down. His uncle had counselled
him to surrender to the police. The policemen took Gorriceta to their
headquarters. He recounted the incident to a police investigator.
Victorino Trespeces, whose house was located opposite the house of
Valentin Baylon on Taft Street in Mandurriao, testified that before midnight of
January 9, 1966, he conducted a friend in his car to the housing project in the
vicinity of the provincial hospital at Mandurriao. As he neared his residence, he
saw three men emerging from the canal on Taft Street in front of Baylon's
house. He noticed a red Ford pickup truck parked about fifty yards from the
place where he saw the three men. Shortly thereafter, he espied the three men
carrying roosters. He immediately repaired to the police station at Mandurriao.
He reported to Patrol men Jabatan and Castro what he had just witnessed. The
two policemen requested him to take them in his car to the place where he saw
the three suspicious-looking men. Upon arrival thereat, the men and the truck
were not there anymore.
 Trespeces and the policemen followed the truck speeding towards Jaro.
On reaching the detour road leading to the airport, the policemen left the car
and crossed the runway which was a shortcut. Their objective was to intercept
the truck. Trespeces turned his car around in order to return to Mandurriao. At
that moment he heard gunshots. He stopped and again turned his car in the
direction where the shots had emanated. A few moments later, Patrolman
Castro came into view. He was running. He asked Trespeces for help because
Jabatan, his comrade, was wounded. Patrolman Castro and Trespeces lifted
Jabatan into the car and brought him to the hospital. Trespeces learned later
that Jabatan was dead.
Doctor Raymundo L. Torres, the chief medico-legal officer of the Iloilo
City police department, conducted an autopsy on the remains of Patrolman
Jabatan. He found:
(1) Contusion on left eyebrow.
(2) Bullet wound one centimeter in diameter, penetrating left
anterior axilla, directed diagonally downward to the right, perforating the
left upper lobe of the lungs through and through, hitting the left
pulmonary artery and was recovered at the right thoracic cavity; both
thoracic cavity was full of blood.
Cause of death: Shock, hemorrhage, secondary to bullet wound.
Valentin Baylon, the owner of the fighting cocks, returned home at about
six o'clock in the morning of January 10, 1966. He discovered that the door of
one of his cock pens or chicken coops (Exhs. A and A-1) was broken. The
feeding vessels were scattered on the ground. Upon investigation he found that
six of his fighting cocks were missing. Each coop contained six cocks. The coop
was made of bamboo and wood with nipa roofing. Each coop had a door which
was locked by means of nails. The coops were located at the side of his house,
about two meters therefrom.
Baylon reported the loss to the police at Mandurriao. At about ten o'clock,
a group of detectives came to his house together with the police photographer
who took pictures of the chicken coops. The six roosters were valued at one
hundred pesos each. Two days later, he was summoned to the police station
at Mandurriao to identify a rooster which was recovered somewhere at the
airport. He readily identified it as one of the six roosters which was stolen from
his chicken coop (Exh. B).
Gorriceta, Jaranilla, Suyo and Brillantes were charged with robo con
homicidio with the aggravating circumstances of use of a motor vehicle,
nocturnity, band, contempt of or with insult to the public authorities and
recidivism. The fiscal utilized Gorriceta as a state witness. Hence, the case was
dismissed as to him.
 On February 2, 1967, after the prosecution had rested its case and before
the defense had commenced the presentation of its evidence, Jaranilla
escaped from the provincial jail. The record does not show that he has been
apprehended.
The judgment of conviction was promulgated as to defendants Suyo and
Brillantes on October 19, 1967 when it was read to them in court. They signed
at the bottom of the last page of the decision.
There was no promulgation of the judgment as to Jaranilla, who, as
already stated, escaped from jail (See Sec. 6, Rule 120, Rules of Court).
However, the notice of appeal filed by defendants' counsel de
oficio erroneously included Jaranilla. Inasmuch as the judgment has not been
promulgated as to Jaranilla, he could not have appealed. His appeal through
counsel cannot be entertained. Only the appeals of defendants Suyo and
Brillantes will be considered.
In convicting Suyo, Jaranilla and Brillantes of robo con homicidio, the trial
court assumed that the taking of the six fighting cocks was robbery and that
Patrolman Jabatan was killed "by reason or on the occasion of the robbery"
within the purview of article 294 of the Revised Penal Code.
In this appeal the appellants contend that the trial court erred in not
finding that Gorriceta was the one who shot the policeman and that Jaranilla
was driving the Ford truck because Gorriceta was allegedly drunk. Through
their counsel de oficio, they further contend that the taking of the roosters was
theft and, alternatively, that, if It was robbery, the crime could not be robbery
with homicide because the robbery was already consummated when Jabatan
was killed.
After evaluating the testimonies of Gorriceta and Brillantes as to who was
driving the truck and who shot the policeman, this Court finds that the trial court
did not err in giving credence to Gorriceta's declaration that he was driving the
truck at the time that Jaranilla shot Jabatan.
The improbability of appellant's theory is manifest. The truck belonged to
Gorriceta's sister. He was responsible for its preservation. He had the obligation
to return it to his sister in the same condition when he borrowed it. He was
driving it when he saw Brillantes, Jaranilla and Suyo and when he allegedly
invited them for a paseo. There is no indubitable proof that Jaranilla knows how
to drive a truck.
The theory of the defense may be viewed from another angle. If,
according to the appellants, Gorriceta asked Jaranilla to drive the truck because
he (Gorriceta) was drunk, then that circumstance would be inconsistent with
their theory that Gorriceta shot Jabatan. Being supposedly, intoxicated,
Gorriceta would have been dozing when Jabatan signalled the driver to stop
the truck and he could not have thought of killing Jabatan in his inebriated state.
He would not have been able to shoot accurately at Jabatan. But the fact is that
the first shot hit Jabatan. So, the one who shot him must have been a sober
person like Jaranilla.
Moreover, as Jaranilla and his two comrades were interested in
concealing the fighting cocks, it was Jaranilla, not Gorriceta, who would have
the motive for shooting Jabatan. Consequently, the theory that Gorriceta shot
Jabatan and that Jaranilla was driving the truck appears to be implausible.
Was the taking of the roosters robbery or theft? There is no evidence that
in taking the six roosters from their coop or cages in the yard of Baylon's house
violence against or intimidation of persons was employed. Hence, article 294
of the Revised Penal Code cannot be invoked.
Neither could such taking fall under article 299 of the Revised Penal
Code which penalizes robbery in an inhabited house (casa habitada), public
building or edifice devoted to worship. The coop was not inside Baylon's house.
Nor was it a dependency thereof within the meaning of article 301 of the
Revised Penal Code.
Having shown the inapplicability of articles 294 and 299, the next inquiry
is whether the taking of the six roosters is covered by article 302 of the Revised
Penal Code which reads:
"ART. 302. Robbery in an uninhabited place or in private building.
— Any robbery committed in an uninhabited place or in a building other
than those mentioned in the first Paragraph of article 299, if the value of
the property exceeds 250 pesos, shall be punished by prision
correccional in its medium and maximum periods provided that any of
the following circumstances is present:
1. If the entrance has been effected through any opening not
intended for entrance or egress.
2. If any wall, roof, floor or outside door or window has been
broken.
3. If the entrance has been effected through the use of false keys,
picklocks or other similar tools.
4. If any door, wardrobe, chest, or any sealed or closed furniture
or receptacle has been broken.
5. If any closed or sealed receptacle, as mentioned in the
preceding paragraph, has been removed, even if the same be broken
open elsewhere.
xxx xxx xxx"
 In this connection, it is relevant to note that there is an inaccuracy in the
English translation of article 302. The controlling Spanish original reads:
"ART. 302. Robo en lugar no habitado o edificio particular. — El
roho cometido en un lugar no habitado o en un edificio que no sea de
los comprendidos en el parrafo primero del articulo 299, . . ."(Tomo 26,
Leyes Publicas 479).
The term "lugar no habitado" is erroneously translated as "uninhabited place",
a term which may be confounded with the expression "uninhabited place" in
articles 295 and 300 of the Revised Penal Code, which is the translation
of despoblado and which is different from the term lugar no habitado in article
302. The term lugar no habitado is the antonym of casa habitada (inhabited
house) in article 299.
One essential requisite of robber with force upon things under articles
299 and 302 is that the malefactor should enter the building or dependency
where the object to be taken is found. Articles 299 and 302 clearly contemplate
that the malefactor should enter the building (casa habitada o lugar no habitado
o edificio). If the culprit did not enter the building, there would be no robbery
with force upon things. (See Albert, Revised Penal Code. 1932 edition, page
688).
Thus, where the accused broke the show-window of the Bombay Palace
Bazar at Rizal Avenue, Manila and removed forty watches therefrom, the crime
was theft and not robbery because he did not enter the building. The show-
window was outside the store. (People vs. Adorno, CA 40 O. G. 567, per
Montemayor, J., who later became a member of this Court). *
In the instant case, the chicken coop where the six roosters were taken
cannot be considered a building within the meaning of article 302. Not being a
building, it cannot be said that the accused entered the same in order to commit
the robbery by means of any of the five circumstances enumerated in article
302.
The term "building" in article 302, formerly 512 of the old Penal Code,
was construed as embracing any structure not mentioned in article 299
(meaning not an "inhabited house or public building or edifice devoted to
worship" or any dependency thereof) used for storage and safekeeping of
personal property. As thus construed, a freight car used for the shipment of
sugar was considered a private building. The unnailing of a strip of cloth nailed
over the door, the customary manner of sealing a freight car, was held to
constitute breaking by force within the meaning of article 512, now article 302.
(U.S. vs. Magsino, 2 Phil. 710).
The ruling in the Magsino case is in conflict with the rulings of the
Supreme Court of Spain that a railroad employee who, by force, opens a sealed
or locked receptacle deposited in a freight car, does not commit robbery He is
guilty of theft because a railroad car is neither a house nor a building within the
meaning of article 302 which corresponds to article 525 of the 1870 Spanish
Penal Code. Article 302 refers to houses or buildings which, while not actually
inhabited, are habitable. Thus, a pig sty is not a building within the meaning of
article 302. The stealing of hogs from a pig sty is theft and not robbery, although
the culprit breaks into it. Article 302 refers to habitable buildings. (Guevara,
Revised Penal Code, 1939 Edition, pages 555-6, citing II Hidalgo Codigo Penal
636-7, 642, which in turn cites the decisions of the Spanish Supreme Court
dated March 2, 1886 and April 25, 1887). **
As may be seen from the photographs (Exhs. A and A-1), Baylon's coop,
which is known in the dialect as tangkal or kulungan, is about five yards long,
one yard wide and one yard high. It has wooden stilts and bamboo strips as
bars. The coop barely reaches the shoulder of a person of average height like
Baylon. It is divided into six compartments or cages. A compartment has an
area of less than one cubic yard. A person cannot be accommodated inside the
cage or compartment. It was not intended that a person should go inside that
compartment. The taking was effected by forcibly opening the cage and putting
the hands inside it to get the roosters.
Therefore, the taking of the six roosters from their coop should be
characterized as theft and not robbery. The assumption is that the accused
were animated by single criminal impulse. The conduct of the accused reveals
that they conspired to steal the roosters. The taking is punishable as a single
offense of theft. Thus, it was held that the taking of two roosters in the same
place and on the same occasion cannot give rise to two crimes of theft (People
vs. De Leon, 49 Phil. 437, citing decision of Supreme Court of Spain dated July
13, 1894 and 36 C. J. 799; People vs. Tumlos, 67 Phil. 320; People vs.
Villanueva, 49 O.G. 5448, L-10239, August 7, 1953).
Nocturnity and use of a motor vehicle are aggravating. Those
circumstances facilitated the commission of the theft. The accused intentionally
sought the cover of night and used a motor vehicle so as to insure the success
of their nefarious enterprise (People vs. Tan, 89 Phil. 647, 660; People vs.
Gardon, 104 Phil. 372).
Also to be appreciated against appellants Suyo and Brillantes is the
aggravating circumstance of recidivism which was alleged in, the information.
They admitted their previous convictions for theft (130, 132 tsn; Exhs. I and J;
Art. 14[9], Revised Penal Code).
The theft of six roosters valued at six hundred pesos is punishable
by prision correccional in its minimum and medium periods (Art. 309[3],
Revised Penal Code). That penalty should be imposed in its maximum period
because only aggravating circumstances are present (Art. 64[3], Revised Penal
Code).
Although recidivists, appellants Suyo and Brillantes are not habitual
delinquents. They are entitled to an indeterminate sentence (Sec. 2, Act No.
4103).
With respect to the killing of Patrolman Jabatan, it has already been
noted that the evidence for the prosecution points to Jaranilla as the malefactor
who shot that unfortunate peace officer. The killing was homicide because it
was made on the spur of the moment. The treacherous mode of attack was not
consciously or deliberately adopted by the offender (U.S. vs. Namit, 38 Phil.
926; People vs. Tumaob, 83 Phil. 738; People vs. Abalos, 84 Phil. 771).
The twenty-four year old Jabatan was an agent of authority on night duty
at the time of the shooting. He was wearing his uniform. The killing should be
characterized as a direct assault (atentado) upon an agent of authority (Art.
148, Revised Penal Code) complexed with homicide. The two offenses resulted
from a single act. (Art. 48, Revised Penal Code; People vs. Guillen, 85 Phil.
307; People vs. Lojo, Jr., 52 Phil. 390).
The evidence for the prosecution does not prove any conspiracy on the
part of appellants Jaranilla, Suyo and Brillantes to kill Jabatan. They conspired
to steal the fighting cocks. The conspiracy is shown by the manner in which
they perpetrated the theft. They went to the scene of the crime together. They
left the yard of Baylon's residence, each carrying two roosters. They all boarded
the getaway truck driven by Gorriceta.
The theft was consummated when the culprits were able to take
possession of the roosters. It is not an indispensable element of theft that the
thief carry, more or less far away, the thing taken by him from its owner (People
vs. Mercado, 65 Phil. 665; Duran vs. Tan, 85 Phil. 476; U.S. vs. Adiao, 38 Phil.
754).
It is not reasonable to assume that the killing of any peace officer, who
would forestall the theft or frustrate appellants' desire to enjoy the fruits of the
crime, was part of their plan. There is no evidence to link appellants Suyo and
Brillantes to the killing of Jabatan, except the circumstance that they were with
Jaranilla in the truck when the latter shot the policeman. Gorriceta testified that
Suyo did not do anything when Jabatan approached the right side of the truck
and came in close proximity to Jaranilla who was on the extreme right. Brillantes
pulled his revolver which he did not fire (47, 53-55 tsn). Mere presence at the
scene of the crime does not necessarily make a person a co-principal thereof.
Jaranilla heard Gorriceta's testimony that he (Jaranilla) shot Jabatan.
Instead of taking the witness stand to refute the testimony of Gorriceta, Jaranilla
escaped from jail. That circumstance is an admission of guilt.
 The instant case is different from People vs. Mabassa, 65 Phil. 568
where the victim was killed on the occasion when the accused took his chickens
under the house. It is distinguishable from the People vs. Gardon, 104 Phil. 372
and People vs. Salamudin No. 1, 52 Phil. 670 (both cited by the Solicitor
General) where the robbery was clearly proven and the homicide was
perpetrated on the occasion of the robbery. As already noted, theft, not robbery,
was committed in this case.
The situation in this case bears some analogy to that found in the People
vs. Basisten, 47 Phil. 493 where the homicide committed by a member of the
band was not a part of the common plan to commit robbery. Hence, only the
person who perpetrated the killing was liable for robbery with homicide. The
others were convicted of robbery only.
There is a hiatus in the evidence of the prosecution as to the participation
of Suyo and Brillantes in the killing of Jabatan by Jaranilla. As already stated,
no robbery with homicide was committed. Therefore, it cannot be concluded
that those two appellants have any responsibility for Jabatan's death. Their
complicity in the homicide committed by Jaranilla has not been established.
WHEREFORE, the judgment of the trial court convicting appellants
Ricardo Suyo and Franco Brillantes of robbery with homicide is reversed. They
are acquitted of homicide on the ground of reasonable doubt.
As coprincipals with Elias Jaranilla in the theft of the six fighting cocks,
they are (a) each sentenced to an indeterminate penalty of six (6) months
of arresto mayor as minimum to four (4) years and two (2) months of prision
correccional as maximum and (b) ordered to indemnify solidarily the
complainant, Valentin Baylon, in the sum of five hundred pesos (P500). Each
appellant should pay one-third of the costs.
As to the liability of Elias Jaranilla for theft and homicide, with direct
assault upon an agent of authority, the trial court should render a new judgment
consistent with this opinion (See Sec. 19, Art. IV, Constitution).
So ordered.
Zaldivar, Fernando, Antonio and Fernandez, JJ ., concur.
||| (People v. Jaranilla, G.R. No. L-28547, [February 22, 1974], 154 PHIL 516-534)

||| SECOND DIVISION

[G.R. No. 123991. December 6, 1996.]

FELIX LADINO, petitioner, vs. HON. ALFONSO S. GARCIA and

PEOPLE OF THE PHILIPPINES, respondents. *
 Brillantes (Nachura) Navarro Jumamil Arcilla & Bello Law Offices for
petitioner.
The Solicitor General for respondents.

SYLLABUS

1. REMEDIAL LAW, CRIMINAL PROCEDURE; ARRAIGNMENT AND

PLEA; PLEA OF GUILTY TO A LESSER OFFENSE; THE DOWNGRADED
OFFENSE AND ITS LOWER PENALTY SHALL CONTROL THE ADJUDGMENT
OF AND ANY FURTHER PROCEEDINGS BEFORE THE COURT A QUO. — The
fact that the lesser offense, and its necessarily lower penalty, resulted from a plea
bargaining agreement is of no moment as far as the penalty to be imposed is
concerned. Plea bargaining is authorized by the present Rules and is in fact
required to be considered by the trial court at the pre-trial conference. The felony
of homicide which must constitute the basis for the penalty to be imposed having
been agreed upon among the requisite parties and approved by the trial court itself,
that downgraded offense and its lower penalty shall control the adjudgment of and
any further proceedings before the court a quo.
2. ID.; ID.; APPEAL; RULE IN CASE ONE OR MORE OF SEVERAL
ACCUSED OBTAINED A FAVORABLE JUDGMENT; APPLICABLE IN CASE AT
BAR. — The present rule is that an appeal taken by one or more of several
accused shall not affect those who did not appeal, except insofar as the judgment
of the appellate court is favorable and applicable to the latter. Our pronouncements
here with respect to petitioner Felix Ladino, his co-accused, are definitely favorable
and applicable to accused Restituto Amistad. He should not therefore be treated
as the odd man out, but should also benefit from the more beneficial indeterminate
sentence that we shall impose. In fact, under similar conditions and on the same
ratiocination, the aforecited Rule has justified the extension of our judgment of
acquittal to the co-accused who failed to appeal from the judgment of the trial court
which we subsequently reversed. IDCHTE

3. CRIMINAL LAW; PENALTIES; INDETERMINATE SENTENCE LAW; TO

DETERMINE WHETHER AN INDETERMINATE SENTENCE AND NOT A
STRAIGHT PENALTY IS PROPER, WHAT IS CONSIDERED IS THE PENALTY
ACTUALLY IMPOSED BY THE TRIAL COURT, AFTER CONSIDERING THE
ATTENDANT CIRCUMSTANCES, AND NOT THE IMPOSABLE PENALTY. — It
should be kept in mind that to determine whether an indeterminate sentence and
not a straight penalty is proper, what is considered is the penalty
actually imposed by the trial court, after considering the attendant circumstances,
and not the imposable penalty. Corollarily, it would be an unduly strained postulate
that a sentence arrived at by a court after a valid plea bargaining should constitute
an exception to the Indeterminate Sentence Law in addition to those enumerated
in Section 2 thereof.CSIcHA

DECISION

REGALADO, J : p

A little more circumspection could have avoided this appellate recourse, as

well as the routinary referral to the Solicitor General since this is a criminal case
on appeal, and rendered unnecessary this opinion reiterating settled and
elementary rules of criminal law.
The facts are not in dispute. Petitioner and one Restituto Amistad were
charged with the special complex crime of robbery with homicide in Criminal
Case No. TG-2450-95 filed in Branch 18 of the Regional Trial Court in
Tagaytay City, presided by respondent judge. Both accused pleaded not guilty
when arraigned.
At the hearing of the case on February 5, 1996, both accused offered to
plead guilty to the lesser offense of simple homicide. In open court, the widow
of the deceased victim, as private complainant, and the assistant provincial
prosecutor representing the People in the case, expressed their conformity
thereto. That agreement was unqualifiedly approved by respondent judge.
Pursuant to the plea of guilty to the crime of homicide, the trial court
rendered an "Order" on February 19, 1996, reciting the aforestated
antecedents, declaring both accused guilty beyond reasonable doubt of the
crime of homicide, and sentencing each of them to a prison term of 14 years,
8 months and 1 day to 17 years, 4 months and 1 day of reclusion
temporal, 1 and to severally pay the civil liability.
Accused having questioned the penalty imposed on them in light of the
provisions of the Indeterminate Sentence Law, 2 and the court below having
refused to reconsider the same, the case is now before us via a petition for
review on certiorari filed by one of the accused on the lone question of law as
to whether or not the indeterminate sentence meted by the trial court is
correct. We shall, therefore, go back to basics.
Preliminary, it will be noted that the indeterminate sentence in question
has a range of 14 years, 8 months and 1 day, as minimum, to 17 years 4
months and 1 day, as maximum. In fine, the minimum is within the range
of reclusion temporal in its medium period, while the maximum is reclusion
temporal in its maximum period. This latter part, by itself, is erroneous.
 As a simple matter of law, the penalty for homicide under Article 249 of
the Revised Penal Code is reclusion temporal in its entire extent and, in the
absence of modifying circumstances, the penalty should be imposed in its
medium period. 3 This has a duration of 14 years, 8 months and 1 day to 17
years and 4 months, and shall be the basis of "an indeterminate sentence the
maximum term of which shall be that which, in view of the attending
circumstances, could be properly imposed under the rules of the said
Code." 4 The lower court accordingly, overshot the permissible maximum of
the penalty, by only one day to be sure but constitutive of error just the same.
More importantly, it disregarded the further prescription that the
minimum of the sentence "shall be within the range of the penalty next lower
to that prescribed by the Code for the offense." 5 This would, therefore,
be prision mayor in any of its periods as the court, in the exercise of sound
discretion and the circumstances of the case, may consider commensurate
and proper. Parenthetically, there is no claim that the accused are excepted
from the coverage of the Indeterminate Sentence Law.
It would appear, therefore, that the lower court may have been bothered
or influenced by the fact that the crime originally charged was robbery with
homicide with a decidedly higher penalty of reclusion perpetua to
death, 6 whereas the accused had been allowed to plead guilty to homicide
punishable by reclusion temporal, and yet they would further ask for a still
lower minimum of prision mayor. Elsewise stated, the trial court must have
also proceeded on the hypothesis that where a lesser penalty has been
imposed for an offense lighter than that in the original indictment, because of
the agreement among the accused, the prosecutor and the offended party for
such reduced liability, the Indeterminate Sentence Law should not apply in
toto.
The position taken by the lower court is, therefore, perplexing in view of
the fact that it did impose what purports to be an indeterminate sentence,
albeit incorrect. Also, it overlooked the fact that it expressly found the accused
"GUILTY beyond reasonable doubt of the crime of Homicide." Necessarily, it
has to impose the penalty for that felony as prescribed in Article 249, without
regard to what would have been the penalty for the original offense charged
under Article 294(1), and to comply with the legal consequences flowing
therefrom.
The fact that the lesser offense, and its necessarily lower penalty,
resulted from a plea bargaining agreement is of no moment as far as the
penalty to be imposed is concerned. Plea bargaining is authorized by the
present Rules and is in fact required to be considered by the trial court at the
pre-trial conference. 7 The felony of homicide which must constitute the basis
for the penalty to be imposed having been agreed upon among the requisite
parties and approved by the trial court itself, that downgraded offense and its
 lower penalty shall control the adjudgment of and any further proceedings
before the court a quo.
From that undisputable and obvious premise, it follows that the
aforecited provisions of Act No. 4103, as amended, shall necessarily apply.
Also on that score, it should be kept in mind that to determine whether an
indeterminate sentence and not a straight penalty is proper, what is
considered is the penalty actually imposed by the trial court, after considering
the attendant circumstances, and not the imposable penalty. 8 Corollarily, it
would be an unduly strained postulate that a sentence arrived at by a court
after a valid plea bargaining should constitute an exception to the
Indeterminate Sentence Law in addition to those enumerated in Section 2
thereof.
We note one other aspect of this case which understandably has not
been mentioned by the parties and their legal representations in this appeal.
The other accused, Restituto Amistad, who is identically circumstanced and
was sentenced to serve the same penalty which has been demonstrated to be
mistakenly excessive, does not appear to have perfected an appeal from that
judgment. The record does not show the reason therefor.
Be that as it may, the present rule is that an appeal taken by one or
more of several accused shall not affect those who did not appeal, except
insofar as the judgment of the appellate court is favorable and applicable to
the latter. 9 Our pronouncements here with respect to petitioner Felix Ladino,
his co-accused, are definitely favorable and applicable to accused Restituto
Amistad. He should not therefore be treated as the odd man out, but should
also benefit from the more beneficial indeterminate sentence that we shall
impose. In fact, under similar conditions and on the same ratiocination, the
aforecited Rule has justified the extension of our judgment of acquittal to the
co-accused who failed to appeal from the judgment of the trial court which we
subsequently reversed. 10
ACCORDINGLY, the impugned disposition of respondent judge is
MODIFIED and herein petitioner Felix Ladino and accused Restituto Amistad
are hereby SENTENCED to each serve an indeterminate penalty of ten (10)
years of prision mayor, as minimum, to seventeen (17) years and four (4)
months of reclusion temporal, as maximum, but with the judgment of the
court a quo being AFFIRMED in all other respects.
SO ORDERED.
Romero, Puno, Mendoza and Torres, Jr., JJ ., concur.
||| (Ladino v. Garcia, G.R. No. 123991, [December 6, 1996], 333 PHIL 254-260)

FIRST DIVISION
 [G.R. No. 48938. September 27, 1943.]

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.

AMADEO CORRAL, defendant-appellant.

Pedro C. Quitain for appellant.

Solicitor General De la Costa and Solicitor De los Angeles for appellee.

SYLLABUS

1. CRIMINAL LAW; VIOLATION OF CONDITIONAL PARDON AFTER

EXPIRATION OF ORIGINAL SENTENCE. — After serving three years, three
months, and twenty days of a sentence of eight years and one day of prision
mayor plus a fine of P250 for falsification of a public document, appellant, on
July 31, 1913, was released from Bilibid in virtue of a conditional pardon
extended to him by Governor-General Forbes and duly accepted by him, the
conditions being as follows: (1) "that he shall not reside in the city of Manila nor
in the province of Rizal hereafter during the period of his sentence and (2) shall
not again be guilty of any infraction of the law punishable by imprisonment for
one year or more." Because of having voted in the general elections of June 5,
1934, notwithstanding his legal disqualification on account of previous
conviction, appellant was prosecuted in criminal cases Nos. 262 and 3263 in
the Court of First Instance of Davao for illegal voting and perjury in election
matter, respectively, and was convicted in both cases and sentenced in the first
case to suffer six months' imprisonment and to pay a fine of P300, in the second
case to suffer one year of imprisonment and to pay a fine of P300. Both
sentences were affirmed by this Court on January 31, 1936, in G. R. Nos. 42300
and 42311. Held: The appellant was guilty of violating the second condition of
his pardon which, unlike the first condition, is not limited to the duration of his
sentence.
2. ID.; ID. — The condition that the prisoner shall not again violate the
law even after the expiration of the time during which he would have been
confined were it not for the pardon, is perfectly reasonable. Christ Himself in
His divine mercy imposed it when He pardoned a sinner and said: "Go and sin
no more." The court fails to see any injustice in it. In the first place, if the
injunction against future violation of law were to be limited to the time of the
sentence against the prisoner, society would gain nothing by the remission of
that sentence; it could protect itself better against his possible recidivism or
relapse into criminality during that period of time by not remitting his sentence.
In the second place, a conditional pardon is ordinarily granted on the basis of
the prisoner's good behavior in the penitentiary and on the assumption that he
 has been sufficiently reformed and that if released he would become law-
abiding; and to fortify such assumption it is driven home to him that a relapse
on his part would subject him to two punishments as indicated by counsel.
Therefore, in his case the sword of Damocles is but a sword of Justice,
pointing to him the road that leads away from the penal institution towards the
goal of happiness and freedom. It would seem an aberration to regard such
constant admonition to be good as "an eternal condemnation."

DECISION

OZAETA, J : p

Appellant was prosecuted and convicted in the Court of First Instance

of Davao of a violation of article 159 of the Revised Penal Code, which reads
as follows:
"Art. 159. — Other cases of evasion of service of sentence. — The
penalty of prision correccional in its minimum period shall be imposed
upon the convict who, having been granted conditional pardon by the
Chief Executive, shall violate any of the conditions of such pardon.
However, if the penalty remitted by the granting of such pardon be higher
than six years, the convict shall then suffer the unexpired portion of his
original sentence."
It appears that after serving three years, three months, and twenty days
of a sentence of eight years and one day of prision mayor plus a fine of P250
for falsification of a public document, appellant, on July 31, 1913, was
released from Bilibid in virtue of a conditional pardon extended to him by
Governor-General Forbes and duly accepted by him, the conditions being as
follows: (1) "that he shall not reside in the city of Manila nor in the province of
Rizal hereafter during the period of his sentence and (2) shall not again be
guilty of any infraction of the law punishable by imprisonment for one year or
more."
Because of having voted in the general elections of June 5, 1934,
notwithstanding his legal disqualification on account of previous conviction,
appellant was prosecuted in criminal cases Nos. 3262 and 3263 in the Court
of First Instance of Davao for illegal voting and perjury in election matter,
respectively, and was convicted in both cases and sentenced in the first case
to suffer six months' imprisonment and to pay a fine of P300 and in the
second case to suffer one year of imprisonment and to pay a fine of P300.
Both sentences were affirmed by this Court on January 31, 1936, in G. R.
Nos. 42300 and 42311.
 The only question for us to decide is whether appellant, in view of his
subsequent conviction for violation of the Election Law as above stated,
violated that condition of his pardon that he "shall not again be guilty of any
infraction of the law punishable by imprisonment for one year or more."
Appellant's principal contention is that said condition should be
interpreted as being limited to the duration of his sentence. The trial court, in a
well-prepared decision, analyzed the two conditions of the pardon and pointed
out that while the first condition regarding the choice of residence was limited
to the duration of the sentence against the prisoner, no such limitation was
made as to the second condition regarding any future infraction of the law
punishable by imprisonment for one year or more. Counsel for the appellant
criticizes the trial court's interpretation as "nothing more than a resort to
pedantic technicality." He argues that if the condition of the pardon in question
is to be interpreted to extend indefinitely beyond the period of the sentence,
or, in other words, for the rest of appellant's life, appellant will "forever be in a
situation where the proverbial sword of Damocles will be perpetually hanging
over his head, constantly exposed to the danger of being subjected to two
punishments, to wit: the punishment for the crime that he might unfortunately
commit, and the punishment for the violation of the condition of his pardon."
"Under such circumstances," he continues, "the pardon ceases to be a
pardon. It becomes an eternal condemnation. The pardon is not a relief. It is a
perpetual torture. The pardon is not correctional. It is inhuman. And all these
are incompatible with the fundamental concept of pardon."
We cannot accept counsel's view. His criticism of the trial court's
interpretation as being "nothing more than a resort to pedantic technicality" is
unwarranted, ill-measured, and unseemly. His concept of a conditional pardon
is manifestly wrong. He considers it unreasonable and unjust for a prisoner,
whose remaining term of imprisonment is remitted, to be subjected to the
condition that he shall not again violate the law even after the expiration of the
time during which he would have been confined were it not for the pardon. We
think such condition is perfectly reasonable. Christ Himself in His divine mercy
imposed it when He pardoned a sinner and said: "Go and sin no more." We
fail to see any injustice in it. In the first place, if the injunction against future
violation of law were to be limited to the time of the sentence against the
prisoner, society would gain nothing by the remission of that sentence; it could
protect itself better against his possible recidivism or relapse into criminality
during that period of time by not remitting his sentence. In the second place, a
conditional pardon is ordinarily granted on the basis of the prisoner's good
behavior in the penitentiary and on the assumption that he has been
sufficiently reformed and that if released he would become law-abiding; and to
fortify such assumption it is driven home to him that a relapse on his part
would subject him to two punishments as indicated by counsel. Therefore, in
 his case the sword of Damocles is but a sword of Justice, pointing to him the
road that leads away from the penal institution towards the goal of happiness
and freedom. It would seem to be an aberration to regard such constant
admonition to be good as "an eternal condemnation."
In his second assignment of error appellant attempts to bolster up his
interpretation of the condition of his pardon by invoking his own testimony to
the effect that one Clyde B. Ely, who read to him the pardon in Corregidor,
explained to him that during the period of his conviction he should not commit
any violation of the law or any crime punishable for more than one year; and
that because of these explanations he accepted the pardon. Appellant even
went to the extent of swearing that "had Mr. Ely explained to me that the
conditions imposed in the pardon would continue throughout my life, I would
not have accepted the pardon and would have preferred to serve the rest of
my sentence in prison." In other words, appellant would have the court believe
that he would have preferred to stay for nearly five more long years in the
penitentiary rather than be perpetually enjoined from committing a crime. That
is abnormal, if not preposterous. And yet counsel for the appellant has the
temerity of urging us to believe and accept such testimony in lieu of the terms
of the pardon itself, and he even comments thereon in the following language:
"Rather than carry forever a burden of not committing a crime punishable by
one year or more because he is a social being, the accused-appellant testified
that he would have served the full sentence instead." That is plainly another
aberration. We are astounded by the incredible fact that a lawyer could in all
solemnity assert before this Court that it is a burden not to commit a crime.
The only error we find in the sentence of the trial court is the application
to the accused of the Indeterminate Sentence Law, thru oversight, no doubt,
of section 2 of said law, which says that it shall not apply to those who having
been granted conditional pardon shall have violated the terms thereof. The
penalty provided by article 159 of the Revised Penal Code for the offense in
question is prision correccional in its minimum period, the medium degree of
which is one year, one month, and eleven days to one year, eight months,
and twenty days.
Wherefore, the judgment appealed from is hereby modified by
sentencing the appellant to suffer one year, one month, and eleven days of
prision correccional and to pay the costs.
Yulo, C.J., Paras, and Bocobo, JJ., concur.
Moran, J., concurs in the result.
||| (People v. Corral, G.R. No. 48938, [September 27, 1943], 74 PHIL 357-362)
 Republic of the Philippines
SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 118816 July 10, 1998

SANTIAGO ARGONCILLO, RICHARDO BALBONA and POLICARPIO UMITEN, petitioners,

vs.

COURT OF APPEALS and THE PEOPLE OF THE PHILIPPINES, respondents.

KAPUNAN, J.:

This is a petition to review the decision 1 of the Court of Appeals which affirmed in toto the
decision of the Regional Trial Court of Roxas City, Branch 15, 2 finding petitioners herein
guilty of "illegal fishing with the use of an explosive," the dispositive portion of which reads:

WHEREFORE, the Court finds the accused, Policarpio Umiten, Santiago

Argoncillo and Richard Balbona, guilty beyond reasonable doubt for the crime
of illegal fishing with the use of an explosive punishable under Section 33 in
relation to Section 38 of Presidential Decree No. 704 dated May 16, 1975 as
amended by Presidential Decree No. 1058 dated December 1, 1976 and each
shall suffer a straight penalty of twenty (20) years imprisonment.

However, accused, Johnson Sucgang, Elvis Villar and Efren Alvaro, are
acquitted for failure of the prosecution to prove their guilt beyond reasonable
doubt.

The fish sample is forfeited in favor of the government.

Considering the penalty imposed upon the accused, Policarpio Umiten,

Santiago Argoncillo and Richard Balbona, the bail bond for their provisional
liberty is increased to Twenty Thousand (P20,000.00) Pesos each effective
immediately upon promulgation. They shall not be released from detention
until they put up an appropriate bail bond for their provisional liberty.

The property bond of accused, Johnson Sucgang, Elvis Villar and Efren
Alvaro, are deemed cancelled.

Costs against the convicted accused.

SO ORDERED. 3
On August 1, 1990, an Information was filed by the Provincial Fiscal of Capiz charging
Johnson Sucgang, Policarpio Umiten, Elvis Villar, Santiago Argoncillo, Richardo Balbona and
Efren Alvaro with illegal fishing (with the use of dynamite), as follows:

That at or about 6:30 o'clock [sic] in the evening of May 7, 1990, in the sea
water of Barangay Basiao, Ivisan, Capiz, Philippines, and within the jurisdiction
of this Honorable Court, the above-named accused, conspiring, confederating
and helping one another, wilfully, unlawfully and feloniously catch, take, gather
and have in their possession and control different species of fish with the use
of explosives. 4

Upon arraignment on September 11, 1990, the accused, with the assistance of counsel,
pleaded "not guilty" to the offense charged. Trial ensued thereafter.

The lower court synthesized the evidence presented by the prosecution as follows: 5

Due to reports of rampant illegal fishing at Barangay Basiao, Ivisan, Capiz, personnel from
the Department of Agriculture and Natural Resources specifically from the Bureau of
Fisheries as well as the Barangay Captain of said place assisted by the local policemen
created a team to conduct surveillance within the Ivisan Bay. Thus, around 5:30 in the
afternoon of May 7, 1990, a team riding in two (2) pumpboats from the Barangay Basiao wharf
proceeded along the waters of Ivisan Bay. Riding in one pumpboat were Persinefles U. Oabe,
the Barangay Captain of said place; Rolando Amoroso, an employee of the Bureau of
Fisheries; Pat. Rafael Tupaz, a member of the local Integrated National Police and Remegio
Unasin, a barangay councilman who acted as the pilot. In the other pumpboat were Joey de la
Cruz, a co-employee of Rolando Amoroso; Pat. Reggie Uadan and Enido Baldesimo. Now and
then, the team had to stop and listen for possible occurrences of illegal fishing within their
vicinity. Around 6:30 of the same evening while standing by with their engines off, in a place
facing Barangay Culasi, they heard an explosion. Sensing it was caused by dynamite, they
proceeded to the area around five hundred meters (500 m.) away from them.

After ten minutes of navigation, the team arrived at the scene in question which was near an
islet. They surrounded the area. At a distance of around ten meters, Joey de la Cruz, an
employee of the Bureau of Fisheries and Aquatic Resources, saw three persons diving into
the water. Thereafter, they would surface and throw their catch of fish to the unmotorized
banca around four meters long nearby. In the seashore of said islet, around three to four
meters away from these three persons floating in the water, were three other persons
standing in the rocky portions around three meters apart. These six persons tried to escape
but Rolando Amoroso, the co-employee of Joey de la Cruz, advised them not to do so and
introduced themselves as law enforcers. The team found out that the fishes they caught were
deep sea fish of four kinds locally known as "vulgan," "bulawis," "pacol," and "bag-angan."
Joey de la Cruz gathered seven fish samples from their banca while Rolando Amoroso went
down from the pumpboat and proceeded to the islet. However, upon inspection, he failed to
find any explosive (dynamite) either on the seashore or on the banca. No paraphernalia used
in dynamite fishing were found. Both Joey de la Cruz and Rolando Amoroso recognized the
six persons as the herein accused by their faces.

Persinefles U. Oabe, barangay captain of Barangay Basiao, who was with the team riding in a
pumpboat with Rolando Amoroso identified the three persons retrieving fish from the water
as Policarpio Umiten, Santiago Argoncillo and Richard Balbona while the other three persons
standing on the rocky portions of the islet as Johnson Sucgang, Elvis Umiten and Efren
Alvaro.
The team apprehended the six accused and brought them to the fish cage of the barangay
captain located within the same barangay. While on their way, Joey de la Cruz externally
examined the fish samples.

Upon their arrival at the fish cage, another external examination was conducted by Joey de la
Cruz and Rolando Amoroso. In both external examinations, the two found out that the fishes
were caught with the use of explosives because blood was oozing from their operculums and
their eyes were protruding.

An on-the-spot investigation was conducted but the accused denied any culpability. They
were then released on the strength of their promise to report to the local police the following
day.

The fish samples were then placed in a plastic bag filled with ice at the house of Barangay
Captain Persinefles U. Oabe that evening. In the morning, Joey de la Cruz and Rolando
Amoroso brought the fish samples to their office in Roxas City where they conducted an
internal examination. The examination revealed that the fish samples were caught with the
use of explosives because their air bladders were raptured and deeply stained with blood; the
vertebral columns were broken but with bloodstains; their ribs were broken; and there were
blood clots in their abdomens. Joey de la Cruz and Rolando Amoroso rendered a written
report of their internal examination to the Provincial Agricultural Officer.

The testimonies of Joey de la Cruz, Rolando Amoroso, and Persinefles U. Oabe above were
corroborated by Pat. Rafael Tupaz, one of the police escorts of the team.

Sgt. Sergio Ordales, a member of the local police of the municipality of Ivisan testified that
while on duty in the morning of May 8, 1990, herein six accused arrived at their station. He
asked why they were there and they answered that they were told to report to the police
station. He learned from them that they were arrested for illegal fishing with the use of
explosives.

On the other hand, the lower court portrayed the evidence presented by the version of the
defense, thus:

All the accused denied the imputation of the prosecution.

Policarpio Umiten, Santiago Argoncillo, Richard O. Balbona were uniform in alleging that
around 4:00 in the afternoon of May 7, 1990, they dropped a fishnet about two hundred (200)
"armslength" and one (1) meter in width at the scene where they were apprehended. This
method they locally call "patuloy" requires that the fishnet be retrieved every hour to collect
its catch. The trio went back to the place near the islet in question around 6:30 in the evening
for the purpose of collecting their catch from the fishnet. They had not been able to collect all
their catch from the net when the team of law enforcers, prosecution witnesses herein,
arrived. They were asked whether they heard an explosion. After they denied having heard
any, Barangay Captain Persinefles U. Oabe, told the accused to go with them. The team got
seven pieces of fish samples. The accused left around one and one-half kilos of fish they had
gathered at the time the team of law enforcers arrived. They were then brought to the fish
cage owned by Persinefles U. Oabe at Barangay Basiao.

Above three accused would like the Court to believe that the seven pieces of fish samples
taken by the team of fishing law enforcers were the catch of their fishnet they locally called
"patuloy."
On the other hand, Elvis Villar testified that he and Efren Alvaro were together in going to the
islet in question, riding in an unmotorized banca to gather shells locally called "suso" and
"butlogan" for viand. Both started gathering shells under the stones in the islet around 5:30
in the afternoon. While they were preparing to go home at around 6:30 in the evening, the
team of law enforcers riding in motorized pumpboats arrived. The barangay captain and the
personnel from the Bureau of Fisheries and Aquatic Resources asked them whether they
heard an explosion. After they denied having heard any, they were told by the barangay
captain to board their pumpboats. They obliged, leaving the shells they had gathered. They
were then brought to the fish cage of the barangay captain.

Although accused Johnson Sucgang admitted his presence in the islet in question, he
offered a different explanation. He testified that he went to said place to look for "pulutan"
requested by his customer, Wilfredo Arcangeles. Being an operator and manager of Virgen
Beach Resort located at Sitio Manangkalan, he obliged. Thus, between 5:00 to 5:30 in the
afternoon of May 7, 1990, he left his resort riding in a banca. He paddled his way towards the
islet where he saw two persons at the bank while the other three were on the water. He went
ashore. Later, the barangay captain and his companions riding in two pumpboats arrived.
Like his co-accused, he was asked if he heard an explosion. After he denied hearing any, the
barangay captain told him to go with them. They were all brought to the fish cage of the
barangay captain for questioning.

Wilfredo Arcangeles corroborated the claim of Johnson Sucgang. He confirmed that he

requested the latter to look for "pulutan" since he had visitors from Bacolod City prompting
Johnson Sucgang to look for some. He saw the accused leave in a banca and affirmed that he
had no dynamite with him. 6

On September 30, 1991, the trial court rendered its decision which, as stated at the beginning,
was affirmed by the Court of Appeals.

Hence, this petition.

Petitioners point out that the fact that neither explosives nor related paraphernalia were
found in their possession is an indication of their innocence.

We do not agree. First, it is quite probable that petitioners dumped these materials into the
sea while the raiding party was approaching. Moreover, Section 33, Presidential Decree No.
704, as amended by Presidential Decree No. 1058, provides:

Sec. 33. Illegal fishing; . . . — It shall be unlawful for any person to catch, take
or gather, or cause to be caught, taken or gathered fish or fishery/aquatic
products in Philippine waters with the use of explosives, obnoxious or
poisonous substance, or by the use of electricity as defined in paragraphs
(l), 7 (m) 8 and (d), 9 respectively, of Sec. 3 hereof . . .

xxx xxx xxx

The discovery of dynamite, other explosives and chemical compounds

containing combustible elements, or obnoxious or poisonous substance, or
equipment or device for electric fishing in any fishing boat or in the
possession of a fisherman shall constitute a presumption that the same were
used for fishing in violation of this Decree, the discovery in any fishing boat of
fish caught or killed by the use of explosives, obnoxious or poisonous
 substance or by electricity shall constitute a presumption that the owner,
operator or fisherman were fishing with the use of explosives, obnoxious or
poisonous substance or electricity.

In Hizon vs. Court of Appeals, 10 this Court held that the law, as contained in the last
paragraph of Section 33, creates a presumption that illegal fishing has been committed when
fish caught or killed with the use of explosives, obnoxious or poisonous substances or by
electricity are found in a fishing boat. In this case, it cannot be denied that the fishes found in
petitioners' banca were caught or killed by the use of explosives.

The Report 11 of Bureau of Fisheries employees Joey de la Cruz and Rolando Amoroso states:

Republic of the Philippines

Department of Agriculture

Roxas City

1990-05-08

The Provincial Agricultural Officer

Department of Agriculture

Roxas City

Sir:

I have the honor to submit to this office the result of the scientific fish
examination conducted on the fish samples taken from the possession of Mr.
Johnson Umiten Sucgang, 38 years old, married and resident of Barangay
Basiao, Ivisan, Capiz and company on May 7, 1990, 6:30 PM by combined
elements of the Department of Agriculture, PC/INP Unit of Ivisan, Capiz and
Barangay officials of Basiao, Ivisan, Capiz conducting sea borne patrol on
illegal fishing.

Source of fish samples : Sea water of Brgy., Basiao, Ivisan,

Capiz

Fish samples taken from : Johnson U. Sucgang, 38 years old,

married, of Brgy., Basiao, Ivisan,

Capiz, et. al.

Date fish samples taken : May 7, 1990 at 6:30 PM

Date fish samples examined : May 7, 1990 at 7:00 PM

 Name offish samples taken Number Weight Value

Local Name

Bulawis 2 pcs. 300 gms P 8.00

Bulgan 2 pcs. 200 gms 10.00

Pakol 1 pc. 100 gms 2.00

Bag-angan 1 pc. 150 gms 3.00

Bukod 1 pc. 150 gms 3.00

Characteristics noted on the fish examined:

1. External Manifestation

a. Blood, oozing on the operculum.

2. Internal Manifestation

a. Air bladder raptured deeply stained with blood;

b. Vertebral column broken with blood stain.

Conclusion:

The fish samples manifested signs that said fish were caught or killed by the
use of explosives.

Examined by:

(Sgd.)

JOEY I. DE LA CRUZ

(Sgd.)

ROLANDO E. AMOROSO

Fish Examiners

Joey de la Cruz affirmed the above findings in his testimony before the trial court. 12 Said
testimony was corroborated by Rolando Amoroso, a co-employee of De la Cruz in the Bureau
of Fisheries. The latter further stated that the fish were killed specifically by dynamite:

ATTY. LUMAWAG:
 Q Can you identify whether it was through dynamite or any other
means of explosive the fish was caught?

A Yes, sir. Because you know when we saw, when we conducted

the external manifestation of the fish, not only blood oozing
from the ears but also from the eyes that were protruding.

Q Is it not possible that it be caused also through fishing by

means of electricity?

A No.

Q Other kinds of explosives?

A Yes, explosives.

Q For example, what other aside from dynamite?

A What explosives aside from dynamite, no other. 13

The trial court correctly gave credence to these testimonies, thus:

Above three (3) accused would like the Court to believe that the seven (7)
pieces of fish samples taken by the team of fishing law enforcers were the
catch of their fish net they locally called [sic] "patuloy."

xxx xxx xxx

With the external and internal examination by Joey de la Cruz and Rolando
Amoroso showing that these fishes were caught with the use of explosive,
bare denial of above three (3) accused that they caught them by means of a
fishing net they locally call "patoloy" is insufficient to disprove such finding. It
is simply a superiority of weight of object evidence over testimonies of the
accused.

Joey de la Cruz is an agricultural technologist of their office and a graduate of

Bachelor of Science in Fishery. Joey de la Cruz and Rolando Amoroso had
undergone training course in fishery laws and implementing regulations as
well as actual demonstrations in sea to practice what they had learned in
theory. [As] . . . technical personnel of the Bureau of Fishery and Aquatic
Resources, their finding after an internal and external examination of fish
samples to prove they were caught with the use of explosives should be
presented to show that these prosecution witnesses fabricated their story.
There is no ulterior motive which implied them to testify as they did.
Furthermore, no evidence was introduced by the defense to impeach their
credibility nor evidence to discredit their persons. Credibility of the
testimonies having remained unimpeached, it shall be given great weight in the
determination of the guilt of the accused. Besides, being public officers to
enforce fishing laws, in the absence of ill-motive on their part, to impute to the
accused a serious offense of illegal fishing with the use of explosive, the
 presumption is that there was regular performance of public duty on their
part. 14

The presumption that the crime of illegal fishing was committed has, therefore, been clearly
established. Such presumption, however, is merely prima facie, and may be rebutted by the
accused. 15

Petitioners attempt to overcome said presumption by disputing the findings of prosecution

witnesses Joey de la Cruz and Rolando Amoroso. They claim that since not all their catch
were examined, there can be no conclusive proof that the fish were killed with the use of
explosives. 16

They also question the credibility of these witnesses, thus:

. . . . If it is true that prosecution witness Joey dela Cruz, allegedly a technical

personnel [sic] of the Bureau of Fisheries and competent to determine if a fish
is killed by dynamite blast, found the 7 fishes to have been killed by a dynamite
blast, it was unnatural for the team not to arrest the petitioners on the spot. . .
. 17

Petitioners' arguments have no merit.

It is ridiculous to have expected that all the fish found in the accused's fishing boat would be
subjected to an examination. It is sufficient that, as in the case at bar, a random sample of the
accused's catch was examined and found to have been killed with the use of explosives. A
patent impracticality would result if the law required otherwise.

The fact that the patrol team did not immediately deliver the accused to the municipal jail
does not diminish the credibility of the above witnesses. Persinefles U. Oabe, the barangay
captain of Basiao, gave a plausible explanation for the accused's release:

A We released those six persons because if we bring them to the

municipality of Ivisan we have no available transportation
because they were only riding in a single motor vehicle. 18

The want of available transportation is not surprising. The dearth in law enforcement
facilities, especially in the provinces, is not lost on this Court and is a matter of judicial
notice.

In fine, we find no reason to disturb the assessment of the trial court regarding the credibility
of prosecution witnesses Joey de la Cruz and Rolando Amoroso. Its findings are accorded
great respect by appellate tribunals since trial courts have the advantage of examining the
witnesses' testimonies and observing their demeanor first hand. 19

Petitioners also argue that they could not have been caught fishing with the use of dynamite
in shallow waters because the fishes used as evidence were described by the prosecution
witnesses as "deep sea fishes." According to petitioners:

The seven (7) fishes that the prosecution used as evidence were described by
prosecution witnesses as "deep sea fishes". But it has been shown in the
testimony of petitioner Santiago Argoncillo that he and the other petitioners
 were fishing in shallow waters about 1 1/2 meters deep (TSN, March 13, 1991,
p. 7) and using fishnet 200 armslength long and 1 meter wide (TSN, March 13,
1991, p. 4). This testimony was not rebutted by the prosecution. In fact, the 3
accused who were acquitted by the trial court were found by the prosecution
witnesses standing on the seashore near where the petitioners were fishing
(TSN, January 23, 1991, pp. 5 to 6). That petitioners would engage in dynamite
fishing in shallow waters and near the seashore would be unnatural. The
allegation that the petitioners were fishing with the use of explosive is
therefore not credible. 20

We are not persuaded.

The fishes caught by petitioners were not actually "deep sea fishes" in the sense that they
came from the deep portions of the sea as distinguished from shallow waters or waters near
or along the shores. The fishes caught were locally known as "vulgan," "bulawis," "pacol,"
and "bag-angan." They are generally described as "isda sa bato" or "bottom feeders." The
following excerpt from the testimony of fish examiner Joey de la Cruz shows that the term
"deep sea fishes" arose from the trial court's erroneous translation of "isda sa bato" or
"bottom feeders" which were the terms actually employed by said witness to describe the
subject fishes:

ATTY. LUMAWAG:

Q What were the species of the fishes that you recovered from
that banca?

A Bottom feeders.

COURT:

"Isda sa bato," in English?

A Bottom feeders.

COURT:

Deep sea fishes. 21

Petitioners next contend that if it is true that they were engaged in illegal fishing, it would be
"unnatural" for them to use a boat which would make it difficult for them to escape from the
law enforcers riding motorized boats. 22

Petitioners' contention is too ludicrous to warrant serious consideration. The law punishing
illegal fishing does not require the use of motorized banca or boat for the crime to be
committed. Concededly, a motorized banca can better serve those engaged in illegal fishing
for purposes of eluding law enforcers. However, not everyone can financially afford to fit a
motor in his banca. Indeed, petitioner Argoncillo admitted that the banca that they were using
was leased from a certain Dikoy Odrunia. 23
Petitioners likewise aver that they did not flee when the law enforcers arrived, and even
voluntarily reported to the Ivisan Police Station the following morning. They submit that their
alleged non-flight should strengthen their claim of innocence. 24

We disagree. There is no established doctrine to the effect that, in every instance, non-flight
is an indication of innocence. 25 Moreover, even if they wanted to, petitioners could not have
possibly eluded the law enforcers who were in two pump boats. Attempts to flee would also
have been useless since petitioners were already identified by the barrio captain.

Lastly, the fact that the accused were asked by the patrol team whether or not they heard an
explosion is not in any way reflective of petitioners' innocence. We deem such inquiry as
nothing more than a part of the investigative process. It is quite common, and in most cases,
necessary, for law enforcers to ask questions to help them ascertain whether or not there
exists probable cause to arrest persons suspected of committing a crime.

Having failed to discharge themselves of the burden of disproving that they have committed
illegal fishing, the Court is left with no alternative but to affirm petitioners' conviction.

The penalty imposed by law 26 for illegal fishing if explosive is actually used is imprisonment
ranging from twenty (20) years to life imprisonment. The Indeterminate Sentence Law
provides that if, as in this case, the offense is punished by a law other than the Revised Penal
Code, the court shall sentence the accused to an indeterminate sentence, the maximum term
of which shall not exceed the maximum fixed by said law and the minimum shall not be less
than the minimum term prescribed by the same. 27 The trial court therefore erred when it
sentenced petitioners to "suffer a straight penalty of twenty (20) years
imprisonment." 28 In Spouses Jose and Trinidad Bacar vs. Judge Salvador P. de Guzman,
Jr., 29 we held that it was erroneous to impose a straight penalty of six (6) years imprisonment
on the accused for homicide. We explained:

. . . It is basic law that . . . the application of the Indeterminate Sentence Law is

mandatory where imprisonment exceeds one (1) year, except only in the
following cases:

a. Offenses punished by death or life

imprisonment.

b. Those convicted of treason (Art. 114),

conspiracy or proposal to commit treason (Art.
115).

c. Those convicted of misprision of treason (Art.

116), rebellion (Art. 134), sedition (Art. 139, or
espionage (Art. 117).

d. Those convicted of piracy (Art. 122).

e. Habitual delinquents (Art. 62, par. 5).

Recidivists are entitled to an indeterminate sentence. (People v.

Jaramilla, L-28547, Feb. 22, 1974). Offender is not disqualified to
avail of the benefits of the law even if the crime is committed
 while he is on parole. (People v. Calreon, CA 78 O.G. 6701, Nov.
19, 1982).

f. Those who escaped from confinement or those

who evaded sentence.

g. Those granted conditional pardon and who

violated the terms of the same (Art. 159). (People
v. Corral, 74 Phil. 359).

h. Those whose maximum period of imprisonment

does not exceed one year.

Where the penalty actually imposed does not exceed one year,
the accused cannot avail himself of the benefits of the law, the
application of which is based upon the penalty actually imposed
in accordance with law and not upon that which may be imposed
in the discretion of the Court. (People v. Hidalgo, [CA] G.R. No.
00452-CR, Jan. 22, 1962).

i. Those who are already serving final judgment

upon the approval of the Indeterminate Sentence
Law.

The need for specifying the minimum and maximum periods of the
indeterminate sentence is to prevent the unnecessary and excessive
deprivation of liberty and to enhance the economic usefulness of the accused,
since he may be exempted from serving the entire sentence, depending upon
his behavior and his physical, mental, and moral record. The requirement of
imposing an indeterminate sentence in all criminal offenses whether
punishable by the or by special laws, with definite minimum and maximum
terms, as the Court deems proper within the legal range of the penalty
specified by the law must, therefore, be deemed mandatory. 30

Accordingly, the proper penalty to be imposed upon the accused should be

an indeterminate penalty which is hereby set at twenty (20) years as minimum to
twenty-five (25) years as maximum.

WHEREFORE, the petition is hereby DISMISSED, and the decision of the Court of Appeals is
AFFIRMED with the modification that petitioners are hereby sentenced to suffer an
indeterminate penalty of imprisonment ranging from twenty (20) years as minimum to twenty-
five (25) years as maximum.

SO ORDERED.

EN BANC

[G.R. No. 108747. April 6, 1995.]

 PABLO C. FRANCISCO, petitioner, vs. COURT OF APPEALS
AND THE HONORABLE MAXIMO C. CONTRERAS, respondents.

Carlo L. Cruz for petitioner.

The Solicitor General for respondents.

SYLLABUS

1. CRIMINAL LAW; PROBATION; A MERE PRIVILEGE AND GRANTING

THEREOF RESTS SOLELY UPON THE DISCRETION OF THE COURT. —
Probation is a mere privilege, not a right. Its benefits cannot extend to those not
expressly included. Probation is not a right of an accused, but rather an act of
grace and clemency or immunity conferred by the state which may be granted by
the court to a seemingly deserving defendant who thereby escapes the extreme
rigors of the penalty imposed by law for the offense of which he stands convicted.
It is a special prerogative granted by law to a person or group of persons not
enjoyed by others or by all. Accordingly, the grant of probation rests solely upon
the discretion of the court which is to be exercised primarily for the benefit of
organized society, and only incidentally for the benefit of the accused.
The probation law should not therefore be permitted to divest the state or its
government of any of the latter's prerogatives, rights or remedies, unless the
intention of the legislature to this end is clearly expressed, and no person should
benefit from the terms of the law who is not clearly within them.
2. ID.; ID.; NOT AVAILABLE WHERE DEFENDANT HAS PERFECTED AN
APPEAL; APPEAL TO REDUCE PENALTY, IMMATERIAL. — Neither Sec. 4 of
the Probation Law, as amended, which clearly mandates that "no application for
probation shall be entertained or granted if the defendant has perfected the appeal
from the judgment of conviction," nor Llamado v. Court of Appeals which interprets
the quoted provision, offers any ambiguity or qualification. As such, the application
of the law should not be subjected to any to suit the case of petitioner. While the
proposition that an appeal should not bar the accused from applying for probation
if the appeal is solely to reduce the penalty to within the probationable limit may be
equitable, we are not yet prepared to accept this interpretation under existing law
and jurisprudence.
3. ID.; ID.; ACCUSED SENTENCED TO MORE THAN SIX (6) YEARS OF
IMPRISONMENT, DISQUALIFIED; REASON. — Fixing the cut-off point at a
maximum term of six (6) years imprisonment for probation is based on the
assumption that those sentenced to higher penalties pose too great a risk to
society, not just because of their demonstrated capability for serious wrongdoing
but because of the gravity and serious consequences of the offense they might
further commit. The Probation Law, as amended, disqualifies only those who have
been convicted of grave felonies as defined in Art. 9 in relation to Art. 25 of The
Revised Penal Code, and not necessarily those who have been convicted of
multiple offenses in a single proceeding who are deemed to be less perverse.
Hence, the basis of the disqualification is principally the gravity of the offense
committed and the concomitant degree of penalty imposed. Those sentenced to a
maximum term not exceeding six (6) years are not generally considered callous,
hard core criminals, and thus may avail of probation.
4. ID.; ID.; FILING OF APPLICATION AFTER RECEIPT OF DECISION
AND AFTER WARRANT OF ARREST WAS ISSUED; CASE AT BENCH. — The
application for probation was filed way beyond the period allowed by law. This is
vital and crucial. From the records it is clear that the application for probation was
filed "only after a warrant for the arrest of petitioner had been issued . . . (and)
almost two months after (his) receipt of the Decision" of the RTC. This is a
significant fact which militates against the instant petition. Our minds cannot simply
rest easy on the proposition that an application for probation may yet be granted
even if it was filed only after judgment has become final, the conviction already set
for execution and a warrant of arrest issued for service of sentence. The argument
that petitioner had to await the remand of the case to the MeTC, which necessarily
must be after the decision of the RTC had become final, for him to file the
application for probation with the trial court, is to stretch the law beyond
comprehension. The law, simply, does not allow probation after an appeal has
been perfected. Accordingly, considering that prevailing jurisprudence treats
appeal and probation as mutually exclusive remedies, and petitioner appealed
from his conviction by the MeTC although the imposed penalties were already
probationable, and in his appeal, he asserted only his innocence and did not even
raise the issue of the propriety of the penalties imposed on him, and finally, he filed
an application for probation outside the period for perfecting an appeal granting he
was otherwise eligible for probation, the instant petition for review should be as it
is hereby DENIED.
5. ID.; PENALTIES; MULTIPLE PRISON TERMS IN ONE DECISION
SHOULD NOT BE ADDED; SEPARATE PENALTIES IMPOSED, BASIS OF
PROBATION; CASE AT BENCH. — At the outset, the penalties imposed by the
MeTC were already probationable. Hence, there was no need to appeal if only to
reduce the penalties to within the probationable period. Multiple prison terms
imposed against an accused found guilty of several offenses in one decision are
not, and should not be, added up. And, the sum of the multiple prison terms
imposed against an applicant should not be determinative of his eligibility for, nay
his disqualification from, probation. The multiple prison terms are distinct from each
other, and if none of the terms exceeds the limit set out in the Probation Law, i.e.,
not more than six (6) years, then he is entitled to probation, unless he is otherwise
specifically disqualified. The number of offenses is immaterial as long as all the
penalties imposed, taken separately, are within the probationable period. For, Sec.
9, par. (a), P.D. 968, as amended, uses the word maximum, not total, when it says
that "[t]he benefits of this Decree shall not be extended to those . . . sentenced to
serve a maximum term of imprisonment of more than six years." Evidently, the law
does not intend to sum up the penalties imposed but to take each penalty
separately and distinctly with the others. Consequently, even if petitioner was
supposed to have served his prison term of one (1) year and one (1) day to one
(1) year and eight (8) months of prision correccional sixteen (16) times as he was
sentenced to serve the prison term for "each crime committed on each date of
each case, as alleged in the information(s)," and in each of the four (4)
informations, he was charged with having defamed the four (4) private
complainants on four (4) different, separate days, he was still eligible for probation,
as each prison term imposed on petitioner was probationable.
6. STATUTORY CONSTRUCTION; WHERE THE LAW DOES NOT
DISTINGUISH, THE COURTS SHOULD NOT DISTINGUISH; PROVISION
ON PROBATION LAW DISQUALIFYING ACCUSED WHO HAS PERFECTED
APPEAL, CLEAR AND UNAMBIGUOUS; CASE AT BENCH. — That an appeal
should not bar the accused from applying for probation if the appeal is taken solely
to reduce the penalty is simply contrary to the clear and express mandate of Sec.
4 of the Probation Law, as amended, which opens with a negative clause, "no
application for probation shall be entertained or granted if the defendant has
perfected the appeal from the judgment of conviction." And where the law does not
distinguish; the courts should not distinguish; where the law does not make
exception the court should not except.
7. REMEDIAL LAW; CRIMINAL PROCEDURE; MOTION TO QUASH;
FAILURE TO MOVE TO QUASH OTHER INFORMATIONS, DEEMED A WAIVER
THEREOF. — Perhaps it should be mentioned that at the outset, petitioner, in
accordance with Sec. 3, par. (e), Rule 117 of the Rules of Court, should have
moved to quash as each of the four (4) Informations filed against him charged four
(4) separate crimes of grave oral defamation, committed on four (4) separate days.
His failure to do so however may now be deemed a waiver under Sec. 8 of the
same Rule and he can be validly convicted, as in the instant case, of as many
crimes charged in the Information.
MENDOZA, J., dissenting opinion:
1. CRIMINAL LAW; PROBATION; MAY BE AVAILED OF WHERE
ACCUSED APPEALED HIS CASE AND SENTENCE REDUCED TO
IMPRISONMENT OF NOT MORE THAN SIX (6) YEARS. — Nothing in PD
1990 to suggest that in limiting the accused to the choice of either appealing from
the decision of the trial court or applying for probation, the purpose is to deny him
the right to probation in cases like the one at bar where he becomes eligible for
probation only because on appeal his sentence is reduced. The purpose of the
amendment, it bears repeating, is simply to prevent speculation or opportunism on
the part of an accused who, although eligible for probation, does not at once apply
for probation, doing so only after failing in his appeal.
2. ID.; ID.; SHOULD NOT BE REGARDED PRIMARILY AS A PRIVILEGE
BUT SHOULD BE APPLIED IN FAVOR OF THE ACCUSED TO HELP HIM
DEVELOP INTO A LAW-ABIDING AND SELF-RESPECTING INDIVIDUAL. — To
regard probation, however, as a mere privilege, to be given to the accused only
where it clearly appears he comes within its letter is to disregard the teaching in
many cases that the Probation Law should be applied in favor of the accused not
because it is a criminal law — it is not — but to achieve its beneficent purpose.
(Santos To v. Paño, 120 SCRA 8, 14 [1983]). The niggardly application of the law
would defeat its purpose to "help the probationer develop into a law-abiding and
self-respecting individual" (Baclayon v. Mutia, 129 SCRA 148, 149 [1984], per
Teehankee, J.) or "afford [him] a chance to reform and rehabilitate himself without
the stigma of a prison record, to save government funds that may otherwise be
spent for his food and maintenance while incarcerated, and to decongest the jails
of the country." (Del Rosario v. Rosero, 126 SCRA 228, 232 (1983), per Makasiar,
J.)
3. ID.; ID.; ACCUSED TO BE QUALIFIED MUST NOT HAVE PERFECTED
AN APPEAL FROM THE JUDGMENT OF CONVICTION; EXCEPTION; CASE AT
BAR. — It is argued that there is a difference because an accused who pleads "not
guilty" in the beginning, later acknowledges his guilt and shows contrition after he
is found guilty. So does an accused who appeals a sentence because under it he
is not qualified for probation, but after the penalty is reduced, instead of appealing
further, accepts the new sentence and applies for probation. This case is thus
distinguishable from Llamado v. Court of Appeals, 174 SCRA 566 (1989), in which
it was held that because the petitioner had appealed his sentence, he could not
subsequently apply for probation. For, unlike petitioner in the case at bar, the
accused in that case could have applied for probation as his original sentence of
one year of prision correccional did not disqualify him for probation. That case fell
squarely within the ambit of the prohibition in Sec. 4 that one who applies for
probation must not "have perfected an appeal from the judgment of conviction."
4. ID.; ID.; PENALTIES IMPOSED ON ACCUSED SHOULD BE TAKEN IN
THEIR TOTALITY IN APPLYING FOR PROBATION. — It is contended that
petitioner did not have to appeal because under the original sentence meted out
to him he was not disqualified for probation. The issue here is whether the multiple
prison terms imposed on petitioner are to be considered singly or in their totality
for the purpose of Sec. 9(a) which disqualifies from probation those "sentenced to
serve a maximum term of imprisonment of more than six years." I submit that they
should be taken in their totality. As the sentence originally imposed on petitioner
was for "one (1) year and one (1) day to one (1) year and eight (8) months of prision
correccional in each crime committed on each date of each case" and as there are
four offenses of grave oral defamation against petitioner in each of the four cases,
the total prison term which he would have to serve was 26 years and 8 months.
This is clearly beyond the probationable maximum allowed by law. It is said,
however, that even if the totality of the prison terms is the test, the modified
sentence imposed by the RTC would not qualify the petitioner for probation
because he has to suffer imprisonment of eight months sixteen times. That is not
so. The RTC only "sentence[d] the said accused in each case to a STRAIGHT
penalty of EIGHT (8) MONTHS imprisonment." This means eight (8) months times
four (4), since there are four cases, or 32 months or 2 years and 8 months. That
the duration of a convict's sentence is determined by considering the totality of
several penalties for different offenses committed is also implicit in the provisions
of the Revised Penal Code on the accumulation of penalties.
5. ID.; ID.; APPLICATION SHALL BE FILED WITH THE TRIAL COURT;
ACCUSED HAS TO AWAIT THE REMAND OF CASE TO THE TRIAL COURT
AFTER SENTENCE IS MODIFIED TO APPLY FOR PROBATION. — It is said that
there is a more fundamental reason for denying probation in this case and that is
that petitioner applied for probation only after his case had been remanded to the
MeTC for the execution of its decision as modified. But that is because Sec. 4
provides that "an application for probation shall be filed with the trial court." In the
circumstances of this case, petitioner had to await the remand of the case to the
MeTC, which necessarily must be after the decision of the RTC had become final.
6. ID.; PENALTIES; TOTALITIES THEREOF TAKEN INTO
CONSIDERATION IN APPLYING FOR PROBATION. — In the case at bar, it can
not be said that in appealing the decision of the MeTC petitioner was principally
motivated by a desire to be acquitted. While acquittal might have been an alluring
prospect for him, what is clear is that he had a reason for appealing because under
the sentence given to him he was disqualified to apply for probation. The MeTC
had originally sentenced him to 1 year and 1 day to 1 year and 8 months of prision
correccional for "each crime committed on each date of each case, as alleged in
the information[s]." This meant, as the majority opinion points out, that petitioner
had to suffer the prison term of 1 year and 1 day to 1 year and 8 months sixteen
times, since he was found guilty of four crimes of grave oral defamation in each of
four cases. The totality of the penalties imposed on petitioner (26 years and 8
months) thus exceeded the limit of six (6) years of imprisonment allowed by 9(a)
and disqualified him for probation. It was only after this penalty was reduced on
appeal to a straight penalty of eight months imprisonment in each case or to a total
term of 2 years and 8 months in the four cases that petitioner became eligible for
probation. Then he did not appeal further although he could have done so.
VITUG, J., separate opinion:
 1. CRIMINAL LAW; PROBATION; ACCUSED NOT ORIGINALLY
QUALIFIED FOR PROBATION SHOULD NOT BE DENIED THEREOF WHERE
HIS APPEAL REDUCED HIS IMPRISONMENT WITHIN THE PRESCRIBED
LIMIT. — An accused, who originally is not qualified for probation because the
penalty imposed on him by a court a quo exceeds six (6) years, should not be
denied that benefit of probation if on appeal the sentence is ultimately reduced to
within the prescribed limit.
2. ID.; ID.; NUMBER OF PENALTIES IMPOSED ON ACCUSED CHARGED
AND SENTENCED TO SERVE MULTIPLE PRISON TERMS, TAKEN
SEPARATELY IN DETERMINING QUALIFICATION FOR PROBATION. — In
determining the eligibility or disqualification of an applicant for probation charged
with, and sentenced to serve multiple prison terms for, several offenses, "the
number of offenses is immaterial as long as all the penalties imposed, taken
separately, are within the probationable period." The use of the
word maximum instead of the word total in Section 9, paragraph (a) of P.D. 968,
as amended, should be enough to reveal that such has been the legislative intent.

D E C I S I O N1

BELLOSILLO, J : p

Probation is a special privilege granted by the state to a penitent

qualified offender. It essentially rejects appeals and encourages an otherwise
eligible convict to immediately admit his liability and save the state of time,
effort and expenses to jettison an appeal. The law expressly requires that an
accused must not have appealed his conviction before he can avail of
probation. This outlaws the element of speculation on the part of the accused
— to wager on the result of his appeal — that when his conviction is finally
affirmed on appeal, the moment of truth well-nigh at hand, and the service of
his sentence inevitable, he now applies for probation as an "escape hatch"
thus rendering nugatory the appellate court's affirmance of his conviction.
Consequently, probation should be availed of at the first opportunity by
convicts who are willing to be reformed and rehabilitated, who manifest
spontaneity, contrition and remorse.
As conceptualized, is petitioner entitled to probation within the purview
of P.D. 968, as amended by P.D. 1257 and P.D. 1990?
Petitioner's woes started when as President and General Manager of
ASPAC Trans. Company he failed to control his outburst and blurted —
 You employees in this office are all tanga, son of a bitches (sic),
bullshit. Puro kayo walang utak . . . . Mga anak ng puta . . . . Magkano ba
kayo . . . God damn you all.
Thus for humiliating his employees he was accused of multiple grave oral
defamation in five (5) separate Informations instituted by five (5) of his
employees, each Information charging him with gravely maligning them on
four different days, i.e., from 9 to 12 April 1980.
On 2 January 1990, after nearly ten (10) years, the Metropolitan Trial
Court of Makati, Br. 61, found petitioner guilty of grave oral defamation in four
(4) of the five (5) cases filed against him, i.e., Crim. Cases Nos. 105206,
105207, 105209 and 105210, sentenced him to a prison term of one (1) year
and one (1) day to one (1) year and eight (8) months of prision
correccional "in each crime committed on each date of each case as alleged
in the information(s)," ordered him to indemnify each of the offended parties,
Victoria Gatchalian, Rowena Ruiz, Linda Marie Ayala Pigar and Marie Solis,
P10,000.00 as exemplary damages, and P5,000.00 for attorney's fees, plus
costs of suit. 2 He was however acquitted in Crim. Case No. 105208 for
persistent failure of the offended party, Edgar Colindres, to appear and testify.
Not satisfied with the Decision of the MeTC, and insisting on his
innocence, petitioner elevated his case to the Regional Trial Court. Cdpr

On 5 August 1991 the Regional Trial Court of Makati, Br. 59, affirmed
his conviction but appreciated in his favor a mitigating circumstance
analogous to passion or obfuscation. Thus —
. . . (he) was angry and shouting when he uttered the defamatory
words complained of . . . he must have been angry and worried 'about
some missing documents . . . as well as the letter of the Department of
Tourism advising ASPAC about its delinquent tax of P1.2 million . . .' the
said defamatory words must have been uttered in the heat of anger which
is a mitigating circumstance analogous to passion or obfuscation. 3
Accordingly, petitioner was sentenced "in each case to a STRAIGHT
penalty of EIGHT (8) MONTHS imprisonment . . ." 4 After he failed to
interpose an appeal therefrom the decision of the RTC became final. The
case was then set for execution of judgment by the MeTC which, as a
consequence, issued a warrant of arrest. But before he could be arrested
petitioner filed an application for probation which the MeTC denied "in the light
of the ruling of the Supreme Court in Llamado v. Court of Appeals, G.R. No.
84850, 29 June 1989, 174 SCRA 566 . . ." 5
Forthwith he went to the Court of Appeals on certiorari which on 2 July
1992 dismissed his petition on the following grounds —
 Initially, the Court notes that the petitioner has failed to comply with
the provisions of Supreme Court Circular No. 28-91 of September 4, 1991.
Violation of the circular is sufficient cause for dismissal of the petition. prcd

Secondly, the petitioner does not allege anywhere in the petition

that he had asked the respondent court to reconsider its above order; in
fact, he had failed to give the court an opportunity to correct itself if it had,
in fact, committed any error on the matter. He is, however, required to
move for reconsideration of the questioned order before filing a petition
for certiorari (Sy It v. Tiangco, 4 SCRA 436). This failure is fatal to his
cause. It is a ground for dismissal of his petition (Santos v. Vda. de
Cerdenola, 5 SCRA 823; Acquiao v. Estenso, 14 SCRA 18; Del Pilar
Transit, Inc. v. Public Service Commission, 31 SCRA 372).
Thirdly, it is obvious that respondent court did not commit any
capricious, arbitrary, despotic or whimsical exercise of power in denying
the petitioner's application for probation . . .
Fourthly, the petition for probation was filed by the petitioner out of
time . . .
Fifthly, the Court notes that Section 4 of PD 968 allows the trial
court to grant probation after conviction, upon an application by the
defendant within the period of appeal, upon terms and conditions and
period appropriate to each case, but expressly rules out probation where
an appeal has been taken . . . 6
The motion for reconsideration was likewise denied.
In the present recourse, petitioner squirms out of each ground and
seeks this Court's compassion in dispensing with the minor technicalities
which may militate against his petition as he now argues before us that he has
not yet lost his right to avail of probation notwithstanding his appeal from the
MeTC to the RTC since "[t]he reason for his appeal was precisely to enable
him to avail himself of the benefits of the Probation Law because the original
Decision of the (Metropolitan) Trial Court was such that he would not then be
entitled to probation." 7 He contends that "he appealed from the judgment of
the trial court precisely for the purpose of reducing the penalties imposed
upon him by the said court to enable him to qualify for probation." 8
The central issue therefore is whether petitioner is still qualified to avail
of probation even after appealing his conviction to the RTC which affirmed the Commented [CAH1]: ISSUE OF THE CASE
MeTC except with regard to the duration of the penalties imposed.
Petitioner is no longer eligible for probation.
First. Probation is a mere privilege, not a right. 9 Its benefits cannot
extend to those not expressly included. Probation is not a right of an accused,
but rather an act of grace and clemency or immunity conferred by the state
which may be granted by the court to a seemingly deserving defendant who
thereby escapes the extreme rigors of the penalty imposed by law for the
offense of which he stands convicted. 10 It is a special prerogative granted by
law to a person or group of persons not enjoyed by others or by all.
Accordingly, the grant of probation rests solely upon the discretion of the court
which is to be exercised primarily for the benefit of organized society, and only
incidentally for the benefit of the accused. 11 The Probation Law should not
therefore be permitted to divest the state or its government of any of the
latter's prerogatives, rights or remedies, unless the intention of the legislature
to this end is clearly expressed, and no person should benefit from the terms
of the law who is not clearly within them. LexLib

Neither Sec. 4 of the Probation Law, as amended, which clearly

mandates that "no application for probation shall be entertained or granted if
the defendant has perfected the appeal from the judgment of conviction,"
nor Llamado v. Court of Appeals 12 which interprets the quoted provision,
offers any ambiguity or qualification. As such, the application of the law should
not be subjected to any to suit the case of petitioner. While the proposition
that an appeal should not bar the accused from applying for probation if the
appeal is solely to reduce the penalty to within the probationable limit may be
equitable, we are not yet prepared to accept this interpretation under existing
law and jurisprudence. Accordingly, we quote Mr. Justice Feliciano speaking
for the Court en banc in Llamado v. Court of Appeals —
. . . we note at the outset that Probation Law is not a penal statute.
We, however, understand petitioner's argument to be really that any
statutory language that appears to favor the accused in a criminal case
should be given a 'liberal interpretation.' Courts . . . have no authority to
invoke 'liberal interpretation' or 'the spirit of the law' where the words of
the statute themselves, and as illuminated by the history of that statute,
leave no room for doubt or interpretation. We do not believe that 'the spirit
of the law' may legitimately be invoked to set at naught words which have
a clear and definite meaning imparted to them by our procedural law. The
'true legislative intent' must obviously be given effect by judges and all
others who are charged with the application and implementation of a
statute. It is absolutely essential to bear in mind, however, that the spirit
of the law and the intent that is to be given effect are derived from the
words actually used by the law-maker, and not from some external,
mystical or metajuridical source independent of and transcending the
words of the legislature.
The Court is not here to be understood as giving a 'strict
interpretation' rather than a 'liberal' one to Section 4 of the Probation Law
of 1976 as amended by P.D. No. 1990. 'Strict' and 'liberal' are adjectives
which too frequently impede a disciplined and principled search for the
meaning which the law-making authority projected when it promulgated
the language which we must apply. That meaning is clearly visible in the
 text of Section 4, as plain and unmistakable as the nose on a man's face.
The Court is simply reading Section 4 as it is in fact written. There is no
need for the involved process of construction that petitioner invites us to
engage in, a process made necessary only because petitioner rejects the
conclusion or meaning which shines through the words of the statute. The
first duty of the judge is to take and apply a statute as he finds it, not as
he would like it to be. Otherwise, as this Court in Yangco v. Court of First
Instance warned, confusion and uncertainty will surely follow, making, we
might add, stability and continuity in the law much more difficult to achieve:
'. . . [w]here language is plain, subtle refinements which tinge
words as to give them the color of a particular judicial theory are
not only unnecessary but decidedly harmful. That which has
caused so much confusion in the law, which has made is so difficult
for the public to understand and know what the law is with respect
to a given matter, is in considerable measure the unwarranted
interference by judicial tribunals with the English language as found
in statutes and contracts, cutting the words here and inserting them
there, making them fit personal ideas of what the legislature ought
to have done or what parties should have agreed upon, giving them
meanings which they do not ordinarily have cutting, trimming,
fitting, changing and coloring until lawyers themselves are unable
to advise their clients as to the meaning of a given statute or
contract until it has been submitted to some court for its
interpretation and construction.'
The point in this warning may be expected to become sharper as
our people's grasp of English is steadily attenuated. 13
Therefore, that an appeal should not bar the accused from applying for
probation if the appeal is taken solely to reduce the penalty is simply contrary
to the clear and express mandate of Sec. 4 of the Probation Law, as
amended, which opens with a negative clause, "no application for probation
shall be entertained or granted if the defendant has perfected the appeal from
the judgment of conviction." In Bersabal v. Salvador, 14 we said —
By its very language, the Rule is mandatory. Under the rule of
statutory construction, negative words and phrases are to be regarded as
mandatory while those in the affirmative are merely directory . . . the use
of the term 'shall' further emphasizes its mandatory character and means
that it is imperative, operating to impose a duty which may be enforced.
And where the law does not distinguish the courts should not
distinguish; where the law does not make exception the court should not
except.
Second. At the outset, the penalties imposed by the MeTC were
already probationable. Hence, there was no need to appeal if only to reduce
the penalties to within the probationable period. Multiple prison terms imposed
against an accused found guilty of several offenses in one decision are not,
and should not be, added up. And, the sum of the multiple prison terms
imposed against an applicant should not be determinative of his eligibility for,
nay his disqualification from, probation. The multiple prison terms are distinct
from each other, and if none of the terms exceeds the limit set out in
the Probation Law, i.e., not more than six (6) years, then he is entitled to
probation, unless he is otherwise specifically disqualified. The number of
offenses is immaterial as long as all the penalties imposed, taken separately,
are within the probationable period. For, Sec. 9, par. (a), P.D. 968, as
amended, uses the word maximum, not total, when it says that "[t]he benefits
of this Decree shall not be extended to those . . . sentenced to serve
a maximum term of imprisonment of more than six years." Evidently, the law
does not intend to sum up the penalties imposed but to take each penalty,
separately and distinctly with the others. Consequently, even if petitioner was
supposed to have served his prison term of one (1) year and one (1) day to
one (1) year and eight (8) months of prision correccional sixteen (16) times as
he was sentenced to serve the prison term for "each crime committed on each
date of each case, as alleged in the information(s)," and in each of the four (4)
informations, he was charged with having defamed the four (4) private
complainants on four (4) different, separate days, he was still eligible for
probation, as each prison term imposed on petitioner was probationable. LLphil

Fixing the cut-off point at a maximum term of six (6) years imprisonment
for probation is based on the assumption that those sentenced to higher
penalties pose too great a risk to society, not just because of their
demonstrated capability for serious wrongdoing but because of the gravity
and serious consequences of the offense they might further
commit. 15 The Probation Law, as amended, disqualifies only those who have
been convicted of grave felonies as defined in Art. 9 in relation to Art. 25 of
The Revised Penal Code, 16 and not necessarily those who have been
convicted of multiple offenses in a single proceeding who are deemed to be
less perverse. Hence, the basis of the disqualification is principally the gravity
of the offense committed and the concomitant degree of penalty imposed.
Those sentenced to a maximum term not exceeding six (6) years are not
generally considered callous, hard core criminals, and thus may avail of
probation.
To demonstrate the point, let us take for instance one who is convicted
in a single decision of, say, thirteen (13) counts of grave oral defamation (for
having defamed thirteen [13] individuals in one outburst) and sentenced to
a total prison term of thirteen (13) years, and another who has been found
guilty of mutilation and sentenced to six (6) years and one (1) day of prision
mayor minimum as minimum to twelve (12) years and one (1) day of reclusion
temporal minimum as maximum. Obviously, the latter offender is more
perverse and is disqualified from availing of probation.
Petitioner thus proceeds on an erroneous assumption that under the
MeTC Decision he could not have availed of the benefits of probation. Since
he could have, although he did not, his appeal now precludes him from
applying for probation.
And, even if we go along with the premise of petitioner, however
erroneous it may be, that the penalties imposed against him should be
summed up, still he would not have qualified under the Decision rendered by
the RTC since if the "STRAIGHT penalty of EIGHT (8) MONTHS
imprisonment" imposed by the RTC is multiplied sixteen (16) times, the total
imposable penalty, would be ten (10) years and eight (8) months, which is still
way beyond the limit of not more than six (6) years provided for in
the Probation Law, as amended. To illustrate: 8 months multiplied by 16
cases = 128 months; 128 months divided by 12 months (in a year) = 10 years
and 8 months, hence, following his argument, petitioner cannot still be eligible
for probation as the total of his penalties exceeds six (6) years.
The assertion that the Decision of the RTC should be multiplied only
four (4) times since there are only four (4) Informations thereby allowing
petitioner to qualify for probation, instead of sixteen (16) times, is quite difficult
to understand. The penalties imposed by the MeTC cannot be any clearer —
"one (1) year and one (1) day to one (1) year and eight (8) months of prision
correccional, in each crime committed on each date of each case, as alleged
in the information(s)." Hence, petitioner should suffer the imposed penalties
sixteen (16) times. On the other hand, the RTC affirmed the judgment of
conviction and merely reduced the duration of each penalty imposed by the
MeTC "in each case to a STRAIGHT penalty of EIGHT (8) MONTHS
imprisonment" on account of a mitigating circumstance for each case, count
or incident of grave oral defamation. There is no valid reason therefore why
the penalties imposed by the RTC should be multiplied only four (4) times,
and not sixteen (16) times, considering that the RTC merely affirmed the
MeTC as regards the culpability of petitioner in each of the sixteen (16) cases
and reducing only the duration of the penalties imposed therein. Thus —
Premises considered, the judgment of conviction rendered by the
trial court is AFFIRMED with modification, as follows:
WHEREFORE, the Court hereby finds the accused Pablo C.
Francisco GUILTY beyond reasonable doubt in each of the above entitled
cases and appreciating in his favor the mitigating circumstance which is
analogous to passion or obfuscation, the Court hereby sentences the said
accused in each case to a straight penalty of EIGHT (8) MONTHS
imprisonment, with the accessory penalties prescribed by law; and to pay
the costs. 17
 Nowhere in the RTC Decision is it stated or even hinted at that the
accused was acquitted or absolved in any of the four (4) counts under each of
the four (4) Informations, or that any part of the judgment of conviction was
reversed, or that any of the cases, counts or incidents was dismissed.
Otherwise, we will have to account for the twelve (12) other penalties imposed
by the MeTC. Can we? What is clear is that the judgment of conviction
rendered by the MeTC was affirmed with the sole modification on the duration
of the penalties.
cdll

In fine, considering that the multiple prison terms should not be

summed up but taken separately as the totality of all the penalties is not the
test, petitioner should have immediately filed an application for probation as
he was already qualified after being convicted by the MeTC, if indeed
thereafter he felt humbled was ready to unconditionally accept the verdict of
the court and admit his liability. Consequently, in appealing the Decision of the
MeTC to the RTC, petitioner lost his right to probation. For, plainly, the law
considers appeal and probation mutually exclusive remedies. 18
Third. Petitioner appealed to the RTC not to reduce or even correct the
penalties imposed by the MeTC, but to assert his innocence. Nothing more.
The cold fact is that petitioner appealed his conviction to the RTC not for the
sole purpose of reducing his penalties to make him eligible for probation —
since he was already qualified under the MeTC Decision — but rather to insist
on his innocence. The appeal record is wanting of any other purpose. Thus, in
his Memorandum before the RTC, he raised only three (3) statements of error
purportedly committed by the MeTC all aimed at his acquittal: (a) in finding
that the guilt of the accused has been established because of his positive
identification by the witness for the prosecution; (b) in giving full faith and
credence to the bare statements of the private complainants despite the
absence of corroborating testimonies; and, (c) in not acquitting him in all the
cases, 19 Consequently, petitioner insisted that the trial court committed an
error in relying on his positive identification considering that private
complainants could not have missed identifying him who was their President
and General Manager with whom they worked for a good number of years.
Petitioner further argued that although the alleged defamatory words were
uttered in the presence of other persons, mostly private complainants' co-
employees and clients, not one of them was presented as a witness. Hence,
according to petitioner, the trial court could not have convicted him on the
basis of the uncorroborative testimony of private complainants. 20
Certainly, the protestations of petitioner connote profession of
guiltlessness, if not complete innocence, and do not simply put in issue the
propriety of the penalties imposed. For sure, the accused never manifested
that he was appealing only for the purpose of correcting a wrong penalty — to
reduce it to within the probationable range. Hence, upon interposing an
appeal more so after asserting his innocence therein, petitioner should be
precluded from seeking probation. By perfecting his appeal, petitioner ipso
facto relinquished his alternative remedy of availing of the Probation Law the
purpose of which is simply to prevent speculation or opportunism on the part
of an accused who although already eligible does not at once apply for
probation, but doing so only after failing in his appeal.
The fact that petitioner did not elevate the affirmance of his conviction
by the RTC to the Court of Appeals does not necessarily mean that his appeal
to the RTC was solely to reduce his penalties. Conversely, he was afraid that
the Court of Appeals would increase his penalties, which could be worse for
him. Besides, the RTC Decision had already become final and executory
because of the negligence, according to him, of his former counsel who failed
to seek possible remedies within the period allowed by law.
Perhaps it should be mentioned that at the outset petitioner, in
accordance with Sec 3, par. (e), Rule 117 of the Rules of Court, 21 should
have moved to quash as each of the four (4) Informations filed against him
charged four (4) separate crimes of grave oral defamation, committed on four
(4) separate days. His failure to do so however may now be deemed a waiver
under Sec. 8 of the same Rule 22 and he can be validly convicted, as in the
instant case, of as many crimes charged in the Information. cdrep

Fourth. The application for probation was filed way beyond the period
allowed by law. This is vital and crucial. From the records it is clear that the
application for probation was filed "only after a warrant for the arrest of
petitioner had been issued . . . (and) almost two months after (his) receipt of
the Decision" 23 of the RTC. This is a significant fact which militates against
the instant petition. We quote with affirmance the well-written, albeit
assailed, ponencia of now Presiding Justice of the Court of Appeals
Nathanael P. De Pano, Jr., on the specific issue —
. . . the petition for probation was filed by the petitioner out of time.
The law in point, Section 4 of P.D. 968, as amended, provides thus:
'SECTION 4. Grant of Probation. — Subject to the
provisions of this Decree, the trial court may, after it shall have
convicted and sentenced a defendant, and upon application by said
defendant within the period for perfecting an appeal . . . place the
defendant on probation . . .'
Going to the extreme, and assuming that an application for
probation from one who had appealed the trial court's judgment is allowed
by law, the petitioner's plea for probation was filed out of time. In the
petition is a clear statement that the petitioner was up for execution of
judgment before he filed his application for probation. P.D. No. 968 says
that the application for probation must be filed "within the period for
perfecting an appeal;" but in this case, such period for appeal had passed,
 meaning to say that the Regional Trial Court's decision had attained
finality, and no appeal therefrom was possible under the law. Even
granting that an appeal from the appellate court's judgment is
contemplated by P.D. 968, in addition to the judgment rendered by the
trial court, that appellate judgment had become final and was, in fact, up
for actual execution before the application for probation was attempted by
the petitioner. The petitioner did not file his application for probation before
the finality of the said judgment; therefore, the petitioner's attempt at
probation was filed too late.
Our minds cannot simply rest easy on the proposition that an
application for probation may yet be granted even if it was filed only after
judgment has become final, the conviction already set for execution and a
warrant of arrest issued for service of sentence.
The argument that petitioner had to await the remand of the case to the
MeTC, which necessarily must be after the decision of the RTC had become
final, for him to file the application for probation with the trial court, is to stretch
the law beyond comprehension. The law, simply, does not allow probation
after an appeal has been perfected.
Accordingly, considering that prevailing jurisprudence treats appeal and
probation as mutually exclusive remedies, and petitioner appealed from his
conviction by the MeTC although the imposed penalties were already
probationable and in his appeal, he asserted only his innocence and did not
even raise the issue of the propriety of the penalties imposed on him, and
finally, he filed an application for probation outside the period for perfecting an
appeal granting he was otherwise eligible for probation, the instant petition for
review should be as it is hereby DENIED.
SO ORDERED.
Narvasa, C .J ., Feliciano, Padilla, Bidin, Regalado, Davide, Jr.
and Quiason, JJ., concur.
Romero, Melo, Puno, Kapunan, and Francisco, JJ., join the dissent of
Justice Mendoza.
Mendoza, J., please see dissent.
(Francisco v. Court of Appeals, G.R. No. 108747, [April 6, 1995], 313 PHIL 241-
|||

278)

THIRD DIVISION

[G.R. No. 125108. August 3, 2000.]

 ALEJANDRA PABLO, petitioner, vs. HON. SILVERIO Q.
CASTILLO, Presiding Judge, Branch 43, Regional Trial Court,
First Judicial Region, Dagupan City and PEOPLE of the
PHILIPPINES, respondents.

Public Attorney's Office for petitioner.

The Solicitor General for respondents.

SYNOPSIS

Citing her previous conviction for one (1) count of B.P. 22, the Regional Trial
Court denied petitioner's application for probation. Hence, this action for certiorari,
petitioner contending that the "previous conviction" contemplated under
the Probation Law which disqualifies an offender for probation does not refer to
her particular case where several crimes arose out of a single act or transaction.
Subject of the application for probation was her subsequent conviction for two (2)
counts of B.P. 22 for the two checks she issued simultaneously with the check
subject of her prior conviction.
The provision of the law is definitive and unqualified. There is nothing in it
which qualifies "previous conviction" as referring to a conviction for a crime entirely
different from that which the offender is applying for probation. It is well settled that
the probation law is not a penal statute. Therefore, the principle of liberal
interpretation is inapplicable and when the meaning is clearly discernible from the
language of the statute, there is no room for construction or interpretation. The
petition was dismissed.

SYLLABUS

STATUTORY CONSTRUCTION; WHEN MEANING OF STATUTE IS

CLEARLY DISCERNIBLE FROM ITS LANGUAGE, IT MUST BE GIVEN ITS
LITERAL MEANING AND APPLIED WITHOUT ANY INTERPRETATION; POLICY
OF LIBERAL INTERPRETATION IS NOT APPLICABLE TO PROBATION
STATUTES. — It is a basic rule of statutory construction that if a statute is clear,
plain and free from ambiguity, it must be given its literal meaning and applied
without any interpretation. Not only that; in the matter of interpretation of laws on
probation, the Court has pronounced that "the policy of liberality of probation
statutes cannot prevail against the categorical provisions of the law." Section 9
paragraph (C) is in clear and plain language, to the effect that a person who was
previously convicted by final judgment of an offense punishable by imprisonment
of not less than one month and one day and/or a fine of not less than two hundred
pesos, is disqualified from applying for probation. This provision of law is definitive
and unqualified. There is nothing in Section 9, paragraph (C) which qualifies
"previous conviction" as referring to a conviction for a crime which is entirely
different from that for which the offender is applying for probation or a crime which
arose out of a single act or transaction as petitioner would have the court to
understand. It is well-settled that the probation law is not a penal statute; and
therefore, the principle of liberal interpretation is inapplicable. And when the
meaning is clearly discernible from the language of the statute, there is no room
for construction or interpretation.ICAcaH

DECISION

PURISIMA, J : p

At bar is an original petition for certiorari under Rule 65 of the Rules of

Court imputing grave abuse of discretion amounting to lack or excess of jurisdiction
to the Regional Trial Court, Branch 43, Dagupan City, for denying petitioner's
application for probation and the motion for reconsideration of two Orders dated
March 25, 1996 and April 29, 1996, respectively.
The antecedent facts are as follows:
On January 12, 1994, petitioner Alejandra Pablo was charged with a
violation of Batas Pambansa Bilang 22, otherwise known as the Bouncing Checks
Law, in three separate Informations, for issuing three bad checks in the total
amount of P92,334.00 each to complainant Nelson Mandap.
All three Informations alleged that on or about the 25th of May, 1993,
petitioner did then and there willfully, unlawfully and criminally draw, issue and
deliver various checks to Nelson Mandap, in partial payment of a loan she obtained
from him, knowing that at the time of the issuance of such checks, she did not have
sufficient funds in or credit with the bank. Subject checks were dishonored by the
drawee bank upon presentment for payment, it appearing that the current account
of petitioner had been closed, and she failed to pay the amount or make
arrangements for the payment thereof, despite notice of dishonor.
Docketed as Criminal Cases Nos. 94-00197-D, 94-00198-D and 94-00199-
D, respectively, the three cases were not consolidated. The first two were raffled
and assigned to Branch 43 while the third case to Branch 41 of the Regional Trial
Court in Dagupan City.
 On June 21, 1995, Branch 41 of the said lower court rendered judgment in
Criminal Case No. 94-0199-D, convicting petitioner of the crime charged and
imposing upon her a fine of P4, 648.00.
On November 28, 1995, Branch 43 promulgated its decision in Criminal
Cases Nos. 94-00197-D and 94-00198-D, finding petitioner guilty of violating B.P.
Blg. 22, and sentencing her to pay the amount of P4,668.00 and to serve a prison
term of thirty (30) days in each case. ADaSEH

Petitioner applied for probation in Criminal Cases Nos. 94-00197-D and 94-
00198-D. Her application was given due course and the probation office was
required to submit a post-sentence investigation report.
On March 25, 1996, the probation office arrived at a favorable evaluation on
the suitability of petitioner for probation. However, the recommendation of the local
probation office was overruled by the National Probation Office. It denied
petitioner's application for probation on the ground that the petitioner is disqualified
under Section 9 of P.D. 968 (Probation Law). Respondent judge denied petitioner's
application for probation in the Order dated March 25, 1996. Petitioner moved for
reconsideration but to no avail. The same was denied on April 29, 1996.
Undaunted, petitioner brought the present petition.
The sole issue for resolution here is whether or not the respondent court
acted with grave abuse of discretion in denying petitioner's application for
probation on the ground of disqualification from probation under Section 9 of P.D.
968.
Under Section 9 of the Probation Law, P.D. 968, the following offenders
cannot avail of the benefits of probation:
a) those sentenced to serve a maximum term of imprisonment of
more than six years;
b) those convicted of subversion or any crime against the national
security or the public order;
c) those who have previously been convicted by final judgment of
an offense punished by imprisonment of not less than one
month and one day and/or fine of not less than two hundred
pesos;
d) those who have been once on probation under the provisions of
this Decree; and
e) those who are already serving sentence at the time the
substantive provisions of this Decree became applicable
pursuant to Section 33 hereof.
 The National Probation Office denied petitioner's application for probation
under Section 9 paragraph (c) P.D. 968 because a prior conviction was entered
against the petitioner on June 21, 1995 in Criminal Case No. 94-0199, penalizing
her with a fine of P4,648.00; thereby placing her within the ambit of disqualification
from probation under Section 9 paragraph (c) of P.D. 968.
Petitioner assails the denial of her application for probation; invoking the
ruling of this Court in several cases favoring liberal interpretation of the provisions
of P.D. 968 so as to afford first offenders a second chance to reform in consonance
with the avowed purpose and objective of the Probation Law. She theorized that
"previous conviction" under Section 9 paragraph (c) should not be literally and
strictly interpreted but should rather be understood as referring to a situation
wherein the accused was previously convicted of a crime that arose differently, or
was done on a different date, from the conviction of a crime for which probation is
applied for. It is contended by petitioner that Section 9 paragraph (c) should not
refer, as in her particular case, where several crimes arose out of a single act or
transaction.
To buttress her stance, petitioner placed reliance on this Court's ruling
in Rura vs. Lopeña. 1 In the said case, the accused was convicted of five counts
of estafa committed on different dates. He was able to consolidate the five cases
in a single sala such that the judgment of conviction against him in all the five cases
was embodied in a single decision entered on the same date. When the accused
applied for probation, the same was denied but on appeal, this Court granted the
application for probation; ratiocinating thus:
". . . applied for probation he had no previous conviction by final
judgment. When he applied for probation the only conviction against him
was the judgment which was the subject of his application. The statute
relates "previous" to the date of conviction, not the date of the commission
of the crime." (italics ours)
aEDCAH

Precisely because of the aforecited ruling in Rura vs. Lopeña the petition
under scrutiny cannot prosper.
It is a basic rule of statutory construction that if a statute is clear, plain and
free from ambiguity, it must be given its literal meaning and applied without any
interpretation. 2 Not only that; in the matter of interpretation of laws on probation,
the Court has pronounced that "the policy of liberality of probation statutes cannot
prevail against the categorical provisions of the law." 3
Section 9 paragraph (c) is in clear and plain language, to the effect that a
person who was previously convicted by final judgment of an offense punishable
by imprisonment of not less than one month and one day and/or a fine of not less
than two hundred pesos, is disqualified from applying for probation. This provision
of law is definitive and unqualified. There is nothing in Section 9, paragraph (c)
which qualifies "previous conviction as referring to a conviction for a crime which
is entirely different from that for which the offender is applying for probation or a
crime which arose out of a single act or transaction as petitioner would have the
court to understand. cAECST

In the case of Rura vs. Lopeña relied upon by petitioner, the Court declared
that "previous" refers to conviction, and not to commission of a crime. At the time
Rura was convicted of the crime for which he was applying for probation, he had
no prior conviction. In the present case of petitioner, when she applied for
probation in Criminal Cases Nos. 94-00197-D and 94-00198-D, she had a previous
conviction in Criminal Case No. 94-00199-D, which thereby disqualified her from
the benefits of probation.
It is well-settled that the probation law is not a penal statute; 4 and therefore,
the principle of liberal interpretation is inapplicable. And when the meaning is
clearly discernible from the language of the statute, there is no room for
construction or interpretation.
WHEREFORE, for want of merit, the petition is hereby DISMISSED. No
pronouncement as to costs.
SO ORDERED.
Melo, Vitug, Panganiban and Gonzaga-Reyes, JJ., concur.
||| (Pablo v. Castillo, G.R. No. 125108, [August 3, 2000], 391 PHIL 873-878)

THIRD DIVISION

[G.R. No. 127899. December 2, 1999.]

MARILYN C. SANTOS, petitioner, vs. HONORABLE COURT OF

APPEALS and CORAZON T. CASTRO, respondents.

Emeterio T. Balguna for petitioner.

Santiago, Sarte & Associates for private respondent.

SYNOPSIS

Petitioner Marilyn Santos was convicted for fifty-four (54) counts of violation
of Batas Pambansa Bilang 22. She filed an application for probation. Private
respondent opposed said application on the ground that she had been sentenced
to a total imprisonment of fifty four (54) years, she failed to pay her judgment debt
in the total amount of P3,989,175.10 and in fact, in order to evade her civil liability
to private respondent she sold her property located at La Trinidad, Benguet to Mr.
Teodoro S. Dijamco before the sheriff can annotate the Notice of Levy on
Execution on the Certificate of Title of the said property. But despite the opposition,
Judge Umali granted petitioner's application for probation for a period of six years.
Private respondent filed with the Court of Appeals a petition
for certiorari questioning the grant of probation. The appellate court set aside the
Order granting the probation. Hence, this petition.
The Court ruled that to allow petitioner to be placed on probation would be
to depreciate the seriousness of her malefactions. Worse, instead of complying
with the orders of the trial court requiring her to pay her civil liability, she even
resorted to devious schemes to evade the execution of the judgment against her.
Verily, petitioner is not the penitent offender who is eligible for probation within
legal contemplation. Her demeanor manifested that she is incapable to be
reformed and will only be a menace to society should she be permitted to co-mingle
with the public.

SYLLABUS

1. REMEDIAL LAW; SPECIAL CIVIL ACTIONS; CERTIORARI; MAY BE

FILED BY A PRIVATE COMPLAINANT IN A CRIMINAL CASE WHO HAS AN
INTEREST IN THE CIVIL ASPECT OF THE SAID CASE. — The Court holds that
the private respondent had the personality to bring a special civil action
for certiorari before the Court of Appeals. Being the person aggrieved by
petitioner's issuance of bouncing checks, private respondent has an interest in the
civil aspect of the case. It is not true that it is only the State or the People that can
prosecute the special civil action before the Court of Appeals. Private respondent
may bring such action in her own name to protect her interest in the case.
2. CRIMINAL LAW; SUSPENSION OF EXECUTION OF SENTENCE;
PROBATION; NOT A RIGHT BUT A MERE PRIVILEGE OF AN ACCUSED. —
Probation is not a right of an accused but a mere privilege, an act of grace and
clemency or immunity conferred by the state, which maybe granted to a seemingly
deserving defendant who thereby escapes the extreme rigors of the penalty
imposed by law for the offense for which he was convicted. The primary objective
in granting probation is the reformation of the probationer. Courts must be
meticulous enough to ensure that the ends of justice and the best interest of the
public as well as the accused be served by the grant of probation.
3. ID.; ID.; ID.; GRANT THEREOF IS DISCRETIONARY UPON THE
COURT. — Probation is a just privilege the grant of which is discretionary upon
the court. Before granting probation, the court must consider the potentiality of the
offender to reform, together with the demands of justice and public interest, along
with other relevant circumstances. The courts are not to limit the basis of their
decision to the report or recommendation of the probation officer, which is at best
only persuasive.
4. ID.; ID.; ID.; GROUND FOR DENIAL; DEVIOUS AND REPREHENSIBLE
CHARACTER OF ACCUSED. — The Court finds merit in the determination by the
Court of Appeals that the herein petitioner is not entitled to probation because she
had displayed a devious and reprehensible character in trying to evade the
implementation of the execution against her thereby rendering the judgment
against her ineffective.
5. ID.; ID.; ID.; ID.; GRANT THEREOF WOULD DEPRECIATE
SERIOUSNESS OF MALEFACTIONS. — It can be gleaned unerringly that
petitioner has shown no remorse for the criminal acts she committed against the
private respondent. Her issuing subject fifty-four (54) bouncing checks is a serious
offense. To allow petitioner to be placed on probation would be to depreciate the
seriousness of her malefactions. Worse, instead of complying with the orders of
the trial court requiring her to pay her civil liability, she even resorted to devious
schemes to evade the execution of the judgment against her. Verily, petitioner is
not the penitent offender who is eligible for probation within legal contemplation.
Her demeanor manifested that she is incapable to be reformed and will only be a
menace to society should she be permitted to co-mingle with the public.
6. ID.; ID.; ID.; IMPROPERLY GRANTED IF THERE IS NO PROBATION
TO SPEAK OF. — Petitioner's contention that her probation is fait accompli is
equally untenable. The six (6) year period of probation which commenced on June
30, 1995, has not yet been completed. Furthermore, even if the said period has
expired, such lapse of the period of probation does not detract from the fact that
the order granting probation was tainted with grave abuse of discretion. Probation
having been improperly granted, there is no probation to speak of. HDATSI

7. ID.; HOLD DEPARTURE ORDER; DOES NOT RENDER NUGATORY

MULTIPLE JUDGMENT RENDERED. — The Court rules that the issuance of a
"hold departure order" against the petitioner is warranted under the premises.
Having displayed a criminal tendency and propensity to evade or disobey the
lawful orders of the trial court, there is indeed the need to restrict the petitioner's
movements and activities so as not to render nugatory the multiple judgments
rendered against her.

DECISION

PURISIMA, J : p
 At bar is a petition for review on certiorari under Rule 45 of the Rules of
Court assailing the Decision, 1 Resolution, 2 and Supplemental Resolution 3 of the
Court of Appeals in CA-G.R. SP No. 38522. dctai

The facts that matter are as follows:

Petitioner issued fifty-four (54) checks in the total amount of Three Million
Nine Hundred Eighty Nine Thousand One Hundred Seventy-Five and 10/100
(P3,989,175.10) Pesos, all of which checks were dishonored upon presentment to
the drawee bank.
On October 12, 1993, the petitioner was charged with fifty-four (54) counts
of violation of Batas Pambansa Bilang 22 ("BP 22") in fifty-four (54) separate
Informations, docketed as Criminal Case Nos. 102009 to 102062, respectively,
before Branch 160 of the Regional Trial Court of Pasig City. To the said
accusations, petitioner pleaded not guilty upon arraignment. After trial, she was
found guilty in a Decision promulgated on December 20, 1994, sentencing her to
a total prison term of fifty-four (54) years and to pay P3,989,175.10 to the private
respondent.
Petitioner therefore, filed an application for probation, which was referred by
Presiding Judge Umali to the Probation Officer of Marikina, for investigation, report,
and recommendation.
Private respondent opposed subject application for probation on the
grounds that: the petitioner is not eligible for probation because she has been
sentenced to suffer an imprisonment of fifty-four (54) years, and she failed to pay
her judgment debt to the private respondent.
On January 6, 1995, private respondent presented a "Motion for a Writ of
Execution", which motion was granted by Judge Umali in an Order dated January
11, 1995. Thus, the corresponding writ of execution issued for the implementation
and satisfaction of the monetary aspect of the said Decision. Thereafter, the sheriff
prepared and signed a Notice of Levy on Execution over several properties
belonging to the petitioner.
On February 13, 1995, petitioner and her husband executed a "Deed of
Absolute Sale" deeding out in favor of Teodoro S. Dijamco ("Mr. Dijamco") for
P264,570.00 a parcel of land in La Trinidad, Benguet ("Benguet Property"),
covered by Transfer Certificate of Title No. T-18721 ("TCT No. T-18721"). On the
same day, the sheriff annotated the Notice of Levy on Execution on the dorsal
portion of TCT No. T-18721.
On March 29, 1995, Mr. Dijamco filed an "Affidavit of Third-Party-Claim" over
the same Benguet property on the strength of the said previous sale but averring
already a consideration of P3,000,000.00. Attached thereto are the checks he
allegedly paid for subject property.
 On May 5, 1995, private respondent interposed a "Supplemental
Opposition" to the application for probation; contending that:
"xxx xxx xxx
2. Recent developments show that the accused had been
disposing and/or mortgaging her properties in obvious attempt to negate
the satisfaction of her civil liability to herein private complainant, as
evidenced by the Affidavit of Third Party Claim filed by Teodoro S. Dijamco
and the Real Estate Mortgage executed by the accused in favor of the
Rural Bank of Angono, Inc. (attached as Annexes "A" and "B" in the
Comment/Opposition to the Post Sentence Investigation Report).
3. It must be stressed that the real estate mortgage was executed
by the accused in anticipation of an unfavorable judgment and that the
alleged sale the real property in favor of Teodoro Dijamco was made after
this Honorable Court had rendered judgment convicting the accused of
the crime charged and after notice of levy on execution had been
annotated on the title. Clearly, the said mortgage and sale executed by
the accused constitute indirect contempt under Sec. 3 of Rule 71 of
the Rules of Court and the accused may likewise be prosecuted criminally
for the said acts.
LexLib

4. Moreover, the accused is disqualified from the benefits of the

aforecited Decree as she has been sentenced to a total of fifty four (54)
years of imprisonment.
5. From the foregoing, it is crystal clear that the accused is not
entitled to the benefits of the probation law and that the acts enumerated
constitute indirect contempt."
In the Order he issued on June 30, 1995, Judge Umali granted petitioner's
application for probation for a period of six (6) years, subject to the following terms
and conditions, to wit:
"1. Probationer shall report initially to the Chief parole and Probation
Officer at Marikina Parole & Probation Off. Hall of Justice, Marikina
within seventy-two hours from receipt of the Order granting
Probation.
2. She shall, thereafter, report to her supervising probation and parole
officer 2 times a month, unless otherwise modified by the Chief
Probation and Parole Officer.
3. She shall reside in #8 Jazmin, Twinsville Subd. Concepcion, Marikina
and shall not change her residence without approval of the
supervising probation and parole officer or of the Court, as the case
may be.
 4. She shall secure a written permit to travel outside the jurisdiction of the
parole and probation office from the chief probation officer, and
from the Court if such travel exceeds thirty (30) days.
5. She shall allow the supervising probation officer, or an authorized
Volunteer Aide to visit her place of work and home.
6. She shall meet her family responsibilities.
7. She shall devote herself to a specific employment and shall not change
said employment without prior notice to the supervising officer;
and/or shall pursue a prescribed secular study or vocational
training.
8. She shall refrain from associating with persons of questionable
character, and shall not commit any other offense.
9. She shall cooperate with her program of supervision, and shall satisfy
any other condition related to her rehabilitation and not unduly
restrictive of her liberty or incompatible with her freedom of
conscience.
10. She shall plant at least five (5) fruit bearing trees in his backyard or
any government lot as part of her rehabilitation.
11. She shall participate in the Parole and Probationer's Project as clean
and green project in Marikina and attend the First Friday Mass at
the Hall of Justice of Marikina."
Private respondent moved for reconsideration but to no avail. Her motion for
reconsideration was denied.
Dissatisfied, the private respondent filed with the Court of Appeals a petition
for Certiorari under Rule 65 of the Rules of Court, questioning the grant of
probation. In its Decision 4 dated August 16, 1996, the Court of Appeals ruled thus:
"IN THE LIGHT OF ALL THE FOREGOING, the Petition is
GRANTED. The Orders of the Respondent Judge, Annexes "A" and "B"
of the Petition are SET ASIDE. Let the records of this case be remanded
to the Court a quo. The Respondent Judge is hereby directed to issue a
warrant for the arrest of the Private Respondent."
Private respondent filed a Motion for Reconsideration 5 of the above
Decision but the same was denied in the Resolution 6 dated January 7, 1997,
holding:
"Anent Private Respondent's 'Motion for Reconsideration', We find
no valid justification for a reversal or reconsideration of our Decision.
Private Respondent's claim that the Petitioner is not the proper party-in-
interest to file the Petition is barren of merit. In the first place, the Private
Respondent, in her Answer/Comment and the Public Respondent, in his
 Comment, on the Petition, never claimed that the Petitioner was not the
proper party-in-interest to file the Petition. More, the Solicitor General
appearing for the Public Respondent has not filed any 'Motion for
Reconsideration' of our Decision. Evidently, the Solicitor General is in
accord with our Decision.
Anent Petitioner's 'Motion for the Issuance of a Hold Departure
Order', We find the said motion meritorious and hereby grants the same.
Accordingly, the Commissioner & Immigration and Deportation is hereby
directed not to allow the departure from the Philippines of the Private
Respondent Marilyn C. Santos, married, and a resident of No. 8 Jasmin
Street, Twinville Subdivision, Marikina City, until further orders of this
Court.
SO ORDERED."
In a Supplemental Resolution 7 dated January 29, 1997, the Court of
Appeals elucidated further its Resolution that the herein petitioner is the real party-
in-interest, and declared that there were no procedural lapses in the granting of
private respondent's petition.
Having lost the case before the Court of Appeals, petitioner has come to this
Court for relief; contending that:
I
PRIVATE RESPONDENT CORAZON T. CASTRO IS NOT THE REAL
PARTY IN INTEREST TO QUESTION THE GRANT OF PROBATION TO
HEREIN PETITIONER.
II
NON-PAYMENT OF THE CIVIL LIABILITY IMPOSED ON PETITIONER
IN THE DECISION RENDERED IN THE CRIMINAL CASE IS NOT A
GROUND FOR THE REVOCATION OF PROBATION. LLjur

III
THE COURT OF APPEALS IS MORE INTERESTED IN THE FULL
SATISFACTION OF PRIVATE RESPONDENT CORAZON T. CASTRO
RELATIVE TO THE CIVIL ASPECT OF CASE THAN IN THE
REHABILITATION OF PETITIONER AS A PROBATIONER. THIS IS
HIGHLY IMPROPER.
IV
THE GRANT OF PROBATION TO PETITIONER MARILYN C. SANTOS
IS FAIT ACCOMPLI AND SHE HAS COMPLIED WITH THE
CONDITIONS OF THE PROBATION GRANTED HER.
 V
THE GRANT OF PROBATION BY JUDGE UMALI TO PETITIONER
UNDER THE FACTS OBTAINING DOES NOT CONSTITUTE GRAVE
ABUSE OF DISCRETION.
VI
THE COURT OF APPEALS COMMITTED GRAVE ABUSE OF
DISCRETION IN ISSUING A "HOLD DEPARTURE ORDER" TO
PREVENT PETITIONER FROM LEAVING THE PHILIPPINES.
Anent the first issue, the Court holds that the private respondent had the
personality to bring a special civil action for certiorari before the Court of Appeals.
Being the person aggrieved by petitioner's issuance of bouncing checks, private
respondent has an interest in the civil aspect of the case. It is not true that it is only
the State or the People that can prosecute the special civil action before the Court
of Appeals. Private respondent may bring such action in her own name to protect
her interest in the case.
"In a special civil action for certiorari filed under Section 1, Rule 65
of the Rules of Court wherein it is alleged that the trial court committed a
grave abuse of discretion amounting to lack of jurisdiction or on other
jurisdictional grounds, the rules state that the petition may be filed by
the person aggrieved. In such case, the aggrieved parties are the State
and the private offended party or complainant. The complainant has an
interest in the civil aspect of the case so he may file such special civil
action questioning the decision or action of the respondent court on
jurisdictional grounds. In so doing, complainant should not bring the action
in the name of the People of the Philippines. The action may be
prosecuted in name of said complainant." (People v. Santiago, 174 SCRA
143, 153)
xxx xxx xxx
"In the instant case, the recourse of the complainant to the
respondent Court was therefore proper since it was brought in his own
name and not in that of the People of the Philippines. That the said
proceedings benefited the People is not a reversible error. Neither does it
constitute grave abuse of discretion. . . ." (De la Rosa v. Court of Appeals,
253 SCRA 501, 508)
Anent the second, third, and fifth issues, erroneous is petitioner's
submission that the Court of Appeals unduly stressed petitioner's non-satisfaction
of her civil liability as the basis for reversing the grant of probation to her. The
proper approach to the problem, and the Court considers the same as the pivotal
issue in this case, is whether the petitioner is entitled to probation.
 The point of conflict is whether the petitioner is qualified to be granted
probation. Stated otherwise, has petitioner shown her qualifications entitling her to
the grant of probation? Is society better off with petitioner in jail or should petitioner
be allowed to co-mingle with the people, subject to some conditions, despite her
criminal record?
Probation is not a right of an accused but a mere privilege, an act of grace
and clemency or immunity conferred by the state, which may be granted to a
seemingly deserving defendant who thereby escapes the extreme rigors of the
penalty imposed by law for the offense for which he was convicted. 8 The primary
objective in granting probation is the reformation of the probationer. Courts must
be meticulous enough to ensure that the ends of justice and the best interest of
the public as well as the accused be served by the grant of probation. 9
Probation is a just privilege the grant of which is discretionary upon the court.
Before granting probation, the court must consider the potentiality of the offender
to reform, together with the demands of justice and public interest, along with other
relevant circumstances. 10 The courts are not to limit the basis of their decision to
the report or recommendation of the probation officer, which is at best only
persuasive. 11
In granting petitioner's application for probation, Judge Umali ratiocinated:
"Based on the report of the probation officer, accused may be
granted probation (P.D. 968, as amended) The findings of the Parole and
Probation Office shows that accused is not considered as a rescidivist
[sic]; accused petitioner is not in need of correctional treatment, but more
of an individualize treatment of rehabilitation; offenses committed by
accused/petitioner is not so grave a crime that she can pose a great threat
in the peace and order of the community where she resides; and
accused/petitioner is not condemned by the community because of her
cases, it can be presumed that she is still welcome to mingle with the
community and participate in any community projects.
Her failure to satisfy the judgment on the civil liability is not a ground
for the denial of the application for probation of accused. Moreover, the
court had earlier issued a writ of execution to satisfy the money judgment
in an order dated January 11, 1995 and the sheriff of this court had issued
a notice of levy on execution on the properties of accused. LLjur

Foregoing considered that petition of accused for probation is

hereby Granted." (Order, June 30, 1995; Rollo, p. 99)
When the aforesaid order was assailed before it, the Court of Appeals
reversed the grant of probation, on the grounds that the respondent judge gravely
abused his discretion and petitioner was unworthy of probation; ruling thus:
 "As it was, the Private Respondent had violated, with
impunity, Batas Pambansa Blg. 22 no less than fifty-four (54) times to the
damage and prejudice of the Petitioner in the aggregate amount of close
to P4,000,000.00. One would believe that the Private Respondent had
learned her lesson, would strive, from then on, to reform, shy away from
doing and abetting injustices to her fellowmen, make amends for her
criminal misdeeds, demonstrate remorse and concomitant determination
to reform and turn a new leaf in her life, and reassume her role as a
responsible and productive member of community. On the contrary, after
escaping from the specter of imprisonment and averting the tribulations
and vicissitudes of a long prison term, by applying for and securing
probation from the Respondent Judge, Private Respondent resorted to
devious chicanery and artifice to prevent Petitioner from recovering her
losses and perpetrate reprehensible if not criminal acts of falsification of
the "Deed of Absolute Sale" in favor of Dijamco over her Benguet property,
thus flaunting, once again, her mockery and defiance of justice, foul play
and unabashedly making gross misrepresentations to the Probation
Officer.
In fine, then, We find and so declare that the Respondent Judge
abused his discretion amounting to lack of jurisdiction in granting
probation to the Private Respondent. Accordingly, We find and so declare
that the Orders complained of, Annexes 'A' and 'B' of the Petition are null
and void." (Decision, p. 24; Rollo, p. 51)
The Court finds merit in the determination by the Court of Appeals that the
herein petitioner is not entitled to probation because she had displayed a devious
and reprehensible character in trying to evade the implementation of the execution
against her thereby rendering the judgment against her ineffective; as indicated by
the following facts and circumstances, to wit:
1. On February 13, 1995, petitioner disposed of her Benguet property by
means of a "Deed of Absolute Sale" in favor of Mr. Dijamco and
had the deed registered in Benguet to preempt the sheriff of the
lower court from causing the "Notice of Levy on Execution"
annotated at the back of the title of the Benguet property.
2. The "Deed of Absolute Sale" executed in favor of Mr. Dijamco stated a
consideration of P264,570.00 when in truth and in fact, the
consideration was P3,000,000.00, as stated in the uncontested
"Affidavit of Third Party Claim" of Mr. Dijamco and as evidenced by
the checks issued to and encashed by petitioner. By understating
the price, petitioner committed acts of falsification causing damage
to the government as the latter was deprived of taxes that should
have been paid from the sale.
3. There is evidence to prove that the "Deed of Absolute Sale" may just
have been a simulated sale because petitioner's husband, in his
 "Affidavit of Third Party Claim" dated February 21, 1995, still
claimed the property to be theirs. There is no mention whatsoever
of any sale to Mr. Dijamco.
4. Petitioner never remitted a single centavo of the proceeds of the "Real
Estate Mortgage" (in favor of Rural Bank of Angono, Inc.) and
"Deed of Absolute Sale" (in favor of Mr. Dijamco) to the private
respondent. If she really had the good intentions of settling and
satisfying the judgment of the trial court, she should have at least
offered a portion of said proceeds to private respondent. Worse,
she exhibited a design to completely evade her civil obligation to
private respondent.
5. Petitioner's claim that the Benguet property actually belongs to Corazon
Leano is of no moment and could not be given credence. The
documentary evidence presented in this case overwhelmingly
proves that such claim is puerile and tenuous. Primarily, the "Deed
of Absolute Sale" and "Affidavit of Third Party Claim" (filed by
petitioner's husband) prove their ownership of the Benguet
property.cdtai

From the foregoing, it can be gleaned unerringly that petitioner has shown
no remorse for the criminal acts she committed against the private respondent.
Her issuing subject fifty-four (54) bouncing checks is a serious offense. To allow
petitioner to be placed on probation would be to depreciate the seriousness of her
malefactions. Worse, instead of complying with the orders of the trial court
requiring her to pay her civil liability, she even resorted to devious schemes to
evade the execution of the judgment against her. Verily, petitioner is not the
penitent offender who is eligible for probation within legal contemplation. Her
demeanor manifested that she is incapable to be reformed and will only be a
menace to society should she be permitted to co-mingle with the public.
With respect to the fourth issue, petitioner's contention that her probation
is fait accompli is equally untenable. The six (6) year period of probation which
commenced on June 30, 1995, has not yet been completed. Furthermore, even if
the said period has expired, such lapse of the period of probation does not detract
from the fact that the order granting probation was tainted with grave abuse of
discretion. Probation having been improperly granted, there is no probation to
speak of.
Anent the last issue, the Court rules that the issuance of a "hold departure
order" against the petitioner is warranted under the premises. Having displayed a
criminal tendency and propensity to evade or disobey the lawful orders of the trial
court, there is indeed the need to restrict the petitioner's movements and activities
so as not to render nugatory the multiple judgments rendered against her.
 WHEREFORE, the petition is DENIED and the Decision of the Court of
Appeals in CA-G.R. SP No. 38522 AFFIRMED. No pronouncement as to costs.
SO ORDERED. LexLib

Melo, Vitug, Panganiban and Gonzaga-Reyes, JJ., concur.

(Santos v. Court of Appeals, G.R. No. 127899, [December 2, 1999], 377 PHIL
|||

642-655)

EN BANC

[G.R. No. 182748. December 13, 2011.]

ARNEL COLINARES, petitioner, vs. PEOPLE OF THE

PHILIPPINES, respondent.

DECISION

ABAD, J : p

This case is about a) the need, when invoking self-defense, to prove all
that it takes; b) what distinguishes frustrated homicide from attempted
homicide; and c) when an accused who appeals may still apply for probation
on remand of the case to the trial court.
The Facts and the Case
The public prosecutor of Camarines Sur charged the accused Arnel
Colinares (Arnel) with frustrated homicide before the Regional Trial Court (RTC)
of San Jose, Camarines Sur, in Criminal Case T-2213. 1
Complainant Rufino P. Buena (Rufino) testified that at around 7:00 in the
evening on June 25, 2000, he and Jesus Paulite (Jesus) went out to buy
cigarettes at a nearby store. On their way, Jesus took a leak by the roadside
with Rufino waiting nearby. From nowhere, Arnel sneaked behind and struck
Rufino twice on the head with a huge stone, about 15 1/2 inches in diameter.
Rufino fell unconscious as Jesus fled.
Ananias Jallores (Ananias) testified that he was walking home when he
saw Rufino lying by the roadside. Ananias tried to help but someone struck him
with something hard on the right temple, knocking him out. He later learned that
Arnel had hit him.aHICDc
 Paciano Alano (Paciano) testified that he saw the whole incident since
he happened to be smoking outside his house. He sought the help of
a barangay tanod and they brought Rufino to the hospital.
Dr. Albert Belleza issued a Medico-Legal Certificate 2 showing that
Rufino suffered two lacerated wounds on the forehead, along the hairline area.
The doctor testified that these injuries were serious and potentially fatal but
Rufino chose to go home after initial treatment.
The defense presented Arnel and Diomedes Paulite (Diomedes). Arnel
claimed self-defense. He testified that he was on his way home that evening
when he met Rufino, Jesus, and Ananias who were all quite drunk. Arnel asked
Rufino where he supposed the Mayor of Tigaon was but, rather than reply,
Rufino pushed him, causing his fall. Jesus and Ananias then boxed Arnel
several times on the back. Rufino tried to stab Arnel but missed. The latter
picked up a stone and, defending himself, struck Rufino on the head with it.
When Ananias saw this, he charged towards Arnel and tried to stab him with a
gaff. Arnel was able to avoid the attack and hit Ananias with the same stone.
Arnel then fled and hid in his sister's house. On September 4, 2000, he
voluntarily surrendered at the Tigaon Municipal Police Station.
Diomedes testified that he, Rufino, Jesus, and Ananias attended a pre-
wedding party on the night of the incident. His three companions were all drunk.
On his way home, Diomedes saw the three engaged in heated argument with
Arnel.
On July 1, 2005 the RTC rendered judgment, finding Arnel guilty beyond
reasonable doubt of frustrated homicide and sentenced him to suffer
imprisonment from two years and four months of prision correccional, as
minimum, to six years and one day of prision mayor, as maximum. Since the
maximum probationable imprisonment under the law was only up to six years,
Arnel did not qualify for probation.
Arnel appealed to the Court of Appeals (CA), invoking self-defense and,
alternatively, seeking conviction for the lesser crime of attempted homicide with
the consequent reduction of the penalty imposed on him. The CA entirely
affirmed the RTC decision but deleted the award for lost income in the absence
of evidence to support it. 3 Not satisfied, Arnel comes to this Court on petition
for review.TEAICc

In the course of its deliberation on the case, the Court required Arnel and
the Solicitor General to submit their respective positions on whether or not,
assuming Arnel committed only the lesser crime of attempted homicide with its
imposable penalty of imprisonment of four months of arresto mayor, as
minimum, to two years and four months of prision correccional, as maximum,
he could still apply for probation upon remand of the case to the trial court.
 Both complied with Arnel taking the position that he should be entitled to
apply for probation in case the Court metes out a new penalty on him that
makes his offense probationable. The language and spirit of the probation
law warrants such a stand. The Solicitor General, on the other hand, argues
that under the Probation Law no application for probation can be entertained
once the accused has perfected his appeal from the judgment of conviction.
The Issues Presented
The case essentially presents three issues:
1. Whether or not Arnel acted in self-defense when he struck Rufino on the
head with a stone;
2. Assuming he did not act in self-defense, whether or not Arnel is guilty of
frustrated homicide; and
3. Given a finding that Arnel is entitled to conviction for a lower offense and
a reduced probationable penalty, whether or not he may still apply for probation on
remand of the case to the trial court.
The Court's Rulings
One. Arnel claims that Rufino, Jesus, and Ananias attacked him first and
that he merely acted in self-defense when he hit Rufino back with a stone.
When the accused invokes self-defense, he bears the burden of showing
that he was legally justified in killing the victim or inflicting injury to him. The
accused must establish the elements of self-defense by clear and convincing
evidence. When successful, the otherwise felonious deed would be excused,
mainly predicated on the lack of criminal intent of the accused. 4 ADCETI

In homicide, whether consummated, frustrated, or attempted, self-

defense requires (1) that the person whom the offender killed or injured
committed unlawful aggression; (2) that the offender employed means that is
reasonably necessary to prevent or repel the unlawful aggression; and (3) that
the person defending himself did not act with sufficient provocation. 5
If the victim did not commit unlawful aggression against the accused, the
latter has nothing to prevent or repel and the other two requisites of self-defense
would have no basis for being appreciated. Unlawful aggression contemplates
an actual, sudden, and unexpected attack or an imminent danger of such
attack. A mere threatening or intimidating attitude is not enough. The victim
must attack the accused with actual physical force or with a weapon. 6
Here, the lower courts found that Arnel failed to prove the element of
unlawful aggression. He alone testified that Jesus and Ananias rained fist blows
on him and that Rufino and Ananias tried to stab him. No one corroborated
Arnel's testimony that it was Rufino who started it. Arnel's only other witness,
Diomedes, merely testified that he saw those involved having a heated
argument in the middle of the street. Arnel did not submit any medical certificate
to prove his point that he suffered injuries in the hands of Rufino and his
companions. 7
In contrast, the three witnesses — Jesus, Paciano, and Ananias —
testified that Arnel was the aggressor. Although their versions were mottled with
inconsistencies, these do not detract from their core story. The witnesses were
one in what Arnel did and when and how he did it. Compared to Arnel's
testimony, the prosecution's version is more believable and consistent with
reality, hence deserving credence. 8
Two. But given that Arnel, the accused, was indeed the aggressor, would
he be liable for frustrated homicide when the wounds he inflicted on Rufino, his
victim, were not fatal and could not have resulted in death as in fact it did not?
The main element of attempted or frustrated homicide is the accused's
intent to take his victim's life. The prosecution has to prove this clearly and
convincingly to exclude every possible doubt regarding homicidal intent. 9 And
the intent to kill is often inferred from, among other things, the means the
offender used and the nature, location, and number of wounds he inflicted on
his victim. 10
cEaCAH

Here, Arnel struck Rufino on the head with a huge stone. The blow was
so forceful that it knocked Rufino out. Considering the great size of his weapon,
the impact it produced, and the location of the wounds that Arnel inflicted on his
victim, the Court is convinced that he intended to kill him.
The Court is inclined, however, to hold Arnel guilty only of attempted, not
frustrated, homicide. In Palaganas v. People, 11 we ruled that when the
accused intended to kill his victim, as shown by his use of a deadly weapon and
the wounds he inflicted, but the victim did not die because of timely medical
assistance, the crime is frustrated murder or frustrated homicide. If the victim's
wounds are not fatal, the crime is only attempted murder or attempted homicide.
Thus, the prosecution must establish with certainty the nature, extent,
depth, and severity of the victim's wounds. While Dr. Belleza testified that "head
injuries are always very serious," 12 he could not categorically say that Rufino's
wounds in this case were "fatal." Thus:
Q: Doctor, all the injuries in the head are fatal?
A: No, all traumatic injuries are potentially treated.
Q: But in the case of the victim when you treated him the wounds
actually are not fatal on that very day?
 A: I could not say, with the treatment we did, prevent from becoming
fatal. But on that case the patient preferred to go home at that
time.
Q: The findings also indicated in the medical certificate only refers
to the length of the wound not the depth of the wound?
A: When you say lacerated wound, the entire length of the layer of
scalp.
Q: So you could not find out any abrasion?
A: It is different laceration and abrasion so once the skin is broken
up the label of the frontal lo[b]e, we always call it lacerated
wound, but in that kind of wound, we did not measure the
depth. 13ADCTac

Indeed, Rufino had two lacerations on his forehead but there was no
indication that his skull incurred fracture or that he bled internally as a result of the
pounding of his head. The wounds were not so deep, they merely required
suturing, and were estimated to heal in seven or eight days. Dr. Belleza further
testified:
Q: So, in the medical certificate the wounds will not require surgery?
A: Yes, Madam.
Q: The injuries are slight?
A: 7 to 8 days long, what we are looking is not much, we give
antibiotics and antit[e]tanus — the problem the contusion that
occurred in the brain.
xxx xxx xxx
Q: What medical intervention that you undertake?
A: We give antibiotics, Your Honor, antit[e]tanus and suturing the
wounds.
Q: For how many days did he stay in the hospital?
A: Head injury at least be observed within 24 hours, but some of
them would rather go home and then come back.
Q: So the patient did not stay 24 hours in the hospital?
A: No, Your Honor.
Q: Did he come back to you after 24 hours?
A: I am not sure when he came back for follow-up. 14
Taken in its entirety, there is a dearth of medical evidence on record to
support the prosecution's claim that Rufino would have died without timely
medical intervention. Thus, the Court finds Arnel liable only for attempted
homicide and entitled to the mitigating circumstance of voluntary surrender.
Three. Ordinarily, Arnel would no longer be entitled to apply for
probation, he having appealed from the judgment of the RTC convicting him for
frustrated homicide. ESaITA

But, the Court finds Arnel guilty only of the lesser crime of attempted
homicide and holds that the maximum of the penalty imposed on him should be
lowered to imprisonment of four months of arresto mayor, as minimum, to two
years and four months of prision correccional, as maximum. With this new
penalty, it would be but fair to allow him the right to apply for probation upon
remand of the case to the RTC.
Some in the Court disagrees. They contend that probation is a mere
privilege granted by the state only to qualified convicted offenders. Section 4 of
the probation law (PD 968) provides: "That no application for probation shall be
entertained or granted if the defendant has perfected the appeal from the
judgment of conviction." 15 Since Arnel appealed his conviction for frustrated
homicide, he should be deemed permanently disqualified from applying for
probation.
But, firstly, while it is true that probation is a mere privilege, the point is
not that Arnel has the right to such privilege; he certainly does not have. What
he has is the right to apply for that privilege. The Court finds that his maximum
jail term should only be 2 years and 4 months. If the Court allows him to apply
for probation because of the lowered penalty, it is still up to the trial judge to
decide whether or not to grant him the privilege of probation, taking into account
the full circumstances of his case.
Secondly, it is true that under the probation law the accused who appeals
"from the judgment of conviction" is disqualified from availing himself of the
benefits of probation. But, as it happens, two judgments of conviction have been
meted out to Arnel: one, a conviction for frustrated homicide by the regional trial
court, now set aside; and, two, a conviction for attempted homicide by the
Supreme Court.
If the Court chooses to go by the dissenting opinion's hard position, it will
apply the probation law on Arnel based on the trial court's annulled judgment
against him. He will not be entitled to probation because of the severe penalty
that such judgment imposed on him. More, the Supreme Court's judgment of
conviction for a lesser offense and a lighter penalty will also have to bend over
to the trial court's judgment — even if this has been found in error. And, worse,
Arnel will now also be made to pay for the trial court's erroneous judgment with
the forfeiture of his right to apply for probation. Ang kabayo ang nagkasala, ang
hagupit ay sa kalabaw (the horse errs, the carabao gets the whip). Where is
justice there? AEDCHc

The dissenting opinion also expresses apprehension that allowing Arnel

to apply for probation would dilute the ruling of this Court in Francisco v. Court
of Appeals 16 that the probation law requires that an accused must not have
appealed his conviction before he can avail himself of probation. But there is a
huge difference between Francisco and this case.
In Francisco, the Metropolitan Trial Court (MeTC) of Makati found the
accused guilty of grave oral defamation and sentenced him to a prison term of
one year and one day to one year and eight months of prision correccional, a
clearly probationable penalty. Probation was his to ask! Still, he chose to
appeal, seeking an acquittal, hence clearly waiving his right to apply for
probation. When the acquittal did not come, he wanted probation. The Court
would not of course let him. It served him right that he wanted to save his cake
and eat it too. He certainly could not have both appeal and probation.
The Probation Law, said the Court in Francisco, requires that an accused
must not have appealed his conviction before he can avail himself of probation.
This requirement "outlaws the element of speculation on the part of the accused
— to wager on the result of his appeal — that when his conviction is finally
affirmed on appeal, the moment of truth well-nigh at hand, and the service of
his sentence inevitable, he now applies for probation as an 'escape hatch' thus
rendering nugatory the appellate court's affirmance of his conviction." 17
Here, however, Arnel did not appeal from a judgment that would have
allowed him to apply for probation. He did not have a choice between appeal
and probation. He was not in a position to say, "By taking this appeal, I choose
not to apply for probation." The stiff penalty that the trial court imposed on him
denied him that choice. Thus, a ruling that would allow Arnel to now seek
probation under this Court's greatly diminished penalty will not dilute the sound
ruling in Francisco. It remains that those who will appeal from judgments of
conviction, when they have the option to try for probation, forfeit their right to
apply for that privilege.
Besides, in appealing his case, Arnel raised the issue of correctness of
the penalty imposed on him. He claimed that the evidence at best warranted
his conviction only for attempted, not frustrated, homicide, which crime called
for a probationable penalty. In a way, therefore, Arnel sought from the beginning
to bring down the penalty to the level where the law would allow him to apply
for probation.
In a real sense, the Court's finding that Arnel was guilty, not of frustrated
homicide, but only of attempted homicide, is an original conviction that for the
first time imposes on him a probationable penalty. Had the RTC done him right
from the start, it would have found him guilty of the correct offense and imposed
on him the right penalty of two years and four months maximum. This would
have afforded Arnel the right to apply for probation. aTEADI

The Probation Law never intended to deny an accused his right to

probation through no fault of his. The underlying philosophy of probation is one
of liberality towards the accused. Such philosophy is not served by a harsh and
stringent interpretation of the statutory provisions. 18 As Justice Vicente V.
Mendoza said in his dissent in Francisco, the Probation Law must not be
regarded as a mere privilege to be given to the accused only where it clearly
appears he comes within its letter; to do so would be to disregard the teaching
in many cases that the Probation Law should be applied in favor of the accused
not because it is a criminal law but to achieve its beneficent purpose. 19
One of those who dissent from this decision points out that allowing Arnel
to apply for probation after he appealed from the trial court's judgment of
conviction would not be consistent with the provision of Section 2 that
the probation law should be interpreted to "provide an opportunity for the
reformation of a penitent offender." An accused like Arnel who appeals from a
judgment convicting him, it is claimed, shows no penitence.
This may be true if the trial court meted out to Arnel a correct judgment
of conviction. Here, however, it convicted Arnel of the wrong crime, frustrated
homicide, that carried a penalty in excess of 6 years. How can the Court expect
him to feel penitent over a crime, which as the Court now finds, he did not
commit? He only committed attempted homicide with its maximum penalty of 2
years and 4 months.
Ironically, if the Court denies Arnel the right to apply for probation under
the reduced penalty, it would be sending him straight behind bars. It would be
robbing him of the chance to instead undergo reformation as a penitent
offender, defeating the very purpose of the probation law.
At any rate, what is clear is that, had the RTC done what was right and
imposed on Arnel the correct penalty of two years and four months maximum,
he would have had the right to apply for probation. No one could say with
certainty that he would have availed himself of the right had the RTC done right
by him. The idea may not even have crossed his mind precisely since the
penalty he got was not probationable.
The question in this case is ultimately one of fairness. Is it fair to deny
Arnel the right to apply for probation when the new penalty that the Court
imposes on him is, unlike the one erroneously imposed by the trial court, subject
to probation?
WHEREFORE, the Court PARTIALLY GRANTS the
petition, MODIFIES the Decision dated July 31, 2007 of the Court of Appeals in
 CA-G.R. CR 29639, FINDS petitioner Arnel Colinares GUILTY beyond
reasonable doubt of attempted homicide, and SENTENCES him to suffer an
indeterminate penalty from four months of arresto mayor, as minimum, to two
years and four months of prision correccional, as maximum, and to pay Rufino
P. Buena the amount of P20,000.00 as moral damages, without prejudice to
petitioner applying for probation within 15 days from notice that the record of
the case has been remanded for execution to the Regional Trial Court of San
Jose, Camarines Sur, in Criminal Case T-2213. HSEcTC

SO ORDERED.
Corona, C.J., Carpio, Velasco, Jr., Leonardo-de Castro, Del Castillo, Perez,
Mendoza and Reyes, JJ., concur.
Brion and Bersamin, JJ., join Justice Peralta's concurring and dissenting
opinion.
Peralta, J., see concurring and dissenting opinion.
Villarama, Jr., J., see concurring and dissenting opinion.
Sereno, J., I join Justice Peralta and Villarama.
Perlas-Bernabe, J., I join Justice Villarama.
(Colinares v. People, G.R. No. 182748, [December 13, 2011], 678 PHIL 482-
|||

512)

THIRD DIVISION

[G.R. No. 139250. August 15, 2000.]

GABRIEL CAPILI, petitioner, vs. COURT OF APPEALS, ET

AL., respondents.

Balon Law Office for petitioner.

The Solicitor General for respondents.

SYNOPSIS

Petitioner Gabriel Capili was convicted of fencing by the trial court. Petitioner
appealed to the Court of Appeals which affirmed the decision of the trial court. He
filed a motion for reconsideration, but it was denied. Hence, the present appeal.
Petitioner maintained that the basis of the penalty for fencing is the value of the
stolen items and since the prosecution failed to prove the value of the stolen goods,
his guilt had not been proved beyond reasonable doubt. cCSEaA

The Supreme Court affirmed petitioner's conviction. All the elements of the
crime are present in the case at bar. The owner of the stolen items testified that
several pieces of jewelry, watches and money were stolen from them by their
houseboy. The owner's testimony corroborated by the houseboy, who admitted
that he stole the jewelry and that after stealing the jewelry, he delivered them to
the petitioner with the information that the jewelry was stolen and for the purpose
of selling the same. He identified petitioner in court as the person to whom he
delivered the stolen jewelry. He also established the fact that the petitioner agreed
to pay fifty thousand (P50,000.00) pesos for the stolen jewelry which clearly
manifested his intent to gain on the part of the petitioner. The Court also rejected
petitioner's claim that the prosecution failed to prove the value of the stolen items.
Although the owner's testimony is hearsay and is inadmissible for purposes of
determining the value of the stolen items inasmuch as her testimony was not based
on her own personal knowledge but on the appraisals made by jewelers and what
her mother told her, the houseboy's testimony remains unrebutted. He was able to
establish the fact that he sold the stolen items to petitioner for P50,000.00 and in
the absence of any evidence to the contrary, said amount is presumed to be the
value thereof as it is the only value established by the prosecution.

SYLLABUS

1. CRIMINAL LAW; ANTI-FENCING LAW; FENCING; DEFINITION;

ELEMENTS OF THE CRIME. — Fencing is the act of any person who, with intent
to gain for himself or for another, shall buy, receive, possess, keep, acquire,
conceal, sell or dispose of, or shall buy and sell, or in any other manner deal in any
article, item, object or anything of value which he knows, or should be known to
him, to have been derived from the proceeds of the crime of robbery or theft. The
essential elements of the crime of fencing are: "1. A crime of robbery or theft has
been committed; 2. The accused, who is not a principal or an accomplice in the
commission of the crime of robbery or theft, buys, receives, possesses, keeps,
acquires, conceals, sells or disposes, or buys and sells, or in any manner deals in
any article, item, object or anything of value, which has been derived from the
proceeds of the said crime; 3. The accused knows or should have known that the
said article, item, object or anything of value has been derived from the proceeds
of the crime of robbery or theft; and 4. There is on the part of the accused, intent
to gain for himself or for another."
2. ID.; ID.; ID.; ID.; PRESENT IN CASE AT BAR. — All the elements of
fencing are present in the case at bench. The first element or the fact of theft was
proved by prosecution witness, Christine Diokno (DIOKNO) who testified that
several pieces of jewelry, watches and money were stolen from her mother's
bedroom. She reported the theft to the police who after conducting an
investigation, concluded that her houseboy, Michael Manzo (MANZO), committed
the offense. In court, DIOKNO identified some of the recovered stolen items
consisting of a set of pearl earrings with two small diamonds (Exhibit "A"), a gold
chain with pendant (Exhibit "B") and old United States dollar coins (Exhibit "C").
DI0KNO's testimony is corroborated by MANZO, who admitted that he stole the
jewelry from DIOKNO. And that after stealing the jewelry, he delivered them to the
petitioner, GABRIEL with the information that the jewelry was stolen and for the
purpose of selling the same. He identified GABRIEL in court as the person to whom
he delivered the stolen jewelry. MANZO testified that GABRIEL was not a
participant in the theft of the jewelry and that he told GABRIEL that the jewelry was
stolen. He also established the fact that the petitioner agreed to pay fifty thousand
(P50,000.00) pesos for the stolen jewelry which clearly manifests intent to gain on
the part of the petitioner. Consequently, MANZO's testimony proves the second,
third and fourth elements of the crime of fencing. At any rate, the law does not
require proof of purchase of the stolen articles by the accused as mere possession
thereof is enough to give rise to a presumption of fencing. GABRIEL, who was in
possession of at least two of the stolen items, has not rebutted this
presumption. DSATCI

3. ID.; ID.; ID.; ID.; PRICE OF THE STOLEN ITEMS AS TESTIFIED TO BY

THE PERSON WHO STOLE SAID ITEMS PRESUMED TO BE THE VALUE
THEREOF IN THE ABSENCE OF ANY EVIDENCE TO THE CONTRARY; CASE
AT BAR. — We also disagree with the petitioner that the prosecution failed to prove
the value of the stolen items. Although DIOKNO's testimony is hearsay and is
inadmissible for purposes of determining the value of the stolen items inasmuch
as her testimony was not based on her own personal knowledge but on the
appraisals made by jewelers and what her mother told her, MANZO's testimony
remains unrebutted. MANZO established that he sold the stolen items to GABRIEL
for P50,000.00 and in the absence of any evidence to the contrary, said amount is
presumed to be the value thereof as it is the only value established by the
prosecution. Besides, the valuation of the stolen items made by the trial court is a
factual issue and factual findings of the trial court especially when affirmed by the
Court of Appeals are entitled to great weight and generally should not be disturbed
on appeal.

DECISION

GONZAGA-REYES, J : p
 This Petition for Review on Certiorari seeks the reversal of the Decision of
the Court of Appeals 1 in CA G.R. CR No. 19336 entitled "People of the Philippines
vs. Gabriel Capili, et. al." affirming the Decision of the Regional Trial Court 2 of the
National Capital Judicial Region, Branch 34, finding Gabriel Capili guilty beyond
reasonable doubt of violation of Presidential Decree 1612.
Gabriel Capili y Recto (GABRIEL) together with his wife Ferma Capili y Inot
were charged with violation of Presidential Decree 1612, otherwise known as
the Anti-Fencing Law, in an information that reads:
"That on or about November 5, 1993, in the City of Manila,
Philippines, the said accused, conspiring and confederating together and
mutually helping each other. With intent to gain for themselves or for
another, did then and there willfully and knowingly receive, possess, keep,
acquire and sell or dispose of the following, to wit:
Assorted pieces of jewelry
Several pieces of old coins (U.S. dollar)
all valued at P3,000,000.00, which they knew or should have
known to have been derived from the proceeds of a (sic) crime of theft.
Contrary to law." 3
On December 3, 1993, both accused entered a plea of not guilty to the
offense charged with the assistance of counsel. 4 Thereafter, trial ensued.
The trial court summarized the testimonies of the witnesses as follows:
"xxx xxx xxx
Christine Diokno testified that at 4:00 P.M. on November 4, 1993,
when she went home from her office, she discovered that some of her
(sic) items at (sic) her closet and the jewelries (sic) and money at (sic) her
mother's room were taken. Upon call, two Makati police responded and
surveyed the room where the robbery took place. The police officer took
her statement (Exhs. "F", "F-1" and "F-2") and then investigated the theft
case. Police prepared the police report and concluded that Michael
Manzo, her former houseboy, committed the offense so a case against
Manzo was filed. She described all the properties that were taken as those
reflected in the police report because according to her she gave the police
a list of the items and is part of her statement (tsn, p. 11, May 11, 1994).
Allegedly the value is about 3 Million pesos, some were of 20 years and
some were of 30 years vintage, acquired by her parents since their
wedding in 1945. Some from abroad, States or Hongkong acquired during
trips.
On November 27, 1993, Quiapo sub-station informed her that
Michael Manzo was there. She talked to Michael Manzo who admitted the
commission of the stealing and that he sold the items to Gabriel Capili and
his wife for P50,000.00. Likewise Michael Manzo admitted that on two
occasions Gabriel Capili returned some of the items. The first was before
he went to Isabela. That Capili returned to him (Manzo) the memorabilia
taken from her room consisting of (sic) school ring, bracelets, key chain
and some custom jewelries (sic) and some other items. That three days
before the apprehension Gabriel returned the Raymond Wiel watch and
two cast rings with diamonds. The first ring is valued at P3,000.00 the
second watch was (sic) cost P20,000.00 to P60,000.00 and the two cast
rings about P80,000.00. Then Manzo informed her that he sold those
items returned to other buyers, near Claro M. Recto, who paid P1,500.00
and P1,000.00 for the ring which police officer (sic) failed to recover
because the stand was no longer there. She was shown by the police
officer the items recovered from Gabriel Capili and his wife which she
identified as her property. Shown with Exhs. "A", "B", "C", she said those
are her properties and that the coins (sic) were acquired during the trips
to the States. She kept John F. Kennedy dollar coins contained in a small
box. She further relayed that the coins, Exh. "A" came from a brooch
owned by her mother. The chain with medal of our Lady was bought by
her mother and was given to her together with other belongings.
That before the discovery of the incident her mother had the list of
all the items by counting them physically because her mother used to
check the jewelry every week in her presence. That all is worth three (3)
Million Pesos because the jewelries (sic) were sometimes brought to a
jeweler for a change or for removal of stones or replacement that is why
she considered that all the jewelries (sic) were appraised. She does not
know, however, what exactly were brought by her mother. That she was
present during the last inventory of the items and the land titles by her
mother, presenting the alleged inventory on August 1, 1993 (Exh. "S"),
after her father died on July 15, 1993. While her mother was checking
them, she was in the room writing the description of the jewelries (sic), the
cost and date when bought. That the corresponding value stated came
from her mother kept inside the vault.
That on November 2, 1993, she took out all the items because
November 9 was her mother's birthday and would like to select the items
she and her mother were going to wear for the occasion then check the
jewelries (sic) against the prepared list. The list included the items lost but
did not include the box of memorabilia which was taken from her room.
She claimed that the records including the receipts from where the list was
taken were lost together with the jewelries (sic) that were taken.
xxx xxx xxx
To support the allegation in the Information Michael Manzo testified
that after he asked his friend Emilio Benitez where he can sell his jewelries
(sic) he was brought to Boy Recto's (accused) house at 1260 Carola St.,
Sampaloc, Manila, to whom he gave one bag of jewelries (sic) with the
information that he stole them while he was a house boy. Recto agreed to
pay him P50,000.00 (p. 3, tsn, March 3, 1994). He left and went back after
a week or on November 5, as he needed the money. He was paid
P1,500.00. He left again and went back after two weeks and was paid
again P6,000.00. He left again but in his return he was not paid anymore.
When he visited his friend Emilio Benitez at the precinct, having
been charged with vagrancy, he was caught by the police asking him
where he brought the jewelries (sic), so he pointed to Boy Recto, who was
picked-up and brought to the station and investigated. During the frisking
and searching at the station, police officers found pearls and old coins
from Gabriel Capili. The following day, Mrs. Ferma Capili was investigated
at sub-station 3, Quiapo, WPD. cIDHSC

He identified the pearl earring with copper (sic) with diamond (Exh.
"A"). He likewise identified the old coin 4 pieces of dollars marked as Exhs.
"B-1", "B-2", "B-3" and "B-4"; "B-1", "B-2" dimes, "B-3" and "B-4" quarter
cents; pendant with inscription Boy Recto, Exh. "C". He admitted that the
statement marked as Exh. "D" and sub-markings is his.
Describing the contents of the bag, he said that there were more or
less 20 pieces of rings, some with pearls and some with diamonds and
birthstones; more or less 20 pairs of earrings, diamond with pearls; more
or less 10 pieces of necklaces of plain gold with pendant with the replica
of God and cast with diamond. There were Quartz watches; 3 pieces
Bulova watches; 5 pieces of Seiko watches, Raymond Wiel. That per
complainant's information, all of them costs (sic) 3 Million Pesos which he
merely gave to the accused without counting them. He however, claims
that they will cost only one to two million pesos. Despite which value, he
entrusted them to Boy Recto without counting the pieces.
Defense adopted Exhibit "B" as Exhibit "1" and sub-markings,
Exhibit "D" as their Exhibit "2" and "2-a".
That during the investigation, when he was given another lawyer,
he stated that he told the accused to sell the jewelries (sic) he stole. (p. 6,
tsn, March 16, 1994)
That witness explained that only the fancy ones were returned to
him.
That three days after he left the jewelries (sic) to (sic) Recto, they
had drinking session somewhere at Recto, on which occasion, he did not
ask for the jewelries (sic).
That the P1,500.00 was given to him near the bus terminal at
Sampaloc near UST and when the fancies (sic) were returned, which he
came to know as such because he had it appraised in a pawnshop when
they arrived from Roxas, Isabela. When the jewelries (sic) were returned
contained in the bag, he accepted, opened (sic) for a couple of minutes
without counting. That Emilio Benitez glanced on (sic) them because the
bus was about leave. Recto gave the instruction that he can come back
within two weeks because Boy Recto will pay.
The witness admitted that he is facing a charge of Qualified Theft
in Makati pending before a court where he posted his bail. That he is
testifying before this Court out of his own volition. He explained that they
went to Isabela per instruction of Gabriel Capili that they should lie low
because the police were hunting for them and that Emilio Benitez is from
Roxas, Isabela.
After more or less two weeks when (sic) they arrived from Isabela,
he was requested by Boy Recto (Gabriel Capili) to sign a blank document
somewhere at Espana (Document Exh. "3" to "3-A"). He was not,
however, forced. That upon arrival from Isabela, they went to the house
of the accused then proceeded to wait at a hotel in Sta. Cruz. After three
hours of waiting, the accused arrived and gave him P6,000.00 in the
presence of Emilio Benitez without receipt. He declared that he himself is
not sure whether all the jewelries (sic) inside the bag are (sic) genuine or
not.
Having admitted to the police that he is Michael Manzo, he was
asked where he brought the jewelries (sic) so he pointed to Boy Recto.
He admitted to have signed a blank document, Exhibit "4" and "3", his
signature, Exh. "4-1" and Exh. "3-A", but do (sic) not know where the
originals were, but later said that the originals are in the hands of the police
officers.
SPO3 Ernesto Ramirez testified that as police officer of Station 3,
on November 27, 1993 he investigated Michael Manzo who was accused
of Qualified Theft at Makati and who admitted to him having committed
said offense and pointed to the house of Gabriel Capili at Sampaloc,
Manila where he sold the jewelries (sic). Thereafter, he and his
companions SPO2 Reyes, SPO3 Salalia and SPO3 Fuentes with Michael
Manzo went to the place and saw the wife of Gabriel Capili wearing the
pair of earrings, one of the jewelries (sic) stolen. They were allowed by
Gabriel Capili to get (sic) inside the residence where Gabriel Capili
showed him the signed document of Michael Manzo, Exh. "4" and said he
returned the jewelries (sic). It was however, denied by Manzo although he
admitted the signature. Gabriel Capili went with them to the police precinct
where he (Gabriel Capili) was referred to the investigator and found (sic)
from his pockets 4 pieces of coins. Allegedly while the wife was then being
investigated, Manzo pointed to the earrings worn by the (sic) wife as part
of those stolen properties. The same was taken by the investigator. He
pointed to both accused inside the courtroom.
SPO1 Eduardo San Diego also from Station 3, Quiapo, Manila,
investigator, investigated the case of Qualified Theft that happened at the
house of Christine Diokno. Both accused were positively identified by
Michael Manzo so he took the latter's statement. That during his
investigation he recovered a necklace with pendant, US dollar coins with
different denominations and one pair of earrings (Exh. "A", "B" and "C").
In their investigation they tried to recover the other items but failed
because the establishment of the other buyer pointed to them by Michael
Manzo was no longer existing. He prepared the booking sheet and arrest
report Exhs. "D" and "E" and sub-markings.
xxx xxx xxx
Gabriel Capili denied any knowledge about the charge against him
and declared that what Michael Manzo stated in court that he agreed to
pay P50,000.00 but paid only P1,800.00 is not true. He was at home on
November 10, 1993 selling junk foods (sic) when he was called by Emil,
companion of Michael Manzo, through the phone which number he gave
to Emil when the latter bought something on credit from him a week before
that date. Emil asked him if he would like to buy jewelry to whom he
relayed if he will see the jewelry. Emil arrived at 2:00 o'clock P.M. together
with Michael Manzo, the first time he saw the latter and showed him two
(2) pieces of jewelry, one birthstone and an old coin with a price of
P2,000.00. He inquired from (sic) where the jewelries (sic) came from and
was answered by Michael Manzo that it came from and (sic) being sold
by his mother. He declined because he cannot pay for it. Michael Manzo
handed to Emil something wrapped of which he was asked to appraise.
Michael Manzo asked him if he knew somebody who can buy. He said he
has but hard to see because he seldom see the man already but was
invited to see the person at Recto. After boarding the taxi they did not
proceed immediately to the place. Michael Manzo ordered the taxi cab to
go back to Sta. Mesa Love Hotel where he was told to wait. Michael
Manzo went up the hotel while Emil went towards Aurora Boulevard
walking carrying some items but did not know what happened. After one
hour of waiting at the taxicab and worried about the taxi fare, he went
inside the hotel and after inquiring from the counter where his companion
was, Michael Manzo went down with two women companions. Fifteen
minutes after the two women left, Emil arrived and said he went to Cubao
selling the jewelries (sic). Thereafter, they went to Recto at (sic) a
business establishment near the Galaxy Theater. He was offered to drink
from almost dark until dawn asking him if he had already find (sic) his
friend buyer. They parted ways and went home.
On November 15, Manzo and Emil called him up again asking if it
was possible to see him which he positively answered. He went to UST
somewhere near Mambusco station where he saw Emil with Michael
Manzo about 5 meters from Emil standing talking to someone. He asked
Emil if he was able to sell the jewelries (sic) and was answered "not yet".
Emil was borrowing P700.00 but he has no such amount, so Emil gave
him the jewelries (sic) formerly offered to him, the birthstone and watch
allegedly as a gift from Michael Manzo. Emil informed him that he and
Michael Manzo together with two others were going to Isabela so he gave
the P700.00. After they (Emil and his friend) boarded the bus he went
home.
On November 21, he was fetched by Emil, brought to a place near
the UST along Dapitan Street where he found Michael Manzo retrieving
the gift given to him. Because of Manzo's insistence, he returned them but
asked Manzo to sign Exh. "3". They failed to return his P700.00 so he
asked Manzo to sign another documents (sic), Exhs. "4" and "4-A", the
original of which was given to the policeman and which was not returned
to him.
After several days Pat. Ramirez arrived informing him that Michael
Manzo sold him jewelries (sic). Invited (sic) he went to the police at the
Hidalgo sub-station 3. Michael Manzo was not immediately investigated
but Michael Manzo and Emil were incarcerated. After fifteen (15) minutes
from the second floor he was brought to the ground floor inside the cell
and detained for several days. He alleged that on the same day he was
brought in a room at the second floor where he was mauled by Pat.
Ramirez (sic) not convinced with what he said about the paper (Exh. "4"),
he gave them then brought back to the cell. He told the police that the
jewelries (sic) they are looking for are in the possession of Michael Manzo.
He further claimed that Michael Manzo talked to a certain Go and pointed
to some other buyers who were brought to the precinct. He, however, did
not know if they were released. On November 27 when his wife visited
him at 7:00 P.M. she was likewise incarcerated because Michael Manzo
pointed to the earrings of his wife.
He further declared that prior to his wife's arrival, policeman and
Michael planned that when his wife arrived, Michael will point to her
earrings, allegedly because Emil gave P500.00 to the police officer while
planning to include his wife. His wife was then brought to the second floor
but did not know what happened, thereafter was incarcerated.
He testified that the earrings of his wife was given by her brother
and that the old coin, Exh. "B" is his acquired when he helped, per order
of Pat. Nick Golahan, in carrying dead body (sic) when MV Nucnucan sank
in Cebu where the son of one he carried gave him coin. The other coin
belongs to him which he picked up in Cebu. That the necklace with print
Boy Recto on the pendant belongs to him and which was taken at the
precinct from the dancer to whom he gave it. Further stating that the same
came from Pat. Alex Aguirre when he was still single.
That upon inquest, the Fiscal told the police that they should be
released but were not and (sic) brought back to the cell. The following
morning they were brought to the City Hall. There again, the Fiscal
ordered that they be released but were not and (sic) brought back to the
cell once more. On the third time when he was brought to the Fiscal, the
latter allegedly told him that San Diego altered the testimony that is why
they will be incarcerated.
He denied that Manzo signed Exh. "3" without any writing and
pointed to the typewritten statement therein as his relaying that the same
was thru Michael's suggestion at the time when they were already
quarreling while accusing Manzo to have stolen the properties subject
matter of this case and even questioned that there is something wrongly
written, the giving as a gift.
That although they did not know the accused Michael Manzo and
did not know of any reason why he pointed to him and his wife as buyers
of the jewelries (sic) worth 3 Million Pesos, he believed that it was because
of the quarrel when he started accusing Manzo of stealing of which he
was being blamed.
He now claims that the he came to know Emilio Benitez only on
November 5, the same time he came to know Michael. (tsn, p. 22, Aug. 8,
1994), hence, there is no reason why Benitez will approach him selling
the property. There is no quarrel with the police officers and so he has no
knowledge why these people would like to implicate him and his wife. He
likewise did not know of any reason why the police officer stated in their
affidavit of arrest that the items "US Dollars" were recovered from him at
the time of the investigation. He admitted that only one of the coins
belongs to him, picked-up from Cebu (Exh. "B-4") and his two (2) LRT
coins are still missing so with P20.00 and two more Abraham Lincoln
coins. Although he claimed that San Diego did not release them after the
Fiscal's order he did not file any action against San Diego. That on
December 1, 1993, the Prosecutor ordered the police to release them and
was present asking the Fiscal if he can be allowed to go home but since
they did not have any document, the Fiscal said the policemen will take
care of them. They did not execute any statement because according to
him he was not given any chance.
SPO1 Beinvenido Inot testified that he is a member of the National
Police Force of Precinct 1, Olongapo City and that the accused Ferma
Capili, wife of Gabriel, is his sister. He was asked by his sister to testify
about the pair of earring (sic) that he gave Ferma on June 24, 1990, a U.
S. Fancy jewel which was given by her sister from abroad. It has
brillantitos which is the same as a base of the glass. The same was
confiscated from Ferma by the police.
The last time he saw the pair of earring was on the date his sister
celebrated her birthday. Showing all the exhibits of the prosecution to the
witness, at first he answered "There are no brillantitos pair of earrings,
sir." And later witness answered: "Ay ito pala." (holding the pair of earrings
marked as Exh. "A-1", tsn p. 5, Oct. 14, 1994). He later claimed that the
pair of earrings is actually for his wife sent by her sister abroad to
Olongapo. He cannot remember having seen Ferma Capili on December
 1993 to September 9, 1994, they saw each other two times and that they
talked about those jewelries (sic) thru the phone at that time when the
accused was apprehended and incarcerated. However, despite the
information of Ferma Capili that she was apprehended because of the pair
of earrings he did not do anything because allegedly he was too busy and
they have operation. He admitted that this is the first time he declared that
the earrings came from him without executing any written statement.
(Defense marked Exh. "A-1" pair of earring (sic) as their Exh. "8")
(Decision, pp. 1-15; Rollo, pp. 31-45)." 5
On August 17, 1995, the trial court rendered its decision acquitting Ferma
Capili but finding the accused, Gabriel Capili, guilty beyond reasonable doubt of
the crime charged the dispositive portion of the decision reads:
"WHEREFORE, finding the prosecution's evidence to be sufficient
to support a conviction beyond moral certainty, for violation of P.D.
1612 in relation to Sec. 3 par. A of the same law which required that the
penalty to be imposed shall be in the maximum period if the value of the
property is more than P22,000.00, adding one (1) year for its additional
P10,000.00, the total penalty of which shall not exceed twenty (20) years,
further considering that the consideration of the purchase is P50,000.00,
accused Gabriel Capili is hereby found guilty beyond reasonable doubt for
violation of said law. Without any mitigating or aggravating circumstances
attendant to its commission, but granting the accused with the benefit of
the indeterminate sentence law, he is hereby sentenced to suffer eight (8)
years and one (1) day to ten (10) years of prision mayor medium and to
suffer the additional penalty of three years (one for every P10,000.00) and
to further suffer the accessory penalty thereof. ASEcHI

The accused shall be credited with the full extent of his preventive
imprisonment in accordance with Art. 29 of the Revised Penal Code.
Since the claim of P3 Million has not been sufficiently proven but
the agreed price between the seller and herein accused is only
P50,000.00, the accused is hereby directed to indemnify the complainant
Christine Diokno the sum of P50,000.00, less the value of the jewelries
(sic) presented in Court, Exhibits "A" "B" and "C" and its sub-markings, to
be returned to the owner upon proper receipt and photograph.
The bond posted by the accused for his provisional liberty is hereby
cancelled.
The body of the accused is hereby committed to the Director of the
Bureau of Corrections, National Penitentiary, Muntinlupa, Metro Manila,
through the City Warden of Manila.
Considering that there is no evidence to show complicity and/or
that Ferma Capili conspired and confederated with her husband Gabriel
 Capili, she is hereby acquitted from the offense charged in the
Information.
The bond posted by the accused for her provisional liberty is
hereby cancelled.
SO ORDERED." 6
GABRIEL appealed to the Court of Appeals which affirmed the decision of
the RTC the dispositive portion of its decision reads:
"WHEREFORE, the decision of the trial court dated August 17,
1995 convicting the appellant for violation of P.D. 1612 is hereby
AFFIRMED in toto.
SO ORDERED." 7
Motion for reconsideration was denied, 8 hence this appeal where the
accused assigns the following error:
"THE COURT OF APPEALS IN AFFIRMING THE DECISION OF THE
TRIAL COURT ERRED IN NOT REMANDING THE CASE TO THE
COURT A QUO FOR FURTHER PROCEEDINGS DESPITE OF (SIC)
THE FAVORABLE RECOMMENDATION OF THE OFFICE OF THE
SOLICITOR GENERAL CONSIDERING THAT THE ACTUAL VALUE OF
THE FENCED ARTICLES WERE NOT CORRECTLY ESTABLISHED BY
THE PROSECUTION." 9
The petitioner maintains that even for the sake of argument that the
prosecution has established that the petitioner committed the crime of fencing
(violation of P.D. 1612) beyond reasonable doubt, there is no legal basis for him
to suffer the entire penalty imposed by the trial court. Petitioner claims that the
Office of the Solicitor General, in its appellee's brief filed with the Court of Appeals,
agrees that basis of the penalty for the offense of fencing is the value of the
property actually involved and not the agreed selling price of the stolen item. The
petitioner also maintains that since the prosecution failed to prove the value of the
stolen goods, the guilt of the petitioner has not been proved beyond reasonable
doubt. The petitioner therefore prays that the decision of the Court of Appeals be
reversed and a new one be issued either acquitting the petitioner or remanding the
case to the court a quo for further proceedings. 10
The respondent through the Office of the Solicitor General (OSG) counters
that on April 25, 1997, it filed a Manifestation/Clarification modifying the
recommendation it made in its appellee's brief to the effect that a remand of the
case would unduly delay the disposition of the case. Therefore, to expedite the
final resolution of the case, the OSG recommended that as an alternative to a
remand that the assessment and findings of the trial court on the value of the
subject articles, which is P50,000.00 be adopted and used instead. 11 It is therefore
the contention of the OSG that there is no merit in the petitioner's claim that the
OSG agreed to the remand of the case for further reception of evidence to
determine the value of the stolen goods inasmuch as this would be prejudicial to
the rights of the petitioner. The OSG also opines that the petitioner is not entitled
to an acquittal since the value of the stolen property is not determinative of the guilt
of the accused and is not an element of the crime but is only determinative of the
penalty therefor.
The petition is partly meritorious.
Fencing is the act of any person who, with intent to gain for himself or for
another, shall buy receive, possess, keep, acquire, conceal, sell or dispose of, or
shall buy and sell, or in any other manner deal in any article, item, object or
anything of value which he knows, or should be known to him, to have been derived
from the proceeds of the crime of robbery or theft. 12 The essential elements of the
crime of fencing are:
"1. A crime of robbery or theft has been committed;
2. The accused, who is not a principal or an accomplice in the commission
of the crime of robbery or theft, buys, receives, possesses, keeps,
acquires, conceals, sells or disposes, or buys and sells, or in any
manner deals in any article, item, object or anything of value, which
has been derived from the proceeds of the said crime;
3. The accused knows or should have known that the said article, item,
object or anything of value has been derived from the proceeds of
the crime of robbery or theft; and
4. There is on the part of the accused, intent to gain for himself or for
another." 13
All these elements are present in the case at bench.
The first element or the fact of theft was proved by prosecution witness,
Christine Diokno (DIOKNO) who testified that several pieces of jewelry, watches
and money were stolen from her mother's bedroom. She reported the theft to the
police who after conducting an investigation, concluded that her houseboy,
Michael Manzo (MANZO), committed the offense. Consequently, a criminal case
was filed against MANZO. In her testimony, DIOKNO stated that the major items
that were taken consisted of two diamond rings each having a diamond solitaire of
three (3) carats each, a pair of diamond earrings each having a diamond solitaire
of two point five (2.5) carats, a diamond cross with twelve (12) half (1/2) carat
diamond, her mother's wedding band, an emerald set consisting of an emerald ring
set with diamonds with a pair of matching earrings, a sapphire set consisting of
two sapphire rings set with diamonds and matching earrings, a South Sea pearl
set consisting of a ring and two pairs of matching earrings also set with diamonds,
three cultured pearl necklaces with matching cultured pearl earrings set with
diamonds, a topaz set consisting of two rings with diamonds and one with rubies
with a set of matching earrings, a cameo set consisting of a ring, matching earrings
and a brooch all set with diamonds and four solid gold watches, a Rolex, Piaget,
Universal Geneve and a Gabriel Peregaux. She alleged that the total value of the
items amounted to approximately three million (P3,000,000.00) pesos. In court,
DIOKNO identified some of the recovered stolen items consisting of a set of pearl
earrings with two small diamonds (Exhibit "A"), a gold chain with pendant (Exhibit
"B") and old United States dollar coins (Exhibit "C"). 14
DIOKNO's testimony is corroborated by MANZO, who admitted that he stole
the jewelry from DIOKNO. And that after stealing the jewelry, he delivered them to
the petitioner, GABRIEL with the information that the jewelry was stolen and for
the purpose of selling the same. He identified GABRIEL in court as the person to
whom he delivered the stolen jewelry. 15 MANZO testified that GABRIEL was not
a participant in the theft of the jewelry and that he told GABRIEL that the jewelry
was stolen. He also established the fact that the petitioner agreed to pay fifty
thousand (P50,000.00) pesos for the stolen jewelry which clearly manifests intent
to gain on the part of the petitioner. Consequently, MANZO's testimony proves the
second, third and fourth elements of the crime of fencing.
At any rate, the law does not require proof of purchase of the stolen articles
by the accused as mere possession thereof is enough to give rise to a presumption
of fencing. 16 GABRIEL, who was in possession of at least two of the stolen items,
has not rebutted this presumption.
We also disagree with the petitioner that the prosecution failed to prove the
value of the stolen items.
Although DIOKNO's testimony is hearsay and is inadmissible for purposes
of determining the value of the stolen items inasmuch as her testimony was not
based on her own personal knowledge but on the appraisals made by jewelers
and what her mother told her, MANZO's testimony remains unrebutted. MANZO
established that he sold the stolen items to GABRIEL for P50,000.00 and in the
absence of any evidence to the contrary, said amount is presumed to be the value
thereof as it is the only value established by the prosecution. Besides, the valuation
of the stolen items made by the trial court is a factual issue and factual findings of
the trial court especially when affirmed by the Court of Appeals are entitled to great
weight and generally should not be disturbed on appeal. 17
We note however that the trial court was mistaken in imposing the penalty. A
person found guilty of fencing property the value of which exceeds P22,000.00 is
punished under Presidential Decree 1612 as follows:
"Sec. 3. Penalties. — Any person guilty of fencing shall be
punished as hereunder indicated: HDTCSI

a) The penalty of prision mayor, if the value of the property

involved is more than 12,000 pesos but not exceeding 22,000
 pesos; if the value of such property exceeds the latter sum, the
penalty provided for in this paragraph 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 cases, the penalty shall be termed reclusion
temporal and the accessory penalty pertaining thereto provided in
the Revised Penal Code shall also be imposed."
Under the Indeterminate Sentence Law, 18 the court shall sentence an
accused to an indeterminate sentence the maximum term of which shall be that
which, in view of the attending circumstances, could be properly imposed and the
minimum of which shall be within the range of the penalty next lower to that
prescribed for the offense; and if the offense is punished by any other law, the
court shall sentence an accused to an indeterminate sentence, the maximum term
of which shall not exceed the maximum fixed by said law and the minimum shall
not be less than the minimum term prescribed by the same. 19
Applying the foregoing, the petitioner should be sentenced to suffer the
penalty of prision mayor maximum. The fact that the value of the fenced items
exceeds P22,000.00 should not, like in cases of estafa, be considered in the initial
determination of the indeterminate penalty. 20 In the absence of mitigating and
aggravating circumstances, this should be imposed in its medium period which
ranges from ten (10) years, eight (8) months and one (1) day to eleven (11) years
and four (4) months. Adding the additional two (2) year sentence, one for each
P10,000.00 in excess of P22,000.00, the maximum of the indeterminate penalty is
anywhere within ten (10) years, eight (8) months and one (1) day of prision
mayor to thirteen (13) years and four (4) months of reclusion temporal. 21 On the
other hand, the minimum of the indeterminate sentence should be anywhere within
the range of the penalty next lower which is prision correccional maximum 22 which
ranges from four (4) years, two (2) months and one (1) day to six (6) years.
WHEREFORE, the petition is hereby DENIED and the decision of the Court
of Appeals finding the petitioner, Gabriel Capili guilty beyond reasonable doubt of
violating Presidential Decree 1612 otherwise known as the Anti-fencing law is
AFFIRMED with the MODIFICATION that the petitioner is hereby sentenced to
suffer an indeterminate penalty of four (4) years, two (2) months and one (1) day
of prision correccional as minimum to thirteen (13) years and four (4) months
of reclusion temporal as maximum.
SO ORDERED.
Melo, Vitug, Panganiban, and Purisima, JJ., concur.
(Capili v. Court of Appeals, G.R. No. 139250, [August 15, 2000], 392 PHIL 577-
|||

596)
 EN BANC

[G.R. No. 102342. July 3, 1992.]

LUZ M. ZALDIVIA, petitioner, vs. HON. ANDRES B. REYES, JR.,

in his capacity as Acting Presiding Judge of the Regional Trial
Court, Fourth Judicial Region, Branch 76, San Mateo, Rizal,
and PEOPLE OF THE PHILIPPINES, respondents.

Hector B. Almeyda for petitioner.

SYLLABUS

1. REMEDIAL LAW; PRESCRIPTION; 1985 RULES ON CRIMINAL

PROCEDURE; PRESCRIPTIVE PERIOD DOES NOT APPLY TO OFFENSES
SUBJECT TO SUMMARY PROCEDURE. — Section 1, Rule 110 of the 1985
Rules on Criminal Procedure meaningfully begins with the phrase, "for offenses
not subject to the rule on summary procedure in special cases," which plainly
signifies that the section does not apply to offenses which are subject to
summary procedure. The phrase "in all cases" appearing in the last paragraph
obviously refers to the cases covered by the Section, that is, those offenses not
governed by the Rule on Summary Procedure. This interpretation conforms to
the canon that words in a statute should be read in relation to and not isolation
from the rest of the measure, to discover the true legislative intent.
2. ID.; ID.; ID.; ID.; SECTION (B) REFERS TO SECTION 32(2) OF BP NO. 129.
— Where paragraph (b) of the section does speak of "offenses falling under the
jurisdiction of the Municipal Trial Courts and Municipal Circuit Trial Courts," the
obvious reference is to Section 32(2) of B.P. No. 129, vesting in such courts:
Exclusive original jurisdiction over all offenses punishable with imprisonment of
not exceeding four years and two months, or a fine of not more than four
thousand pesos, or both such fine and imprisonment, regardless of other
imposable accessory or other penalties, including the civil liability arising from
such offenses or predicated thereon, irrespective of kind, nature, value, or
amount thereof; Provided, however, That in offenses involving damage to
property through criminal negligence they shall have exclusive original
jurisdiction where the imposable fine does not exceed twenty thousand pesos.
These offenses are not covered by the Rule on Summary Procedure.
3. ID.; ID.; RULE ON SUMMARY PROCEDURE; APPLIES TO VIOLATIONS OF
MUNICIPAL OR CITY ORDINANCES. — As it is clearly provided in the Rule on
Summary Procedure that among the offenses it covers are violations of municipal
or city ordinances, it should follow that the charge against the petitioner, which is
for violation of a municipal ordinance of Rodriguez, is governed by that rule and
not Section 1 of Rule 110.
4. ID.; ID.; ID.; PRESCRIPTIVE PERIOD STARTS ONLY WHEN THE CASE IS
ACTUALLY FILED IN COURT. — Under Section 9 of the Rule on Summary
Procedure, "the complaint or information shall be filed directly in court without
need of a prior preliminary examination or preliminary investigation." Both parties
agree that this provision does not prevent the prosecutor from conducting a
preliminary investigation if he wants to. However, the case shall be deemed
commenced only when it is filed in court, whether or not the prosecution decides
to conduct a preliminary investigation. This means that the running of the
prescriptive period shall be halted on the date the case is actually filed in court
and not on any date before that.
5. ID.; ID.; ID.; ID.; INTERPRETATION IN CONSONANCE WITH ACT NO. 3326.
— This interpretation is in consonance with Act No. 3326 which says that the
period of prescription shall be suspended "when proceedings are instituted
against the guilty party." The proceedings referred to in Section 2 thereof are
"judicial proceedings," contrary to the submission of the Solicitor General that
they include administrative proceedings. His contention is that we must not
distinguish as the law does not distinguish. As a matter of fact, it does.
6. ID.; ID.; ID.; SPECIAL LAW PREVAILS OVER GENERAL LAW;
PRESCRIPTION IN CRIMINAL CASES IS A SUBSTANTIVE RIGHT. — The
Court feels that if there be a conflict between the Rule on Summary Procedure
and Section 1 of Rule 110 of the Rules on Criminal Procedure, the former should
prevail as the special law. And if there be a conflict between Act No. 3326 and
Rule 110 of the Rules on Criminal Procedure, the latter must again yield because
this Court, in the exercise of its rule-making power, is not allowed to "diminish,
increase or modify substantive rights" under Article VIII, Section 5(5) of the
Constitution. Prescription in criminal cases is a substantive right.
7. ID.; ID.; CRIME PRESCRIBES IF THE PROSECUTOR DELAYS
INTENTIONALLY OR NOT THE INSTITUTION OF NECESSARY JUDICIAL
PROCEEDINGS. — The Court realizes that under the above interpretation, a
crime may prescribe even if the complaint is filed seasonably with the
prosecutor's office if, intentionally or not, he delays the institution of the
necessary judicial proceedings until it is too late. However, that possibility should
not justify a misreading of the applicable rules beyond their obvious intent as
reasonably deduced from their plain language. The remedy is not a distortion of
the meaning of the rules but a rewording thereof to prevent the problem here
sought to be corrected.
 DECISION

CRUZ, J : p

The Court is asked to determine the applicable law specifying the prescriptive
period for violations of municipal ordinances.
The petitioner is charged with quarrying for commercial purposes without a
mayor's permit in violation of Ordinance No. 2, Series of 1988, of the Municipality
of Rodriguez, in the Province of Rizal. LibLex

The offense was allegedly committed on May 11, 1990. 1 The referral-complaint
of the police was received by the Office of the Provincial Prosecutor of Rizal on
May 30, 1990. 2 The corresponding information was filed with the Municipal Trial
Court of Rodriguez on October 2, 1990. 3
The petitioner moved to quash the information on the ground that the crime had
prescribed, but the motion was denied. On appeal to the Regional Trial Court of
Rizal, the denial was sustained by the responded judge. 4
In the present petition for review on certiorari, the petitioner first argues that the
charge against her is governed by the following provisions of the Rule on
Summary Procedure:
SECTION 1. Scope. — This rule shall govern the procedure in the
Metropolitan Trial Courts, the Municipal Trial Courts, and the Municipal
Circuit Trial Court in the following cases:
xxx xxx xxx
B. Criminal Cases:
1. Violations of traffic laws, rules and regulations;
2. Violations of rental law;
3. Violations of municipal or city ordinances; prLL

4. All other criminal cases where the penalty prescribed by law for the
offense charged does not exceed six months imprisonment, or a fine of
one thousand pesos (P1,000.00), or both, irrespective of other
impossible penalties, accessory or otherwise, or of the civil liability
arising therefrom. . . ." (Emphasis supplied.)
xxx xxx xxx
SECTION 9. How commenced. — The prosecution of criminal cases
falling within the scope of this Rule shall be either by complaint or by
information filed directly in court without need of a prior preliminary
examination or preliminary investigation: Provided, however, That in
 Metropolitan Manila and chartered cities, such cases shall be
commenced only by information; Provided, further, That when the
offense cannot be prosecuted de officio, the corresponding complaint
shall be signed and sworn to before the fiscal by the offended party.
She then invokes Act No. 3326, as amended, entitled "An Act to Establish
Periods of Prescription for Violations Penalized by Special Acts and Municipal
Ordinances and to Provide When Prescription Shall Begin to Run," reading as
follows:
SECTION 1. Violations penalized by special acts shall, unless otherwise
provided in such acts, prescribe in accordance with the following rules: .
. . Violations penalized by municipal ordinances shall prescribe after two
months.
SECTION 2. Prescription shall begin to run from the day of the
commission of the violation of the law, and if the same be not known at
the time, from the discovery thereof and the institution of judicial
proceedings for its investigation and punishment.
The prescription shall be interrupted when proceedings are instituted
against the guilty person, and shall begin to run again if the proceedings
are dismissed for reasons not constituting jeopardy.
SECTION 3. For the purposes of this Act, special acts shall be acts
defining and penalizing violations of law not included in the Penal Code."
(Emphasis supplied)
Her conclusion is that as the information was filed way beyond the two-month
statutory period from the date of the alleged commission of the offense, the
charge against her should have been dismissed on the ground of prescription.
For its part, the prosecution contends that the prescriptive period was suspended
upon the filing of the complaint against her with the Office of the Provincial
Prosecutor. Agreeing with the respondent judge, the Solicitor General also
invokes Section 1, Rule 110 of the 1985 Rules on Criminal Procedure, providing
as follows:LexLib

SECTION 1. How Instituted. — For offenses not subject to the rule on

summary procedure in special cases, the institution of criminal action
shall be as follows:
a) For offenses falling under the jurisdiction of the Regional Trial
Court, by filing the complaint with the appropriate officer for the
purpose of conducting the requisite preliminary investigation
therein;
b) For offenses falling under the jurisdiction of the Municipal Trial
Courts and Municipal Circuit Trial Courts, by filing the complaint
directly with the said courts, or a complaint with the fiscal's office.
 However, in Metropolitan Manila and other chartered cities, the
complaint may be filed only with the office of the fiscal.
In all cases, such institution interrupts the period of prescription of the
offense charged. (Emphasis supplied.)
Emphasis is laid on the last paragraph. The respondent maintains that the filing
of the complaint with the Officer of the Provincial Prosecutor comes under the
phrase "such institution" and that the phrase "in all cases" applies to all cases,
without distinction, including those falling under the Rule on Summary Procedure.

The said paragraph, according to the respondent, was an adoption of the

following dictum in Francisco v. Court of Appeals: 5
In view of this diversity of precedents, and in order to provide guidance
for Bench and Bar, this Court has re-examined the question and, after
mature consideration, has arrived at the conclusion that the true doctrine
is, and should be, the one established by the decisions holding that the
filing of the complaint in the Municipal Court, even if it be merely for
purposes of preliminary examination or investigation, should, and does,
interrupt the period of prescription of the criminal responsibility, even if
the court where the complaint or information is filed can not try the case
on its merits. Several reasons buttress this conclusion: first, the text of
Article 91 of the Revised Penal Code, in declaring that the period of
prescription "shall be interrupted by the filing of the complaint or
information" without distinguishing whether the complaint is filed in the
court for preliminary examination or investigation merely, or for action on
the merits. Second, even if the court where the complaint or information
is filed may only proceed to investigate the case, its actuations already
represent the initial step of the proceedings against the offender. Third, it
is unjust to deprive the injured party of the right to obtain vindication on
account of delays that are not under his control. All that the victim of the
offense may do on his part to initiate the prosecution is to file the
requisite complaint.
It is important to note that this decision was promulgated on May 30, 1983, two
months before the promulgation of the Rule on Summary Procedure on August 1,
1983. On the other hand, Section 1 of Rule 110 is new, having been incorporated
therein with the revision of the Rules on Criminal Procedure on January 1, 1985,
except for the last paragraph, which was added on October 1, 1988.
That section meaningfully begins with the phrase, "for offenses not subject to the
rule on summary procedure in special cases," which plainly signifies that the
section does not apply to offenses which are subject to summary procedure. The
phrase "in all cases" appearing in the last paragraph obviously refers to the
cases covered by the Section, that is, those offenses not governed by the Rule
on Summary Procedure. This interpretation conforms to the canon that words in
a statute should be read in relation to and not isolation from the rest of the
measure, to discover the true legislative intent. cdphil

As it is clearly provided in the Rule on Summary Procedure that among the

offenses it covers are violations of municipal or city ordinances, it should follow
that the charge against the petitioner, which is for violation of a municipal
ordinance of Rodriguez, is governed by that rule and not Section 1 of Rule 110.
Where paragraph (b) of the section does speak of "offenses falling under the
jurisdiction of the Municipal Trial Courts and Municipal Circuit Trial Courts," the
obvious reference is to Section 32 (2) of B.P. No. 129, vesting in such courts:
(2) Exclusive original jurisdiction over all offenses punishable with
imprisonment of not exceeding four years and two months, or a fine of
not more than four thousand pesos, or both such fine and imprisonment,
regardless of other imposable accessory or other penalties, including the
civil liability arising from such offenses or predicated thereon,
irrespective of kind, nature, value, or amount thereof; Provided, however,
That in offenses involving damage to property through criminal
negligence they shall have exclusive original jurisdiction where the
imposable fine does not exceed twenty thousand pesos.
These offenses are not covered by the Rules on Summary Procedure.
Under Section 9 of the Rule on Summary Procedure, "the complaint or
information shall be filed directly in court without need of a prior preliminary
examination or preliminary investigation." 6 Both parties agree that this provision
does not prevent the prosecutor from conducting a preliminary investigation if he
wants to. However, the case shall be deemed commenced only when it is filed in
court, whether or not the prosecution decides to conduct a preliminary
investigation. This means that the running of the prescriptive period shall be
halted on the date the case is actual filed in court and not on any date before
that.
This interpretation is in consonance with the afore-quoted Act No. 3326 which
says that the period of prescription shall be suspended "when proceedings are
instituted against the guilty party." The proceedings referred to in Section 2
thereof are "judicial proceedings," contrary to the submission of the Solicitor
General that they include administrative proceedings. His contention is that we
must not distinguish as the law does not distinguish. As a matter of fact, it does.
At any rate, the Court feels that if there be a conflict between the Rule on
Summary Procedure and Section 1 of Rule 110 of the Rules on Criminal
Procedure, the former should prevail as the special law. And if there be a conflict
between Act No. 3326 and Rule 110 of the Rules on Criminal Procedure, the
latter must again yield because this Court, in the exercise of its rule-making
power, is not allowed to "diminish, increase or modify substantive rights"
under Article VIII, Section 5 (5) of the Constitution Prescription in criminal cases
is a substantive right. 7
Going back to the Francisco case, we find it not irrelevant to observe that the
decision would have been conformable to Section 1, Rule 110, as the offense
involved was grave oral defamation punishable under the Revised Penal Code
with arresto mayor in its maximum period to prision correccional in its minimum
period. By contrast, the prosecution in the instant case is for violation of a
municipal ordinance, for which the penalty cannot exceed six months, 8 and is
thus covered by the Rule on Summary Procedure.
The Court realizes that under the above interpretation, a crime may prescribe
even if the complaint is filed seasonably with the prosecutor's office if,
intentionally or not, he delays the institution of the necessary judicial proceedings
until it is too late. However, that possibility should not justify a misreading of the
applicable rules beyond their obvious intent as reasonably deduced from their
plain language. The remedy is not a distortion of the meaning of the rules but a
rewording thereof to prevent the problem here sought to be corrected. LexLib

Our conclusion is that the prescriptive period for the crime imputed to the
petitioner commenced from its alleged commission on May 11, 1990, and ended
two months thereafter, on July 11, 1990, in accordance with Section 1 of Act No.
3326. It was not interrupted by the filing of the complaint with the Office of the
Provincial Prosecutor on May 30, 1990, as this was not a judicial proceeding.
The judicial proceeding that could have interrupted the period was the filing of the
information with the Municipal Trial Court of Rodriguez, but this was done only on
October 2, 1990, after the crime had already prescribed.
WHEREFORE, the petition is GRANTED, and the challenged Order dated
October 2, 1991 is SET ASIDE. Criminal Case No. 90-089 in the Municipal Trial
Court of Rodriguez, Rizal, is hereby DISMISSED on the ground of prescription. It
is so ordered.
Narvasa, C .J ., Gutierrez, Jr., Paras, Feliciano, Padilla, Bidin, Griño-Aquino,
Medialdea, Regalado, Davide, Jr., Romero, Nocon and Bellosillo, JJ ., concur.
Footnotes
(Zaldivia v. Reyes, Jr., G.R. No. 102342, [July 3, 1992], 286 PHIL 375-383)
|||

FIRST DIVISION

[G.R. No. 125066. July 8, 1998.]

 ISABELITA REODICA, petitioner, vs. COURT OF APPEALS, and
PEOPLE OF THE PHILIPPINES, respondent.

Movement of Attorneys for Brotherhood, Integrity & Nationalism, Inc. for

petitioner.
The Solicitor General for respondents.

SYNOPSIS

In the evening of October 17,1987, petitioner Isabelita Reodica was

driving a van along Doña Soledad Avenue, Better Living Subdivision,
Parañaque, Metro Manila hit the car of complainant Norberto Bonsol that
resulted to physical injuries to the complainant and damage to his car amounted
to P8,542.00. Consequently, an information for Reckless Imprudence Resulting
in Damage to Property with Slight Physical Injuries docketed as Criminal Case
No. 33919 was filed against her. After trial, the Regional Trial Court of Makati
convicted the petitioner as charged and was sentenced to suffer imprisonment
of six (6) months of arresto mayor. On Appeal, the Court of Appeals affirmed
the said decision.
Hence, this petition for review.
The court ruled that clearly, if a reckless, imprudent or negligent act
results in two or more grave or less grave felonies, a complex crime is
committed. However, in Lontok v. Gorgonio, this Court declared that where one
of the resulting offenses in criminal negligence constitutes a light felony, there
is no complex crime.
Hence, the trial court erred in considering the following felonies as a
complex crime: the less grave felony of reckless imprudence resulting in
damage to property in the amount of P8,542.00 and the light felony of reckless
imprudence resulting in physical injuries.
Similarly, since offenses punishable by imprisonment of not exceeding 4
years and 2 months were within the jurisdictional ambit of the MeTCs, MTCs
and MCTCs, it follows that those penalized with censure, which is a penalty
lower than arresto menor under the graduated scale in Article 71 of the Revised
Penal Code and with a duration of 1 to 30 days, should also fall within the
jurisdiction of said courts. Thus, reckless imprudence resulting in slight physical
injuries was cognizable by said courts.
As to the reckless imprudence resulting in damage to property in the
amount of P8,542.00, the same was also under the jurisdiction of the MeTCs,
MTCs or MCTCs because the imposable penalty therefor was arresto mayor in
its minimum and medium periods — the duration of which was from 1 month
and 1 day to 4 months.
Criminal Case No. 33919 should, therefore, be dismissed for lack of
jurisdiction on the part of the RTC of Makati.

SYLLABUS

1. CRIMINAL LAW; QUASI-OFFENSES; RECKLESS IMPRUDENCE

RESULTING IN SLIGHT PHYSICAL INJURIES; PROPER PENALTY. — The
penalty for reckless imprudence resulting in slight physical injuries, a light
felony, is arresto menor in its maximum period, with a duration of 21 to 30 days.
If the offense of slight physical injuries is, however, committed deliberately or
with malice, it is penalized with arresto menor under Article 266 of the Revised
Penal Code, with a duration of 1 day to 30 days. Plainly, the penalty then under
Article 266 may be either lower than or equal to the penalty prescribed under
the first paragraph of Article 365. This being the case, the exception in the sixth
paragraph of Article 365 applies. Hence, the proper penalty for reckless
imprudence resulting in slight physical injuries is public censure, this being the
penalty next lower in degree to arresto menor.
2. ID.; ID.; ID.; CLASSIFICATION. — As earlier stated, reckless
imprudence resulting in slight physical injuries is punishable by public censure
only. Article 9, paragraph 3, of the Revised Penal Code defines light felonies as
infractions of law carrying the penalty of arresto menor or a fine not exceeding
P200.00, or both. Since public censure is classified under Article 25 of the Code
as a light penalty, and is considered under the graduated scale provided in
Article 71 of the same Code as a penalty lower than arresto menor it follows
that the offense of reckless imprudence resulting in slight physical injuries is a
light felony.
3. ID.; ID.; RECKLESS IMPRUDENCE RESULTING IN DAMAGE TO
PROPERTY; PROPER PENALTY; CASE AT BAR. — As to reckless
imprudence resulting in damage to property in the amount of P8,542.00, the
third paragraph of Article 365, which provides for the penalty of fine, does not
apply since the reckless imprudence in this case did not result in damage to
property only. What applies is the first paragraph of Article 365, which provides
for arresto mayor in its minimum and medium periods (1 month and 1 day to 4
months) for an act committed through reckless imprudence which, had it been
intentional, would have constituted a less grave felony. Note that if the damage
to the extent of P8,542.00 were caused deliberately, the crime would have been
malicious mischief under Article 329 of the Revised Penal Code, and the
penalty would then be arresto mayor in its medium and maximum periods (2
months and 1 day to 6 months which is higher than that prescribed in the first
paragraph of Article 365). If the penalty under Article 329 were equal to or lower
than that provided for in the first paragraph, then the sixth paragraph of Article
365 would apply, i. e., the penalty next lower in degree, which is arresto
menor in its maximum period to arresto mayor in its minimum period or
imprisonment from 21 days to 2 months. Accordingly, the imposable penalty for
reckless imprudence resulting in damage to property to the extent of P8,542.00
would be arresto mayor in its minimum and medium periods, which could be
anywhere from a minimum of 1 month and 1 day to a maximum of 4 months, at
the discretion of the court, since the fifth paragraph of Article 365 provides that
in the imposition of the penalties therein provided "the courts shall exercise their
sound discretion without regard to the rules prescribed in Article 64."
4. ID., ID.; ID.; CLASSIFICATION. — On the other hand, reckless
imprudence also resulting in damage to property is, as earlier discussed,
penalized with arresto mayor in its minimum and medium periods.
Since arresto mayor is a correctional penalty under Article 25 of the Revised
Penal Code, the quasi offense in question is a less grave felony — not a light
felony as claimed by petitioner.
5. ID.; ID.; WHERE ONE OF THE RESULTING OFFENSES IN
CRIMINAL NEGLIGENCE CONSTITUTES A LIGHT FELONY, THERE IS NO
COMPLEX CRIME. — Clearly, if a reckless, imprudent or negligent act results
in two or more grave or less grave felonies, a complex crime is committed.
However, in Lontok v. Gorgonio this Court declared that where one of the
resulting offenses in criminal negligence constitutes a light felony, there is no
complex crime.
6. REMEDIAL LAW; CRIMINAL PROCEDURE; INFORMATION;
DUPLICITOUS CHARACTER THEREOF, MUST BE RAISED BEFORE
ARRAIGNMENT. — Following Lontok, the conclusion is inescapable here, that
the quasi offense of reckless imprudence resulting in slight physical injuries
should have been charged in a separate information because it is not covered
by Article 48 of the Revised Penal Code. However, petitioner may no longer
question, at this stage, the duplicitous character of the
information, i.e., charging two separate offenses in one information, to wit: (1)
reckless imprudence resulting in damage to property; and (2) reckless
imprudence resulting in slight physical injuries This defect was deemed waived
by her failure to raise it in a motion to quash before she pleaded to the
information. Under Section 3, Rule 120 of the Rules of Court, when two or more
offenses are charged in a single complaint or information and the accused fails
to object to it before trial, the court may convict the accused of as many offenses
as are charged and proved and impose on him the penalty for each of them.
7. ID.; ID.; JURISDICTION; DETERMINING FACTORS. — The
jurisdiction to try a criminal action is to be determined by the law in force at the
time of the institution of the action, unless the statute expressly provides, or is
construed to the effect that it is intended to operate as to actions pending before
its enactment. . . . The criminal jurisdiction of the lower courts was then
determined by the duration of the imprisonment and the amount of fine
prescribed by law for the offense charged.
8. ID.; ID.; ID.; OFFENSES PUNISHABLE BY CENSURE ARE
COGNIZABLE BY MeTCs, MTCs AND MCTCs. — Similarly, since offenses
punishable by imprisonment of not exceeding 4 years and 2 months were within
the jurisdictional ambit of the MeTCs, MTCs and MCTCs, it follows that those
penalized with censure, which is a penalty lower than arresto menor under the
graduated scale in Article 71 of the Revised Penal Code and with a duration of
1 to 30 days, should also fall within the jurisdiction of said courts. Thus, reckless
imprudence resulting in slight physical injuries was cognizable by said courts.
9. ID.; ID.; PRESCRIPTION; THE REVISED PENAL CODE MUST
PREVAIL OVER THE RULES ON SUMMARY PROCEDURE. — It must be
stressed that prescription in criminal cases is a matter of substantive law.
Pursuant to Section 5(5), Article VIII of the Constitution, this Court, in the
exercise of its rule-making power, is not allowed to diminish, increase or modify
substantive rights. Hence, in case of conflict between the Rules on Summary
Procedure promulgated by this Court and the Revised Penal Code, the latter
prevails.
10. ID.; ID.; ID.; ID.; CASE AT BAR. — In the instant case, as the
offenses involved are covered by the Revised Penal Code, Article 91 thereof
and the rulings in Francisco and Cuaresma apply. Thus, the prescriptive period
for the quasi offenses in question was interrupted by the filing of the complaint
with the fiscal's office three days after the vehicular mishap and remained tolled
pending the termination of this case. We cannot, therefore, uphold petitioner's
defense of prescription of the offense charged in the information in this case.

DECISION

DAVIDE, JR., J : p

On the evening of 17 October 1987, petitioner Isabelita Reodica was

driving a van along Doña Soledad Avenue, Better Living Subdivision,
Parañaque, Metro Manila. Allegedly because of her recklessness, her van hit
the car of complainant Norberto Bonsol. As a result, complainant sustained
physical injuries, while the damage to his car amounted to P8,542.00. cdphil
 Three days after the incident, or on 20 October 1987, the complainant
filed an Affidavit of Complaint 1 against petitioner with the Fiscal's Office.
On 13 January 1988, an information 2 was filed before the Regional Trial
Court (RTC) of Makati (docketed as Criminal Case No. 33919) charging
petitioner with "Reckless Imprudence Resulting in Damage to Property with
Slight Physical Injury." The information read:
The undersigned 2nd Asst. Fiscal accuses Isabelita Reodica of the
crime of Reckless Imprudence Resulting in Damage to Property with
Slight Physical Injury as follows:
That on or about the 17th day of October, 1987 in the
Municipality of Parañaque, Metro Manila, Philippines and within the
jurisdiction of this Honorable Court, the abovementioned accused,
Isabelita Velasco Reodica, being then the driver and/or person in
charge of a Tamaraw bearing plate no. NJU-306, did then and
there willfully, unlawfully and feloniously drive, manage and
operate the same in a reckless, careless, negligent and imprudent
manner, without regard to traffic laws, rules and regulations and
without taking the necessary care and precaution to avoid damage
to property and injuries to person, causing by such negligence,
carelessness and imprudence the said vehicle to bump/collide with
a Toyota Corolla bearing plate no. NIM-919 driven and owned by
Norberto Bonsol, thereby causing damage amounting to
P8,542.00, to the damage and prejudice of its owner, in the
aforementioned amount of P8,542.00.
That as further consequence due to the strong impact, said
Norberto Bonsol suffered bodily injuries which required medical
attendance for a period of less that nine (9) days and incapacitated
him from performing his customary labor for the same period of
time.
Upon arraignment, petitioner pleaded not guilty to the charge. Trial then
ensued.
On 31 January 1991, the RTC of Makati, Branch 145, rendered a
decisions 3 convicting petitioner of the "quasi offense of reckless imprudence
resulting in damage to property with slight physical injuries," and sentencing
her:
[t]o suffer imprisonment of six (6) months of arresto mayor, and to pay the
complainant, Norberto Bonsol y Atienza, the sum of Thirteen Thousand
Five Hundred Forty-Two (P13,542), Philippine Currency, without
subsidiary impairment in case of insolvency; and to pay the costs. 4
The trial court justified imposing a 6-month prison term in this wise:
 As a result of the reckless imprudence of the accused, complainant
suffered slight physical injuries (Exhs. D, H and I). In view of the resulting
physical injuries, the penalty to be imposed is not fine, but imprisonment
(Gregorio, Fundamental of Criminal Law Review, Eighth Edition 1988, p.
711). Slight physical injuries thru reckless imprudence is now punished
with penalty of arresto mayor in its maximum period (People v. Aguiles, L-
11302, October 28, 1960, cited in Gregorio's book, p. 718). 5
As to the sum of P13,542.00, this represented the cost of the car repairs
(P8,542.00) and medical expenses (P5,000.00).
Petitioner appealed from the decision to the Court of Appeals, which
docketed the case as CA-G.R. CR No. 14660. After her motions for extension
of time to file her brief were granted, she filed a Motion to Withdraw Appeal for
Probation Purposes, and to Suspend, Ex Abundanti Cautela, Period for Filing
Appellant's Brief. However, respondent Court of Appeals denied this motion
and directed petitioner to file her brief. 6
After passing upon the errors imputed by petitioner to the trial court,
respondent Court of Appeals rendered a decision 7 on 31 January 1996
affirming the appealed decision.
Petitioner subsequently filed a motion for reconsideration 8 raising new
issues, thus:
NOW THAT AN ACQUITTAL SEEMS IMPOSSIBLE, MAY WE REVISIT
THE PENALTY AND MOVE THAT IT BE REVIEWED AND SET ASIDE
SINCE IT IS RESPECTFULLY SUBMITTED TO BE ERROR TO
COMPLEX DAMAGE TO PROPERTY AND SLIGHT PHYSICAL
INJURIES, AS BOTH ARE LIGHT OFFENSES, OVER WHICH THE
RESPONDENT COURT HAD NO JURISDICTION AND EVEN
ASSUMING SUCH JURISDICTION, IT CANNOT IMPOSE A PENALTY
IN EXCESS OF WHAT IS AUTHORIZED BY LAW. 9
REVERSAL OF THE DECISION REMAINS POSSIBLE ON GROUNDS
OF PRESCRIPTION OR LACK OF JURISDICTION. 10
In its Resolution of 24 May 1996, the Court of Appeals denied petitioner's
motion for reconsideration for lack of merit, as well as her supplemental motion
for reconsideration. Hence, the present petition for review on certiorari under
Rule 45 of the Rules of Court premised on the following grounds:
RESPONDENT COURT OF APPEALS' DECISION DATED JANUARY
31, 1996 AND MORE SO ITS RESOLUTION DATED MAY 24, 1996, ARE
CONTRARY TO LAW AND GROSSLY ERRONEOUS IN THAT THEY
IMPOSED A PENALTY IN EXCESS OF WHAT IS AUTHORIZED BY
LAW FOR THE CRIME OF RECKLESS IMPRUDENCE RESULTING IN
SLIGHT PHYSICAL INJURIES, ON THE BASIS OF A CLERICAL
ERROR IN A SECONDARY SOURCE.
 A. IN THE CASE OF PEOPLE V. AGUILAR, 11 THE SAME CASE
WHERE THE COURT A QUO BASED ITS FINDING OF A
PENALTY WHEN IT AFFIRMED THE DECISION OF THE
REGIONAL TRIAL COURT, WHAT WAS STATED IN THE
ORIGINAL TEXT OF SAID CASE IS THAT THE PENALTY
FOR SLIGHT PHYSICAL INJURIES THROUGH
RECKLESS IMPRUDENCE IS ARRESTO MENOR AND
NOT ARRESTO MAYOR. IT IS GRAVE ERROR FOR THE
RESPONDENT COURT TO PUNISH PETITIONER MORE
THAN SHE SHOULD OR COULD BE PUNISHED
BECAUSE OF A CLERICAL ERROR COPIED FROM A
SECONDARY SOURCE.
B. THE RESPONDENT COURT OF APPEALS GRAVELY
ABUSED ITS DISCRETION WHEN IT COMPLEXED THE
CRIME OF RECKLESS IMPRUDENCE RESULTING IN
DAMAGE TO PROPERTY AND SLIGHT PHYSICAL
INJURIES IMPOSING A SINGLE EXCESSIVE PENALTY
IN ITS ELLIPTICAL RESOLUTION OF MAY 24, 1996.
C. THE RESPONDENT COURT OF APPEALS GRAVELY ERRED
WHEN IT AFFIRMED THE TRIAL COURT'S DECISION
NOTWITHSTANDING THE DEFENSE OF
PRESCRIPTION AND LACK OF JURISDICTION.
Anent the first ground, petitioner claims that the courts below misquoted
not only the title, but likewise the ruling of the case cited as authority regarding
the penalty for slight physical injuries through reckless imprudence. Concretely,
the title of the case was not People v. Aguiles, but People v. Aguilar; while the
ruling was that the penalty for such quasi offense was arresto menor —
not arresto mayor.
As regards the second assigned error, petitioner avers that the courts
below should have pronounced that there were two separate light felonies
involved, namely: (1) reckless imprudence with slight physical injuries; and (2)
reckless imprudence with damage to property, instead of considering them a
complex crime. Two light felonies, she insists, "do not . . . rate a single penalty
of arresto mayor or imprisonment of six months," citing Lontok
v. Gorgonio, 12 thus:
Where the single act of imprudence resulted in double less serious
physical injuries, damage to property amounting to P10,000.00 and slight
physical injuries, a chief of police did not err in filing a separate complaint
for the slight physical injuries and another complaint for the lesiones
menos graves and damage to property (Arcaya vs. Teleron, L-37446, May
31, 1974, 57 SCRA 363, 365).
 The case of Angeles vs. Jose, 96 Phil. 151, cited by investigating
fiscal, is different from the instant case because in that case the negligent
act resulted in the offenses of lesiones menos graves and damage to
property which were both less grave felonies and which, therefore,
constituted a complex crime.
In the instant case, following the ruling in the Turla case, the
offense of lesiones leves through reckless imprudence should have been
charged in a separate information.
She then suggests that "at worst, the penalties of two light offenses, both
imposable in their maximum period and computed or added together, only sum
up to 60 days imprisonment and not six months as imposed by the lower
courts."
On the third assigned error, petitioner insists that the offense of slight
physical injuries through reckless imprudence, being punishable only by arresto
menor, is a light offense; as such, it prescribes in two months. Here, since the
information was filed only on 13 January 1988, or almost three months from the
date the vehicular collision occurred, the offense had already prescribed, again
citing Lontok, thus:
In the instant case, following the ruling in the Turla case, the
offense of lesions leves through reckless imprudence should have been
charged in a separate information. And since, as a light offense, it
prescribes in two months, Lontok's criminal liability therefor was already
extinguished (Arts. 89[5], 90 and 91, Revised Penal Code in relation to
sec. 2[e] and [f], Rule 117, Rules of Court). The trial court committed a
grave abuse of discretion in not sustaining Lontok's motion to quash that
part of the information charging him with that light offense.
Petitioner further claims that the information was filed with the wrong court,
since Regional Trial Courts do not deal with arresto menor cases. She submits
that damage to property and slight physical injuries are light felonies and thus
covered by the rules on summary procedure; therefore, only the filing with the
proper Metropolitan Trial Court could have tolled the statute of limitations, this
time invoking Zaldivia v. Reyes. 13
In its Comment filed on behalf of public respondents, the Office of the
Solicitor General (OSG) agrees with petitioner that the penalty should have
been arresto menor in its maximum period, instead of arresto mayor, pursuant
to Article 365 of the Revised Penal Code.
As to the second assigned error, the OSG contends that conformably
with Buerano v. Court of Appeals, 14 which frowns upon splitting of crimes and
prosecution, it was proper for the trial court to "complex" reckless imprudence
with slight physical injuries and damage to property because what the law seeks
to penalize is the single act of reckless imprudence, not the results thereof;
hence, there was no need for two separate informations.
To refute the third assigned error, the OSG submits that although the
Municipal Trial Court had jurisdiction to impose arresto menor for slight physical
injuries, the Regional Trial Court properly took cognizance of this case because
it had the jurisdiction to impose the higher penalty for the damage to property,
which was a fine equal to thrice the value of P8,542.00. On this score, the OSG,
cites Cuyos v. Garcia. 15
The OSG then debunks petitioner's defense of prescription of the crime,
arguing that the prescriptive period here was tolled by the filing of the complaint
with the fiscal's office three days after the incident, pursuant to People
v. Cuaresma, 16 and Chico v. Isidro. 17
In her Reply to the Comment of the OSG, petitioner expressed gratitude
and appreciation to the OSG in joining cause with her as to the first assigned
error. However, she considers the OSG's reliance on Buerano v. Court of
Appeals 18 as misplaced, for nothing there validates the "complexing" of the
crime of reckless imprudence with physical injuries and damage to property;
besides, in that case, two separate informations were filed — one for slight and
serious physical injuries through reckless imprudence and the other for damage
to property through reckless imprudence. She then insists that in this case,
following Arcaya v. Teleron 19 and Lontok v. Gorgonio, 20 two informations
should have been filed. She likewise submits that Cuyos v. Garcia 21 would only
apply here on the assumption that it was proper to "complex" damage to
property through reckless imprudence with slight physical injuries through
reckless imprudence. Chico v. Isidro 22 is likewise "inapposite," for it deals with
attempted homicide, which is not covered by the Rule on Summary Procedure.
Petitioner finally avers that People v. Cuaresma 23 should not be given
retroactive effect; otherwise, it would either unfairly prejudice her or render
nugatory the en banc ruling in Zaldivia 24 favorable to her.
The pleadings thus raise the following issues:
I. Whether the penalty imposed on petitioner is correct.
II. Whether the quasi offenses of reckless imprudence resulting in
damage to property in the amount of P8,542.00 and reckless
imprudence resulting in slight physical injuries are light
felonies.
III. Whether the rule on complex crimes under Article 48 of the
Revised Penal Code applies to the quasi offenses in question.
IV. Whether the duplicity of the information may be questioned for
the first time on appeal.
 V. Whether the Regional Trial Court had jurisdiction over the
offenses in question.
VI. Whether the quasi offenses in question have already prescribed.
I. The Proper Penalty.
We agree with both petitioner and the OSG that the penalty of six months
of arresto mayor imposed by the trial court and affirmed by respondent Court
of Appeals is incorrect. However, we cannot subscribe to their submission that
the penalty of arresto menor in its maximum period is the proper penalty.
Article 365 of the Revised Penal Code provides:
Art. 365. Imprudence and negligence. — Any person who, by
reckless imprudence, shall commit any act which, had it been intentional,
would constitute a grave felony, shall suffer the penalty of arresto mayor in
its maximum period to prision correccional in its medium period; if it would
have constituted a less grave felony, the penalty of arresto mayor in its
minimum and medium periods shall be imposed; if it would have
constituted a light felony, the penalty of arresto menor in its maximum
period shall be imposed.
Any person who, by simple imprudence or negligence, shall commit
an act which would otherwise constitute a grave felony, shall suffer the
penalty of arresto mayor in its medium and maximum periods; if it would
have constituted a less serious felony, the penalty of arresto mayor in its
minimum period shall be imposed.
When the execution of the act covered by this article shall have
only resulted in damage to the property of another, the offender shall be
punished by a fine ranging from an amount equal to the value of said
damages to three times such value, but which shall in no case be less
than 25 pesos.
A fine not exceeding 200 pesos and censure shall be imposed
upon any person who, by simple imprudence or negligence, shall cause
some wrong which, if done maliciously, would have constituted a light
felony.
In the imposition of these penalties, the courts shall exercise their
sound discretion, without regard to the rules prescribed in Article 64.
The provisions contained in this article shall not be applicable:
1. When the penalty provided for the offense is equal to or lower
than those provided in the first two paragraphs of this article, in which case
the courts shall impose the penalty next lower in degree than that which
should be imposed in the period which they may deem proper to apply.
 According to the first paragraph of the aforequoted Article, the penalty for
reckless imprudence resulting in slight physical injuries, a light felony, is arresto
menor in its maximum period, with a duration of 21 to 30 days. If the offense of
slight physical injuries is, however, committed deliberately or with malice, it is
penalized with arresto menor under Article 266 of the Revised Penal Code, with
a duration of 1 day to 30 days. Plainly, the penalty then under Article 266 may
be either lower than or equal to the penalty prescribed under the first paragraph
of Article 365. This being the case, the exception in the sixth paragraph of
Article 365 applies. Hence, the proper penalty for reckless imprudence resulting
in slight physical injuries is public censure, this being the penalty next lower in
degree to arresto menor. 25
As to reckless imprudence resulting in damage to property in the amount
of P8,542.00, the third paragraph of Article 365, which provides for the penalty
of fine, does not apply since the reckless imprudence in this case did not result
in damage to property only. What applies is the first paragraph of Article 365,
which provides for arrest mayor in its minimum and medium periods (1 month
and 1 day to 4 months) for an act committed through reckless imprudence
which, had it been intentional, would have constituted a less grave felony. Note
that if the damage to the extent of P8,542.00 were caused deliberately, the
crime would have been malicious mischief under Article 329 of the Revised
Penal Code, and the penalty would then be arresto mayor in its medium and
maximum periods (2 months and 1 day to 6 months which is higher than that
prescribed in the first paragraph of Article 365). If the penalty under Article 329
were equal to or lower than that provided for in the first paragraph, then the
sixth paragraph of Article 365 would apply, i.e., the penalty next lower in
degree, which is arresto menor in its maximum period to arresto mayor in its
minimum period or imprisonment from 21 days to 2 months. Accordingly, the
imposable penalty for reckless imprudence resulting in damage to property to
the extent of P8,542.00 would be arresto mayor in its minimum and medium
periods, which could be anywhere from a minimum of 1 month and 1 day to a
maximum of 4 months, at the discretion of the court, since the fifth paragraph
of Article 365 provides that in the imposition of the penalties therein provided
"the courts shall exercise their sound discretion without regard to the rule
prescribed in article 64."
II. Classification of the Quasi Offense in Question.
Felonies are committed not only by means of deceit (dolo), but likewise
by means of fault (culpa). There is deceit when the wrongful act is performed
with deliberate intent; and there is fault when the wrongful act results from
imprudence, negligence, lack of foresight or lack of skill. 26
As earlier stated, reckless imprudence resulting in slight physical injuries
is punishable by public censure only. Article 9, paragraph 3, of the Revised
Penal Code defines light felonies as infractions of law carrying the penalty
of arresto menor or a fine not exceeding P200.00, or both. Since public censure
is classified under Article 25 of the Code as a light penalty, and is considered
under the graduated scale provided in Article 71 of the same Code as a penalty
lower than arresto menor, it follows that the offense of reckless imprudence
resulting in slight physical injuries is a light felony.
On the other hand, reckless imprudence also resulting in damage to
property is, as earlier discussed, penalized with arresto mayor in its minimum
and medium periods. Since arresto mayor is a correctional penalty under Article
25 of the Revised Penal Code, the quasi offense in question is a less grave
felony — not a light felony as claimed by petitioner.
III. Applicability of the Rule on Complex Crimes.
Since criminal negligence may, as here, result in more than one felony,
should Article 48 of the Revised Code on complex crimes be applied? Article
48 provides as follows:
ART. 48. Penalty for complex crimes. — When a single act
constitutes two or more grave or less grave felonies, or when an offense
is necessary a means for committing the other, the penalty for the most
serious crime shall be imposed, the same to be applied in its maximum
period.
Clearly, if a reckless, imprudent or negligent act results in two or more
grave or less grave felonies, a complex crime is committed. However, in Lontok
v. Gorgonio, 27 this Court declared that where one of the resulting offenses in
criminal negligence constitutes a light felony, there is no complex crime, thus:
Applying article 48, it follows that if one offense is light, there is no
complex crime. The resulting offenses may be treated as separate or the
light felony may be absorbed by the grave felony. Thus, the light felonies
of damage to property and slight physical injuries, both resulting from a
single act of imprudence, do not constitute a complex crime. They cannot
be charged in one information. They are separate offenses subject to
distinct penalties (People vs. Turla, 50 Phil. 1001; See People vs.
Estipona, 70 Phil. 513).
Where the single act of imprudence resulted in double less serious
physical injuries, damage to property amounting to P10,000 and slight
physical injuries, a chief of police did not err in filing a separate complaint
for the slight physical injuries and another complaint for the lesiones
menos graves and damage to property [Arcaya vs. Teleron, L-37446, May
31, 1974, 57 SCRA 363, 365].
Hence, the trial court erred in considering the following felonies as a
complex crime: the less grave felony of reckless imprudence resulting in
damage to property in the amount of P8,542.00 and the light felony of reckless
imprudence resulting in physical injuries.
IV. The Right to Assail the Duplicity of the Information.
Following Lontok, the conclusion is inescapable here, that
the quasi offense of reckless imprudence resulting in slight physical injuries
should have been charged in a separate information because it is not covered
by Article 48 of the Revised Penal Code. However, petitioner may no longer
question, at this stage, the duplicitous character of the information, i.e.,
charging two separate offenses in one information, to wit: (1) reckless
imprudence resulting in damage to property; and (2) reckless imprudence
resulting in slight physical injuries. This defect was deemed waived by her
failure to raise it in a motion to quash before she pleaded to the
information. 28 Under Section 3, Rule 120 of the Rules of Court, when two or
more offenses are charged in a single complaint or information and the accused
fails to object to it before trial, the court may convict the accused of as many
offenses as are charged and proved and impose on him the penalty for each of
them. 29
V. Which Court Has Jurisdiction Over the Quasi Offenses in Question.
The jurisdiction to try a criminal action is to be determined by the law in
force at the time of the institution of the action, unless the statute expressly
provides, or is construed to the effect that it is intended to operate as to actions
pending before its enactment. 30
At the time of the filing of the information in this case, the law in force
was Batas Pambansa Blg. 129, otherwise known as "The Judiciary
Reorganization Act of 1980." Section 32(2) 31 thereof provided that except in
cases falling within the exclusive original jurisdiction of the Regional Trial Courts
and of the Sandiganbayan, the Metropolitan Trial Courts (MeTCs), Municipal
Trial Courts (MTCs), and Municipal Circuit Trial Courts (MCTCs) had exclusive
original jurisdiction over "all offenses punishable with imprisonment of not
exceeding four years and two months, or a fine of not more than four thousand
pesos, or both fine and imprisonment, regardless of other imposable accessory
or other penalties, including the civil liability arising from such offenses or
predicated thereon, irrespective of kind, nature, value or amount thereof."
The criminal jurisdiction of the lower courts was then determined by the
duration of the imprisonment and the amount of fine prescribed by law for the
offense charged. The question thus arises as to which court has jurisdiction
over offenses punishable by censure, such as reckless imprudence resulting in
slight physical injuries.
In Uy Chin Hua v. Dinglasan, 32 this Court found that a lacuna existed in
the law as to which court had jurisdiction over offenses penalized with destierro,
the duration of which was from 6 months and 1 day to 6 years, which was co-
extensive with prision correccional. We then interpreted the law in this wise:
Since the legislature has placed offenses penalized with arresto
mayor under the jurisdiction of justice of the peace and municipal courts,
and since by Article 71 of the Revised Penal Code, as amended by
Section 3 of Commonwealth Act No. 217, it has
placed destierro below arresto mayor as a lower penalty than the latter, in
the absence of any express provision of law to the contrary it is logical and
reasonable to infer from said provisions that its intention was to place
offenses penalized with destierro also under the jurisdiction of justice of
the peace and municipal courts and not under that of courts of first
instance.
Similarly, since offenses punishable by imprisonment of not exceeding 4
years and 2 months were within the jurisdictional ambit of the MeTCs, MTCs
and MCTCs, it follows that those penalized with censure, which is a penalty
lower than arresto menor under the graduated scale in Article 71 of the Revised
Penal Code and with a duration of 1 to 30 days, should also fall within the
jurisdiction of said courts. Thus, reckless imprudence resulting in slight physical
injuries was cognizable by said courts.
As to the reckless imprudence resulting in damage to property in the
amount of P8,542.00, the same was also under the jurisdiction of MeTCs,
MTCs or MCTCs because the imposable penalty therefor was arresto mayor in
its minimum and medium periods — the duration of which was from 1 month
and 1 day to 4 months.
Criminal Case No. 33919 should, therefore, be dismissed for lack of
jurisdiction on the part of the RTC of Makati.
VI. Prescription of the Quasi Offenses in Question.
Pursuant to Article 90 of the Revised Penal Code, reckless imprudence
resulting in slight physical injuries, being a light felony, prescribes in two
months. On the other hand, reckless imprudence resulting in damage to
property in the amount of P8,542.00 being a less grave felony whose penalty
is arresto mayor in its minimum and medium periods, prescribes in five years.
To resolve the issue of whether these quasi offenses have already
prescribed, it is necessary to determine whether the filing of the complaint with
the fiscal's office three days after the incident in question tolled the running of
the prescriptive period.
Article 91 of the Revised Penal Code provides:
ART. 91. Computation of prescription of offenses. — The period of
prescription shall commence to run from the day on which the crime is
discovered by the offended party, the authorities, or their agents, and shall
 be interrupted by the filing of the complaint or information, and shall
commence to run again when such proceedings terminate without the
accused being convicted or acquitted, or are unjustifiably stopped by any
reason not imputable to him. (emphasis supplied)
Notably, the aforequoted article, in declaring that the prescriptive period "shall
be interrupted by the filing of the complaint or information," does not distinguish
whether the complaint is filed for preliminary examination or investigation only
or for an action on the merits. 33 Thus, in Francisco v. Court of
Appeals 34 and People v. Cuaresma, 35 this Court held that the filing of the
complaint even with the fiscal's office suspends the running of the statute of
limitations.
We cannot apply Section 9 36 of the Rule on Summary Procedure, which
provides that in cases covered thereby, such as offenses punishable by
imprisonment not exceeding 6 months, as in the instant case, "the prosecution
commences by the filing of a complaint or information directly with the MeTC,
RTC or MCTC without need of a prior preliminary examination or investigation;
provided that in Metropolitan Manila and Chartered Cities, said cases may be
commenced only by information." However, this Section cannot be taken to
mean that the prescriptive period is interrupted only by the filing of a complaint
or information directly with said courts.
It must be stressed that prescription in criminal cases is a matter of
substantive law. Pursuant to Section 5(5), Article VIII of the Constitution, this
Court, in the exercise of its rule-making power, is not allowed to diminish,
increase or modify substantive rights. 37 Hence, in case of conflict between the
Rule on Summary Procedure promulgated by this Court and the Revised Penal
Code, the latter prevails.
Neither does Zaldivia control in this instance. It must be recalled that
what was involved therein was a violation of a municipal ordinance; thus, the
applicable law was not Article 91 of the Revised Penal Code, but Act. No. 3326,
as amended, entitled "An Act to Establish Periods of Prescription for Violations
Penalized by Special Acts and Municipal Ordinances and to Provide When
Prescription Shall Begin to Run." Under, Section 2 thereof, the period of
prescription is suspended only when judicial proceedings are instituted against
the guilty party. Accordingly, this Court held that the prescriptive period was not
interrupted by the filing of the complaint with the Office of the Provincial
Prosecutor, as such did not constitute a judicial proceeding; what could have
tolled the prescriptive period there was only the filing of the information in the
proper court.
In the instant case, as the offenses involved are covered by the Revised
Penal Code, Article 91 thereof and the rulings
in Francisco and Cuaresma apply. Thus, the prescriptive period for
 the quasi offenses in question was interrupted by the filing of the complaint with
the fiscal's office three days after the vehicular mishap and remained tolled
pending the termination of this case. We cannot, therefore, uphold petitioner's
defense of prescription of the offenses charged in the information in this case.
WHEREFORE, the instant petition is GRANTED. The challenged
decision of respondent Court of Appeals in CA-G.R. CR No. 14660 is SET
ASIDE as the Regional Trial Court, whose decision was affirmed therein, had
no jurisdiction over Criminal Case No. 33919.
Criminal Case No. 33919 is ordered DISMISSED.
No pronouncement as to costs.
SO ORDERED.
Bellosillo, Vitug, Panganiban and Quisumbing, JJ ., concur.
(Reodica v. Court of Appeals, G.R. No. 125066, [July 8, 1998], 354 PHIL 90-
|||

111)

SPECIAL FIRST DIVISION

[G.R. Nos. 165510-33. July 28, 2006.]

BENJAMIN ("KOKOY") T. ROMUALDEZ, petitioner, vs. HON.

SIMEON V. MARCELO, in his official capacity as the
Ombudsman, and PRESIDENTIAL COMMISSION ON GOOD
GOVERNMENT, respondents.

RESOLUTION

YNARES-SANTIAGO, J : p

For resolution is petitioner's Motion for Reconsideration 1 assailing the

Decision dated September 23, 2005, the dispositive portion of which states:
WHEREFORE, the petition is DISMISSED. The resolutions dated
July 12, 2004 and September 6, 2004 of the Office of the Special
Prosecutor, are AFFIRMED.
SO ORDERED. 2
Petitioner claims that the Office of the Ombudsman gravely abused its
discretion in recommending the filing of 24 informations against him for violation
of Section 7 of Republic Act (RA) No. 3019 or the Anti-Graft and Corrupt
Practices Act; that the Ombudsman cannot revive the aforementioned cases
which were previously dismissed by the Sandiganbayan in its Resolution of
February 10, 2004; that the defense of prescription may be raised even for the
first time on appeal and thus there is no necessity for the presentation of
evidence thereon before the court a quo. Thus, this Court may accordingly
dismiss Criminal Case Nos. 28031-28049 pending before the Sandiganbayan
and Criminal Case Nos. 04-231857-04-231860 pending before the Regional
Trial Court of Manila, all on the ground of prescription.
In its Comment, 3 the Ombudsman argues that the dismissal of the
informations in Criminal Case Nos. 13406-13429 does not mean that petitioner
was thereafter exempt from criminal prosecution; that new informations may be
filed by the Ombudsman should it find probable cause in the conduct of its
preliminary investigation; that the filing of the complaint with the Presidential
Commission on Good Government (PCGG) in 1987 and the filing of the
information with the Sandiganbayan in 1989 interrupted the prescriptive period;
that the absence of the petitioner from the Philippines from 1986 until 2000 also
interrupted the aforesaid period based on Article 91 of the Revised Penal Code.
For its part, the PCGG avers in its Comment 4 that, in accordance with
the 1987 Constitution and RA No. 6770 or the Ombudsman Act of 1989, the
Ombudsman need not wait for a new complaint with a new docket number for
it to conduct a preliminary investigation on the alleged offenses of the petitioner;
that considering that both RA No. 3019 and Act No. 3326 or the Act To
Establish Periods of Prescription For Violations Penalized By Special Acts and
Municipal Ordinances and to Provide When Prescription Shall Begin To Run,
are silent as to whether prescription should begin to run when the offender is
absent from the Philippines, the Revised Penal Code, which answers the same
in the negative, should be applied.
The issues for resolution are: (1) whether the preliminary investigation
conducted by the Ombudsman in Criminal Case Nos. 13406-13429 was a
nullity; and (2) whether the offenses for which petitioner are being charged have
already prescribed. AEScHa

Anent the first issue, we reiterate our ruling in the assailed Decision that
the preliminary investigation conducted by the Ombudsman in Criminal Case
Nos. 13406-13429 is a valid proceeding despite the previous dismissal thereof
by the Sandiganbayan in its Minute Resolution 5 dated February 10, 2004 which
reads:
Crim. Cases Nos. 13406-13429-PEO. vs. BENJAMIN T.
ROMUALDEZ
Considering that the Decision of the Honorable Supreme Court in
G.R. Nos. 143618-41, entitled "Benjamin 'Kokoy' Romualdez vs. The
 Honorable Sandiganbayan (First Division, et al.)" promulgated on July 30,
2002 annulled and set aside the orders issued by this Court on June 8,
2000 which, among others, denied the accused's motion to quash the
informations in these cases; that in particular the above-mentioned
Decision ruled that the herein informations may be quashed because the
officer who filed the same had no authority to do so; and that the said
Decision has become final and executory on November 29, 2002, these
cases are considered DISMISSED. Let these cases be sent to the
archives.
The aforesaid dismissal was effected pursuant to our ruling
in Romualdez v. Sandiganbayan 6 where petitioner assailed the
Sandiganbayan's Order dated June 8, 2000 in Criminal Case Nos. 13406-
13429 which denied his Motion to Quash, terminated the preliminary
investigation conducted by Prosecutor Evelyn T. Lucero and set his
arraignment for violations of Section 7 of RA No. 3019 on June 26, 2000. 7 In
annulling and setting aside the aforesaid Order of the Sandiganbayan, we held
that:
In the case at bar, the flaw in the information is not a mere
remediable defect of form, as in Pecho v. Sandiganbayan where the
wording of the certification in the information was found inadequate, or
in People v. Marquez, where the required certification was absent. Here,
the informations were filed by an unauthorized party. The defect cannot
be cured even by conducting another preliminary investigation. An invalid
information is no information at all and cannot be the basis for criminal
proceedings. 8
In effect, we upheld in Romualdez v. Sandiganbayan 9 petitioner's
Motion to Quash and directed the dismissal of Criminal Case Nos. 13406-13429
because the informations were filed by an unauthorized party, hence void.
In such a case, Section 6, Rule 117 of the Rules of Court is pertinent and
applicable. Thus:
SEC. 6. Order sustaining the motion to quash not a bar to another
prosecution; exception. — An order sustaining the motion to quash is not
a bar to another prosecution for the same offense unless the motion was
based on the grounds specified in section 3(g) and (i) 10 of this Rule.
An order sustaining a motion to quash on grounds other than extinction
of criminal liability or double jeopardy does not preclude the filing of another
information for a crime constituting the same facts. Indeed, we held in Cudia v.
Court of Appeals 11 that:
In fine, there must have been a valid and sufficient complaint or
information in the former prosecution. If, therefore, the complaint or
information was insufficient because it was so defective in form or
substance that the conviction upon it could not have been sustained, its
 dismissal without the consent of the accused cannot be pleaded. As the
fiscal had no authority to file the information, the dismissal of the first
information would not be a bar in petitioner's subsequent prosecution. . . .
. 12
Be that as it may, the preliminary investigation conducted by the
Ombudsman in the instant cases was not a violation of petitioner's right to be
informed of the charges against him. It is of no moment that the cases
investigated by the Ombudsman bore the same docket numbers as those cases
which have already been dismissed by the Sandiganbayan, to wit: Criminal
Case Nos. 13406-13429. As we have previously stated:
The assignment of a docket number is an internal matter designed
for efficient record keeping. It is usually written in the Docket Record in
sequential order corresponding to the date and time of filing a case. SEIDAC

This Court agrees that the use of the docket numbers of the
dismissed cases was merely for reference. In fact, after the new
informations were filed, new docket numbers were assigned, i.e., Criminal
Cases Nos. 28031-28049 . . . . 13
Besides, regardless of the docket numbers, the Ombudsman conducted
the above-referred preliminary investigation pursuant to our Decision
in Romualdez v. Sandiganbayan 14 when we categorically declared therein
that:
The Sandiganbayan also committed grave abuse of discretion
when it abruptly terminated the reinvestigation being conducted by
Prosecutor Lucero. It should be recalled that our directive in G.R. No.
105248 for the holding of a preliminary investigation was based on our
ruling that the right to a preliminary investigation is a substantive, rather
than a procedural right. Petitioner's right was violated when the
preliminary investigation of the charges against him were conducted by
an officer without jurisdiction over the said cases. It bears stressing that
our directive should be strictly complied with in order to achieve its
objective of affording petitioner his right to due process. 15
Anent the issue on the prescription of the offenses charged, we should
first resolve the question of whether this Court may validly take cognizance of
and resolve the aforementioned issue considering that as we have said in the
assailed Decision, "this case has never progressed beyond the filing of the
informations against the petitioner" 16 and that "it is only prudent that evidence
be gathered through trial on the merits to determine whether the offense
charged has already prescribed." 17 We reconsider our stance and shall rule in
the affirmative.
Rule 117 of the Rules of Court provides that the accused may, at any
time before he enters his plea, move to quash the complaint and
information 18 on the ground that the criminal action or liability has been
extinguished, 19 which ground includes the defense of prescription considering
that Article 89 of the Revised Penal Code enumerates prescription as one of
those grounds which totally extinguishes criminal liability. Indeed, even if there
is yet to be a trial on the merits of a criminal case, the accused can very well
invoke the defense of prescription.
Thus, the question is whether or not the offenses charged in the subject
criminal cases have prescribed? We held in the case of Domingo v.
Sandiganbayan 20 that:
In resolving the issue of prescription of the offense charged, the
following should be considered: (1) the period of prescription for the
offense charged; (2) the time the period of prescription starts to run; and
(3) the time the prescriptive period was interrupted. 21
Petitioner is being charged with violations of Section 7 of RA No. 3019 for
failure to file his Statements of Assets and Liabilities for the period 1967-1985
during his tenure as Ambassador Extraordinary and Plenipotentiary and for the
period 1963-1966 during his tenure as Technical Assistant in the Department
of Foreign Affairs.
Section 11 of RA No. 3019 provides that all offenses punishable therein
shall prescribe in 15 years. Significantly, this Court already declared in the case
of People v. Pacificador 22 that:
It appears however, that prior to the amendment of Section 11 of
R.A. No. 3019 by B.P. Blg. 195 which was approved on March 16, 1982,
the prescriptive period for offenses punishable under the said statute was
only ten (10) years. The longer prescriptive period of fifteen (15) years, as
provided in Section 11 of R.A. No. 3019 as amended by B.P. Blg. 195,
does not apply in this case for the reason that the amendment, not being
favorable to the accused (herein private respondent), cannot be given
retroactive effect. Hence, the crime prescribed on January 6, 1986 or ten
(10) years from January 6, 1976. 23
Thus, for offenses allegedly committed by the petitioner from 1962 up to
March 15, 1982, the same shall prescribe in 10 years. On the other hand, for
offenses allegedly committed by the petitioner during the period from March 16,
1982 until 1985, the same shall prescribe in 15 years. aSACED

As to when these two periods begin to run, reference is made to Act No.
3326 which governs the computation of prescription of offenses defined by and
penalized under special laws. Section 2 of Act No. 3326 provides:
SEC. 2. Prescription shall begin to run from the day of the
commission of the violation of the law, and if the same be not known at
the time, from the discovery thereof and the institution of judicial
proceedings for its investigation and punishment.
 The prescription shall be interrupted when proceedings are
instituted against the guilty person, and shall begin to run again if the
proceedings are dismissed for reasons not constituting jeopardy.
In the case of People v. Duque, 24 we construed the aforequoted
provision, specifically the rule on the running of the prescriptive period as
follows:
In our view, the phrase "institution of judicial proceedings for its
investigation and punishment" may be either disregarded as surplusage
or should be deemed preceded by the word "until." Thus, Section 2 may
be read as:
"Prescription shall begin to run from the day of the
commission of the violation of the law; and if the same be not
known at the time, from the discovery thereof;"
or as:
"Prescription shall begin to run from the day of the
commission of the violation of the law, and if the same be not
known at the time, from the discovery thereof and until institution of
judicial proceedings for its investigation and punishment."
(Emphasis supplied) 25
Thus, this Court rules that the prescriptive period of the offenses herein
began to run from the discovery thereof or on May 8, 1987, which is the date of
the complaint filed by the former Solicitor General Francisco I. Chavez against
the petitioner with the PCGG.
In the case of Presidential Ad Hoc Fact-Finding Committee on Behest
Loans v. Desierto 26 this Court already took note that:
In cases involving violations of R.A. No. 3019 committed prior to
the February 1986 EDSA Revolution that ousted President Ferdinand E.
Marcos, we ruled that the government as the aggrieved party could not
have known of the violations at the time the questioned transactions were
made. Moreover, no person would have dared to question the legality of
those transactions. Thus, the counting of the prescriptive period
commenced from the date of discovery of the offense in 1992 after an
exhaustive investigation by the Presidential Ad Hoc Committee on Behest
Loans. 27
However, both respondents in the instant case aver that, applying Article
91 of the Revised Penal Code suppletorily, the absence of the petitioner from
the Philippines from 1986 until April 27, 2000 prevented the prescriptive period
for the alleged offenses from running.
We disagree.
 Section 2 of Act No. 3326 is conspicuously silent as to whether the
absence of the offender from the Philippines bars the running of the prescriptive
period. The silence of the law can only be interpreted to mean that Section 2
of Act No. 3326 did not intend such an interruption of the prescription unlike the
explicit mandate of Article 91. Thus, as previously held:
Even on the assumption that there is in fact a legislative gap
caused by such an omission, neither could the Court presume otherwise
and supply the details thereof, because a legislative lacuna cannot be
filled by judicial fiat. Indeed, courts may not, in the guise of the
interpretation, enlarge the scope of a statute and include therein situations
not provided nor intended by the lawmakers. An omission at the time of
the enactment, whether careless or calculated, cannot be judicially
supplied however after later wisdom may recommend the inclusion.
Courts are not authorized to insert into the law what they think should be
in it or to supply what they think the legislature would have supplied if its
attention has been called to the omission. 28
The only matter left to be resolved is whether the filing of the complaint
with the PCGG in 1987 as well as the filing of the informations with the
Sandiganbayan to initiate Criminal Case Nos. 13406-13429 in 1989 interrupted
the running of the prescriptive period such that when the Ombudsman directed
petitioner to file his counter-affidavit on March 3, 2004, the offenses have
already prescribed. ETDaIC

Under Section 2 of Act No. 3326, the prescriptive period shall be

interrupted "when proceedings are instituted against the guilty person."
However, there is no such proceeding instituted against the petitioner to warrant
the tolling of the prescriptive periods of the offenses charged against him.
In Romualdez v. Sandiganbayan, 29 petitioner averred that PCGG acted
without jurisdiction and/or grave abuse of discretion in conducting a preliminary
investigation of cases not falling within its competence. 30 This Court, in its
resolve to "deal with the merits of the case to remove the possibility of any
misunderstanding as to the course which it wishes petitioner's cases in the
Sandiganbayan to take" 31 declared invalid —
the preliminary investigation conducted by the PCGG over the 24
offenses ascribed to Romualdez (of failure to file annual statements of
assets and liabilities), for lack of jurisdiction of said offenses. 32
In Romualdez v. Sandiganbayan, 33 petitioner assailed the validity of the
informations filed with the Sandiganbayan in Criminal Case Nos. 13406-13429
considering that the same were subscribed and filed by the PCGG. In granting
petitioner's plea, this Court held, thus:
Here, the informations were filed by an unauthorized party. The
defect cannot be cured by conducting another preliminary investigation.
 An invalid information is no information at all and cannot be the basis for
criminal proceedings. 34
Indeed, the nullity of the proceedings initiated by then Solicitor General
Chavez in 1987 with the PCGG and by the PCGG with the Sandiganbayan in
1989 is judicially settled. In contemplation of the law, no proceedings exist that
could have merited the suspension of the prescriptive periods.
Besides, the only proceeding that could interrupt the running of
prescription is that which is filed or initiated by the offended party before the
appropriate body or office. Thus, in the case of People v. Maravilla, 35 this Court
ruled that the filing of the complaint with the municipal mayor for purposes of
preliminary investigation had the effect of suspending the period of prescription.
Similarly, in the case of Llenes v. Dicdican, 36 this Court held that the filing of a
complaint against a public officer with the Ombudsman tolled the running of the
period of prescription.
In the case at bar, however, the complaint was filed with the wrong body,
the PCGG. Thus, the same could not have interrupted the running of the
prescriptive periods.
However, in his Dissenting Opinion, Mr. Justice Carpio contends that the
offenses charged against the petitioner could not have prescribed because the
latter was absent from the Philippines from 1986 to April 27, 2000 and thus the
prescriptive period did not run from the time of discovery on May 8, 1987, citing
Article 91 of the Revised Penal Code which provides that "[t]he term of
prescription should not run when the offender is absent from the Philippine
Archipelago."
Mr. Justice Carpio argues that —
Article 10 of the same Code makes Article 91 ". . . supplementary
to [special laws], unless the latter should . . . provide the contrary." Nothing
in RA 3019 prohibits the supplementary application of Article 91 to that
law. Hence, applying Article 91, the prescriptive period in Section 11 of RA
3019, before and after its amendment, should run only after petitioner
returned to this jurisdiction on 27 April 2000.
There is no gap in the law. Where the special law is silent, Article
10 of the RPC applies suppletorily, as the Court has held in a long line of
decisions since 1934, starting with People v. Moreno. Thus, the Court has
applied suppletorily various provisions of the RPC to resolve cases where
the special laws are silent on the matters in issue. The law on the
applicability of Article 10 of the RPC is thus well-settled, with the latest
reiteration made by this Court in 2004 in Jao Yu v. People. SDITAC

He also expresses his apprehension on the possible effects of the ruling

of the Majority Opinion and argues that —
 The accused should not have the sole discretion of preventing his
own prosecution by the simple expedient of escaping from the State's
jurisdiction. . . . An accused cannot acquire legal immunity by being a
fugitive from the State's jurisdiction. . . . .
To allow an accused to prevent his prosecution by simply leaving
this jurisdiction unjustifiably tilts the balance of criminal justice in favor of
the accused to the detriment of the State's ability to investigate and
prosecute crimes. In this age of cheap and accessible global travel, this
Court should not encourage individuals facing investigation or prosecution
for violation of special laws to leave Philippine jurisdiction to sit-out abroad
the prescriptive period. The majority opinion unfortunately chooses to lay
the basis for such anomalous practice.
With all due respect, we beg to disagree.
Article 10 of the Revised Penal Code provides:
ART. 10. Offenses not subject to the provisions of this Code. —
Offenses which are or in the future may be punishable under special laws
are not subject to the provisions of this Code. This Code shall be
supplementary to such laws, unless the latter should specially provide the
contrary.
Pursuant thereto, one may be tempted to hastily conclude that a special
law such as RA No. 3019 is supplemented by the Revised Penal Code in any
and all cases. As it is, Mr. Justice Carpio stated in his Dissenting Opinion that
—
There is no gap in the law. Where the special law is silent, Article
10 of the RPC applies suppletorily, as the Court has held in a long line of
decisions since 1934, starting with People v. Moreno. Thus, the Court has
applied suppletorily various provisions of the RPC to resolve cases where
the special laws are silent on the matters in issue. The law on the
applicability of Article 10 of the RPC is thus well-settled, with the latest
reiteration made by this Court in 2004 in Jao Yu v. People.
However, it must be pointed out that the suppletory application of
the Revised Penal Code to special laws, by virtue of Article 10 thereof, finds
relevance only when the provisions of the special law are silent on a particular
matter as evident from the cases cited and relied upon in the Dissenting
Opinion:
In the case of People v. Moreno, 37 this Court, before ruling that the
subsidiary penalty under Article 39 of the Revised Penal Code may be applied
in cases of violations of Act No. 3992 or the Revised Motor Vehicle Law, noted
that the special law did not contain any provision that the defendant can be
sentenced with subsidiary imprisonment in case of insolvency.
 In the case of People v. Li Wai Cheung, 38 this Court applied the rules on
the service of sentences provided in Article 70 of the Revised Penal Code in
favor of the accused who was found guilty of multiple violations of RA No.
6425 or The Dangerous Drugs Act of 1972 considering the lack of similar rules
under the special law.
In the case of People v. Chowdury, 39 the Court applied Articles 17, 18
and 19 of the Revised Penal Code to define the
words "principal," "accomplices" and "accessories" under RA No. 8042 or
the Migrant Workers and Overseas Filipinos Act of 1995 because it was not
defined therein although it referred to the same terms in enumerating the
persons liable for the crime of illegal recruitment.
In the case at bar, the silence of RA No. 3019 on the question of whether
or not the absence of the accused from the Philippines prevents or tolls the
running of the prescriptive period is more apparent than real.
Even before the enactment of RA No. 3019 in 1960, Act No. 3326 was
already in effect as early as December 4, 1926. Section 3 thereof categorically
defines "special acts" as "acts defining and penalizing violations of the law
not included in the Penal Code". CcAHEI

Thus, in the case of Presidential Ad Hoc Fact-Finding Committee on

Behest Loans v. Desierto, 40 this Court was categorical in ruling that —
The law on prescription of offenses is found in Articles 90 and 91
of the Revised Penal Code for offenses punishable thereunder. For those
penalized under special laws, Act No. 3326 applies.
Section 2 of Act No. 3326 provides that the prescription shall begin to run
from the day of the commission of the violation of the law, and if the same be
not known at the time, from the discovery thereof and the institution of judicial
proceedings for its investigation and punishment. The running of the
prescriptive period shall be interrupted when proceedings are instituted
against the guilty person, and shall begin to run again if the proceedings
are dismissed for reasons not constituting jeopardy. Clearly, Section 2
of Act No. 3326 did not provide that the absence of the accused from the
Philippines prevents the running of the prescriptive period. Thus, the only
inference that can be gathered from the foregoing is that the legislature, in
enacting Act No. 3326, did not consider the absence of the accused from the
Philippines as a hindrance to the running of the prescriptive period. Expressio
unius est exclusio alterius. To elaborate, —
Indeed, it is an elementary rule of statutory construction that the
express mention of one person, thing, act, or consequence excludes all
others. This rule is expressed in the familiar maxim "expressio unius est
exclusio alterius." Where a statute, by its terms, is expressly limited to
certain matters, it may not, by interpretation or construction, be extended
 to others. The rule proceeds from the premise that the legislature would
not have made specified enumerations in a statute had the intention been
not to restrict its meaning and to confine its terms to those expressly
mentioned. 41
Had the legislature intended to include the accused's absence from the
Philippines as a ground for the interruption of the prescriptive period in special
laws, the same could have been expressly provided in Act No. 3326. A case in
point is RA No. 8424 or the Tax Reform Act of 1997 where the legislature made
its intention clear and was thus categorical that —
SEC. 281. Prescription for Violations of any Provision of this
Code — All violations of any provision of this Code shall prescribe after
five (5) years.
Prescription shall begin to run from the day of the commission of
the violation of the law, and if the same be not known at the time, from the
discovery thereof and the institution of judicial proceedings for its
investigation and punishment.
The prescription shall be interrupted when proceedings are
instituted against the guilty persons and shall begin to run again if the
proceedings are dismissed for reasons not constituting jeopardy.
The term of prescription shall not run when the offender is
absent from the Philippines. (Emphasis supplied)
According to Mr. Justice Carpio, Article 91 of the Revised Penal Code fills
the so-called "gap" in Act No. 3326. Thus, while Act No. 3326 governs the
operation of the prescriptive period for violations of R.A. No. 3019, Article 91 of
the Revised Penal Code can and shall still be applied in cases where the
accused is absent from the Philippines. In effect, Article 91 would
supplement Act No. 3326.
This could not have been the intention of the framers of the law.
While it is true that Article 10 of the Revised Penal Code makes the Code
suppletory to special laws, however, Act No. 3326 cannot fall within the ambit
of "special law" as contemplated and used in Article 10 of the RPC.
In the case of United States v. Serapio, 42 the Court had the occasion to
interpret the term "special laws" mentioned in Article 7 of then Penal Code of
the Philippines, which is now Article 10 of the Revised Penal Code, as referring
to penal laws that punish acts not defined and penalized by the Penal Code of
the Philippines. Thus —
This contention makes it necessary to define "special laws," as that
phrase is used in article 7 of the Penal Code. Does this phrase "leyes
especiales," as used in the Penal Code (article 7) have the meaning
applied to the phrase "special laws," as the same is generally used? . . .
 It is confidently contended that the phrase "leyes especiales," as used in
the Penal Code (article 7) is not used with this general signification: In
fact, said phrase may refer not to a special law as above defined, but to a
general law. A careful reading of said article 7 clearly indicates that the
phrase "leyes especiales" was not used to signify "special laws" in the
general signification of that phrase. The article, it will be noted, simply
says, in effect, that when a crime is made punishable under some other
law than the Penal Code, it (the crime) is not subject to the provisions of
said code. 43
Even if we consider both Act No. 3326 and Article 91 as supplements
to RA No. 3019, the same result would obtain. A conflict will arise from the
contemporaneous application of the two laws. The Revised Penal
Code explicitly states that the absence of the accused from the Philippines shall
be a ground for the tolling of the prescriptive period while Act No. 3326 does
not. In such a situation, Act No. 3326 must prevail over Article 91 because it
specifically and directly applies to special laws while the Revised Penal
Code shall apply to special laws only suppletorily and only when the latter do
not provide the contrary. Indeed, elementary rules of statutory construction
dictate that special legal provisions must prevail over general ones. IHCacT

The majority notes Mr. Justice Carpio's reservations about the effects of
ruling that the absence of the accused from the Philippines shall not suspend
the running of the prescriptive period. Our duty, however, is only to interpret the
law. To go beyond that and to question the wisdom or effects of the law is
certainly beyond our constitutionally mandated duty. As we have already
explained —
Even on the assumption that there is in fact a legislative gap
caused by such an omission, neither could the Court presume otherwise
and supply the details thereof, because a legislative lacuna cannot be
filled by judicial fiat. Indeed, courts may not, in the guise of interpretation,
enlarge the scope of a statute and include therein situations not provided
nor intended by the lawmakers. An omission at the time of the enactment,
whether careless or calculated, cannot be judicially supplied however after
later wisdom may recommend the inclusion. Courts are not authorized to
insert into the law what they think should be in it or to supply what they
think the legislature would have supplied if its attention has been called to
the omission. 44
Mr. Justice Carpio also remarks that the liberal interpretation of the
statute of limitations in favor of the accused only relates to the following
issues: (1) retroactive or prospective application of laws providing or extending
the prescriptive period; (2) the determination of the nature of the felony
committed vis-à-vis the applicable prescriptive period; and (3) the reckoning of
when the prescriptive period runs. Therefore, the aforementioned principle
cannot be utilized to support the Majority Opinion's conclusion that the
prescriptive period in a special law continues to run while the accused is
abroad.
We take exception to the foregoing proposition.
We believe that a liberal interpretation of the law on prescription in
criminal cases equally provides the authority for the rule that the prescriptive
period runs while the accused is outside of Philippine jurisdiction. The nature of
the law on prescription of penal statutes supports this conclusion. In the old but
still relevant case of People v. Moran, 45 this Court extensively discussed the
rationale behind and the nature of prescription of penal offenses —
"We should at first observe that a mistake is sometimes made in
applying to statutes of limitation in criminal suits the construction that has
been given to statutes of limitation in civil suits. The two classes of
statutes, however, are essentially different. In civil suits the statute is
interposed by the legislature as an impartial arbiter between two
contending parties. In the construction of the statute, therefore, there is no
intendment to be made in favor of either party. Neither grants the right to
the other; there is therefore no grantor against whom the ordinary
presumptions, of construction are to be made. But it is, otherwise when a
statute of limitation is granted by the State. Here the State is the grantor,
surrendering by act of grace its rights to prosecute, and declaring the
offense to be no longer the subject of prosecution.' The statute is not a
statute of process, to be scantily and grudgingly applied, but an
amnesty, declaring that after a certain time oblivion shall be cast
over the offence; that the offender shall be at liberty to return to his
country, and resume his immunities as a citizen and that from
henceforth he may cease to preserve the proofs of his innocence,
for the proofs of his guilt are blotted out. Hence it is that statutes of
limitation are to be liberally construed in favor of the defendant, not only
because such liberality of construction belongs to all acts of amnesty and
grace, but because the very existence of the statute, is a recognition and
notification by the legislature of the fact that time, while it gradually wears
out proofs of innocence, has assigned to it fixed and positive periods in
which it destroys proofs of guilt. Independently of these views, it must be
remembered that delay in instituting prosecutions is not only productive of
expense to the State, but of peril to public justice in the attenuation and
distortion, even by mere natural lapse of memory, of testimony. It is the
policy of the law that prosecutions should be prompt, and that statutes,
enforcing such promptitude should be vigorously maintained. They are not
merely acts of grace, but checks imposed by the State upon itself, to exact
vigilant activity from its subalterns, and to secure for criminal trials the best
evidence that can be obtained." (Emphasis supplied)
Indeed, there is no reason why we should deny petitioner the benefits
accruing from the liberal construction of prescriptive laws on criminal statutes.
Prescription emanates from the liberality of the State. Any bar to or cause of
interruption in the operation of prescriptive periods cannot simply be implied nor
derived by mere implication. Any diminution of this endowment must be directly
and expressly sanctioned by the source itself, the State. Any doubt on this
matter must be resolved in favor of the grantee thereof, the accused.
The foregoing conclusion is logical considering the nature of the laws on
prescription. The exceptions to the running of or the causes for the interruption
of the prescriptive periods may and should not be easily implied. The
prescriptive period may only be prevented from operating or may only be tolled
for reasons explicitly provided by the law.
In the case of People v. Pacificador, 46 we ruled that:
It bears emphasis, as held in a number of cases, that in the
interpretation of the law on prescription of crimes, that which is more
favorable to the accused is to be adopted. The said legal principle takes
into account the nature of the law on prescription of crimes which is an act
of amnesty and liberality on the part of the state in favor of the offender.
In the case of People v. Moran, this Court amply discussed the nature of
the statute of limitations in criminal cases, as follows:
The statute is not statute of process, to be scantily and
grudgingly applied, but an amnesty, declaring that after a certain
time oblivion shall be cast over the offense; that the offender shall
be at liberty to return to his country, and resume his immunities as
a citizen; and that from henceforth he may cease to preserve the
proofs of his innocence, for the proofs of his guilt are blotted out.
Hence, it is that statues of limitation are to be liberally construed in
favor of the defendant, not only because such liberality of
construction belongs to all acts of amnesty and grace, but because
the very existence of the statute is a recognition and notification by
the legislature of the fact that time, while it gradually wears out
proofs of innocence, has assigned to it fixed and positive periods
in which it destroys proofs of guilt. 47
In view of the foregoing, the applicable 10-and-15-year prescriptive
periods in the instant case, were not interrupted by any event from the time they
began to run on May 8, 1987. As a consequence, the alleged offenses
committed by the petitioner for the years 1963-1982 prescribed 10 years from
May 8, 1987 or on May 8, 1997. On the other hand, the alleged offenses
committed by the petitioner for the years 1983-1985 prescribed 15 years from
May 8, 1987 or on May 8, 2002. CEDScA

Therefore, when the Office of the Special Prosecutor initiated the

preliminary investigation of Criminal Case Nos. 13406-13429 on March 3, 2004
by requiring the petitioner to submit his counter-affidavit, the alleged offenses
subject therein have already prescribed. Indeed, the State has lost its right to
prosecute petitioner for the offenses subject of Criminal Case Nos. 28031-
 28049 pending before the Sandiganbayan and Criminal Case Nos. 04-231857-
04-231860 pending before the Regional Trial Court of Manila.
WHEREFORE, premises considered, petitioner's Motion for
Reconsideration is GRANTED. Criminal Case Nos. 28031-28049 pending
before the Sandiganbayan and Criminal Case Nos. 04-231857-04-231860
pending before the Regional Trial Court of Manila are all hereby ordered
DISMISSED.
SO ORDERED.
Quisumbing and Azcuna, JJ., concur.
Carpio, J., see dissenting opinion.
(Romualdez v. Marcelo, G.R. Nos. 165510-33 (Resolution), [July 28, 2006], 529
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PHIL 90-119)