G.R. No.

220598

GLORIA MACAPAGAL ARROYO, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES AND THE SANDIGANBAYAN, (First Division), Respondents

On July 19, 2016, the Court promulgated its decision, disposing:

WHEREFORE, the Court GRANTS the petitions for certiorari; ANNULS and SETS ASIDE the resolutions issued in Criminal

Case No. SB-12-CRM-0174 by the Sandiganbayan  on April 6, 2015 and September 10, 2015; GRANTS the petitioners'
respective demurrers to evidence; DISMISSES Criminal Case No. SB-12-CRM-0174 as to the petitioners GLORIA
MACAPAGAL-ARROYO and BENIGNO AGUAS for insufficiency of evidence; ORDERS the immediate release from detention
of said petitioners; and MAKES no pronouncements on costs of suit.

SO ORDERED. 1

On August 3, 2016, the State, through the Office of the Ombudsman, has moved for the reconsideration of the decision, submitting
that:

I. THIS HONORABLE COURT'S GIVING DUE COURSE TO A CERTIORARI ACTION ASSAILING AN INTERLOCUTORY
ORDER DENYING DEMURRER TO EVIDENCE VIOLATES RULE 119, SECTION 23 OF THE RULES OF COURT, WHICH
PROVIDES THAT AN ORDER DENYING THE DEMURRER TO EVIDENCE SHALL NOT BE REVIEWABLE BY APPEAL OR
BY CERTIORARI BEFORE JUDGMENT.

II. THE HONORABLE COURT COMMITTED GRAVE ERRORS WHICH AMOUNT TO A VIOLATION OR DEPRIVATION OF
THE STATE'S FUNDAMENTAL RIGHT TO DUE PROCESS OF LAW.

A. THE DECISION REQUIRES ADDITIONAL ELEMENTS IN THE PROSECUTION OF

PLUNDER, VIZ. IDENTIFICATION OF THE MAIN PLUNDERER AND PERSONAL BENEFIT TO HIM/HER, BOTH
OF WHICH ARE NOT PROVIDED IN THE TEXT OF REPUBLIC ACT (R.A.) NO. 7080.

B. THE EVIDENCE PRESENTED BY THE PROSECUTION WAS NOT FULLY TAKEN INTO ACCOUNT, INCLUDING
BUT NOT LIMITED TO THE IRREGULARITIES IN THE CONFIDENTIAL/INTELLIGENCE FUND (CIF)
DISBURSEMENT PROCESS, QUESTIONABLE PRACTICE OF CO-MINGLING OF FUNDS AND AGUAS'
REPORTS TO THE COMMISSION ON AUDIT (COA) THAT BULK OF THE PHP365,997,915.00 WITHDRAWN FROM
THE PHILIPPINE CHARITY SWEEPSTAKES OFFICE'S (PCSO) CIF WERE DIVERTED TO THE ARROYO-HEADED
OFFICE OF THE PRESIDENT.

C. ARROYO AND AGUAS, BY INDISPENSABLE COOPERATION, IN CONSPIRACY WITH THEIR COACCUSED IN

SB-12-CRM-0174, COMMITTED PLUNDER VIA· A COMPLEX ILLEGAL SCHEME WHICH DEFRAUDED PCSO IN
HUNDREDS OF MILLIONS OF PESOS.

D. EVEN ASSUMING THAT THE ELEMENTS OF PLUNDER WERE NOT PROVEN BEYOND REASONABLE
DOUBT, THE EVIDENCE PRESENTED BY THE PEOPLE SHOWS, BEYOND REASONABLE DOUBT, THAT
ARROYO, AGUAS AND THEIR COACCUSED IN SB-12-CRM-0174 ARE GUILTY OF MALVERSATION.2

In contrast, the petitioners submit that the decision has effectively barred the consideration and granting of the motion for
reconsideration of the State because doing so would amount to the re-prosecution or revival of the charge against them despite
their acquittal, and would thereby violate the constitutional proscription against double jeopardy.

Petitioner Gloria M. Macapagal-Arroyo (Arroyo) points out that the State miserably failed to prove the corpus delicti  of plunder; that
the Court correctly required the identification of the main plunderer as well as personal benefit on the part of the raider of the public
treasury to enable the successful prosecution of the crime of plunder; that the State did not prove the conspiracy that justified her
inclusion in the charge; that to sustain the case for malversation against her, in lieu of plunder, would violate her right to be
informed of the accusation against her because the information did not necessarily include the crime of malversation; and that
even if the information did so, the constitutional prohibition against double jeopardy already barred the re-opening of the case for
that purpose.

Petitioner Benigno B. Aguas echoes the contentions of Arroyo in urging the Com1 to deny the motion for reconsideration.
In reply, the State avers that the prohibition against double jeopardy does not apply because it was denied its day in court, thereby
rendering the decision void; that the Court should re-examine the facts and pieces of evidence in order to find the petitioners guilty
as charged; and that the allegations of the information sufficiently included all that was necessary to fully inform the petitioners of
the accusations against them.

Ruling of the Court

The Court DENIES the motion for reconsideration for its lack of merit.

To start with, the State argues' that the consolidated petitions for certiorari  were improper remedies in light of Section 23, Rule 119
of the Rules of Court  expressly prohibiting the review of the denial of their demurrer prior to the judgment in the case either by
appeal or by certiorari;  that the Court has thereby limited its own power, which should necessarily prevent the giving of due course
to the petitions for certiorari, as well as the undoing of the order denying the petitioners' demurrer to evidence; that the proper
remedy under the Rules of Court was for the petitioners to proceed to trial and to present their evidence-in-chief thereat; and that
even if there had been grave abuse of discretion attending the denial, the Court's certiorari powers should be exercised only upon
the petitioners' compliance with the stringent requirements of Rule 65, particularly with the requirement that there be no plain,
speedy or adequate remedy in the ordinary course of law, which they did not establish.

Section 23, Rule 119 of the Rules of Court,  pertinently provides:

Section 23. Demurrer to evidence.  – xxx

xxxx

The order denying the motion for leave of court to file demurrer to evidence or the demurrer itself shall not be reviewable
by appeal or by certiorari before judgment. (n)

The argument of the State, which is really a repetition of its earlier submission, was squarely resolved in the decision, as follows:

The Court holds that it should take cognizance of the petitions for certiorari because the Sandiganbayan, as shall
shortly be demonstrated, gravely abused its discretion amounting to lack or excess of jurisdiction.

The special civil action for certiorari is generally not proper to assail such an interlocutory order issued by the trial court because of
the availability of another remedy in the ordinary course of law. Moreover, Section 23, Rule 119 of the Rules of Court  expressly
provides that "the order denying the motion for leave of court to file demurrer to evidence or the demurrer itself shall not be
reviewable by appeal or by certiorari before judgment." It is not an insuperable obstacle to this action, however, that the denial of
the demurrers to evidence of the petitioners was an interlocutory order that did not terminate the proceedings, and the proper
recourse of the demurring accused was to go to trial, and that in case of their conviction they may then appeal the conviction, and
assign the denial as among the errors to be reviewed. Indeed, it is doctrinal that the situations in which the writ of certiorari  may
issue should not be limited, because to do so -

x x x would be to destroy its comprehensiveness and usefulness. So wide is the discretion of the com1 that authority is not wanting
to show that certiorari  is more discretionary than either prohibition or mandamus. In the exercise of our superintending control
over other courts, we are to be guided by all the circumstances of each particular case 'as the ends of justice may
require.' So it is that the writ will be granted where necessary to prevent a substantial wrong or to do substantial justice.

The Constitution itself has imposed upon the Court and the other courts of justice the duty to correct errors of jurisdiction as a result
of capricious, arbitrary, whimsical and despotic exercise of discretion by expressly incorporating in Section 1 of Article VIII the
following provision:

Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law.

Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally
demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to
lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. The exercise of this power
to correct grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government cannot be thwarted by rules of procedure to the contrary or for the sake of the
convenience of one side. This is because the Court has the bounden constitutional duty to strike down grave abuse of
discretion whenever  and wherever it is committed. Thus, notwithstanding the interlocutory character and effect of the
denial of the demurrers to evidence, the petitioners as the accused could avail themselves of the remedy
of certiorari  when the denial was tainted with grave abuse of discretion. As we shall soon show, the Sandiganbayan as
the trial court was guilty of grave abuse of discretion when it capriciously denied the demurrers to evidence despite the
absence of competent and sufficient evidence to sustain the indictment for plunder, and despite the absence of the
factual bases to expect a guilty verdict.3

We reiterate the foregoing resolution, and stress that the prohibition contained in Section 23, Rule 119 of the Rules of Court  is not
an insuperable obstacle to the review by the Court of the denial of the demurrer to evidence through certiorari.  We have had many
rulings to that effect in the past. For instance, in Nicolas v. Sandiganbayan,4the Court expressly ruled that the petition
for certiorari was the proper remedy to assail the denial of the demurrer to evidence that was tainted with grave abuse of discretion
or excess of jurisdiction, or oppressive exercise of judicial authority.

Secondly, the State submits that its right to due process was violated because the decision imposed additional elements for
plunder that neither ' Republic Act No. 7080 nor jurisprudence had theretofore required, i.e.,  the identification of the main
plunderer, and personal benefit on the part of the accused committing the predicate crime of raid on the public treasury. The State
complains that it was not given the opportunity to establish such additional elements; that the imposition of new elements further
amounted to judicial legislation in violation of the doctrine of separation of powers; that the Court nitpicked on the different
infirmities of the information despite the issue revolving only around the sufficiency of the evidence; and that it established all the
elements of plunder beyond reasonable doubt.

The State cites the plain meaning rule to highlight that the crime of plunder did not require personal benefit on the part of the raider
of the public treasury. It insists that the definition of raids on the public treasury, conformably with the plain meaning rule, is the
taking of public money through fraudulent or unlawful means, and such definition does not require enjoyment or personal benefit
on the part of plunderer or on the part of any of his co-conspirators for them to be convicted for plunder.

The submissions of the State are unfounded.

The requirements for the identification of the main plunderer and for personal benefit in the predicate act of raids on the public
treasury  have been written in R.A. No. 7080 itself as well as embedded in pertinent jurisprudence. This we made clear in the
decision, as follows:

A perusal of the information suggests that what the Prosecution sought to show was an implied conspiracy to commit plunder
among all of the accused on the basis of their collective actions prior to, during and after the implied agreement. It is notable that
the Prosecution did not allege that the conspiracy among all of the accused was by express agreement, or was a wheel conspiracy
or a chain conspiracy.

This was another fatal flaw of the Prosecution.

In its present version, under which the petitioners were charged, Section 2 of Republic Act No. 7080 (Plunder Law) states:

Section 2. Definition of the Crime of Plunder: Penalties. - Any public officer who, by himself or in connivance with members of his
family, relatives by affinity or consanguinity, business associates, subordinates or other persons, amasses, accumulates or
acquires ill-gotten wealth through a combination or series of overt criminal acts as described in Section 1 (d) hereof in the
aggregate amount or total value of at least Fifty million pesos (₱50,000,000.00) shall be guilty of the crime of plunder and shall be
punished by reclusion perpetua to death. Any person who participated with the said public officer in the commission of an offense
contributing to the crime of plunder shall likewise be punished for such offense. In the imposition of penalties, the degree of
participation and the attendance of mitigating and extenuating circumstances, as provided by the Revised Penal Code, shall be
considered by the court. The court shall declare any and all ill-gotten wealth and their interests and other incomes and assets
including the properties and shares of stocks derived from the deposit or investment thereof forfeited in favor of the State. [As
Amended by Section 12, Republic Act No. 7659 (The Death Penalty Law)]

Section l(d) of Republic Act No. 7080 provides:

Section 1. Definition of terms.  - As used in this Act, the term:

xxxx
d. "Ill-gotten wealth" means any asset, property, business enterprise or material possession of any person within the purview of
Section two (2) hereof, acquired by him directly or indirectly through dummies, nominees, agents, subordinates and/or business
associates by any combination or series of the following means or similar schemes:

1. Through misappropriation, conversion, misuse, or malversation of public funds or raids on the public treasury;

2. By receiving, directly or indirectly, any commission, gift, share, percentage, kickbacks or any/or entity in connection with
any government contract or project or by reason of the office or position of the public officer concerned;

3. By the illegal or fraudulent conveyance or disposition of assets belonging to the National Government or any of its
subdivisions, agencies or instrumentalities or government-owned or controlled corporations and their subsidiaries;

4. By obtaining, receiving or accepting directly or indirectly any shares of stock, equity or any other form of interest or
participation including the promise of future employment in any business enterprise or undertaking;

5. By establishing agricultural, industrial or commercial monopolies or other combinations and/or implementation of

decrees and orders intended to benefit particular persons or special interests; or

6. By taking undue advantage of official positi0n, authority, relationship, connection or influence to unjustly enrich himself
or themselves at the expense and to the damage and prejudice

The law on plunder requires that a particular public officer must be identified as the one who amassed, acquired or
accumulated ill-gotten wealth because it plainly states that plunder is committed by any public officer who, by himself or
in connivance with members of his family, relatives by affinity or consanguinity, business associates, subordinates or
other persons, amasses, accumulates or acquires ill-gotten wealth in the aggregate amount or total value of at least
₱50,000,000.00 through a combination  or series of overt criminal acts as described in Section l(d) hereof. Surely, the law
requires in the criminal charge for plunder against several individuals that there must be a main plunderer and her co-
conspirators, who may be members of her family, relatives by affinity or consanguinity, business associates,
subordinates or other persons. In other words, the allegation of the wheel conspiracy or express conspiracy in the
information was appropriate because the main plunderer would then be identified in either manner. Of course, implied
conspiracy could also identify the main plunderer, but that fact must be properly alleged and duly proven by the
Prosecution.

This interpretation is supported by Estrada v. Sandiganbayan, where the Court explained the nature of the conspiracy charge and
the necessity for the main plunderer for whose benefit the amassment, accumulation and acquisition was made, thus:

There is no denying the fact that the "plunder of an entire nation resulting in material damage to the national economy" is made up
of a complex and manifold network of crimes. In the crime of plunder, therefore, different parties may be united by a common
purpose. In the case at bar, the different accused and their different criminal acts have a commonality - to help the former
President amass, accumulate or acquire ill-gotten wealth. Sub-paragraphs (a) to (d) in the Amended Information alleged the
different participation of each accused in the conspiracy. The gravamen of the conspiracy charge, therefore, is not that each
accused agreed to receive protection money from illegal gambling, that each misappropriated a portion of the tobacco excise tax,
that each accused ordered the GSIS and SSS to purchase shares of Belle Corporation and receive commissions from such sale,
nor that each unjustly enriched himself from commissions, gifts and kickbacks; rather, it is that each of them, by their individual
acts, agreed to participate, directly or indirectly, in the amassing, accumulation and acquisition of ill-gotten wealth of
and/or for former President Estrada. 5 [bold underscoring supplied for emphasis]

Indeed, because plunder is a crime that only a public official can commit by amassing, accumulating, or acquiring ill-gotten wealth
in the aggregate amount or total value of at least ₱50,000,000.00, the identification in the information of such public official as the
main plunderer among the several individuals thus charged is logically necessary under the law itself. In particular reference to
Criminal Case No. SB-12-CRM-0174, the individuals charged therein - including the petitioners - were 10 public officials; hence, it
was only proper to identify the main plunderer or plunderers among the 10 accused  who herself or himself had amassed,
accumulated, or acquired ill-gotten wealth with the total value of at least ₱50,000,000.00.

The phrase raids on the public treasury  as used in Section 1 (d) of R. A. No. 7080 is itself ambiguous. In order to ascertain the
objective meaning of the phrase, the act of raiding the public treasury cannot be divided into parts. This is to differentiate the
predicate act of raids on the public treasury  from other offenses involving property, like robbery, theft, or estafa. Considering that
R.A. No. 7080 does not expressly define this predicate act, the Court has necessarily resorted to statutory construction. In so
doing, the Court did not adopt the State's submission that personal benefit on the part of the accused need not be alleged and
shown because doing so would have defeated the clear intent of the law itself,6 which was to punish the amassing, accumulating,
or acquiring of ill-gotten wealth in the aggregate amount or total value of at least ₱50,000,000.00 by any combination or series of
acts of misappropriation, conversion, misuse, or malversation of public funds or raids on the public treasury.

As the decision has observed, the rules of statutory construction as well as the deliberations of Congress indicated the intent of
Congress to require personal benefit for the predicate act of raids on the public treasury, viz.:

The phrase raids on the public treasury  is found in Section 1 (d) of R.A. No. 7080, which provides:

Section l .Definition of Terms.  – xxx

xxxx

d) Ill-gotten wealth means any asset, property, business enterprise or material possession of any person within the purview of
Section Two (2) hereof, acquired by him directly or indirectly through dummies, nominees, agents, subordinates and/or business
associates by any combination or series of the following means or similar schemes:

1) Through misappropriation, conversion, misuse, or malversation of public funds or raids on the public treasury;

xxxx

To discern the proper import of the phrase raids on the public treasury,  the key is to look at the accompanying
words: misappropriation, conversion, misuse or malversation of public funds. This process is conformable with the
maxim of statutory construction noscitur a sociis, by which the correct construction of a particular word or phrase that
is ambiguous in itself or is equally susceptible of various meanings may be made by considering the company of the
words in which the word or phrase is found or with which it is associated. Verily, a word or phrase in a statute is always
used in association with other words or phrases, and its meaning may, therefore, be modified or restricted by the latter.

To convert connotes the act of using or disposing of another's property as if it were one's own; to misappropriate  means to own, to
take something for one's own benefit; misuse means "a good, substance, privilege, or right used improperly, unforccably, or not as
intended;" and malversation occurs when "any public officer who, by reason of the duties of his office, is accountable for public
funds or property, shall appropriate the same or shall take or misappropriate or shall consent, through abandonment or negligence,
shall permit any other person to take such public funds, or property, wholly or partially." The common thread that binds all the four
terms together is that the public officer used the property taken. Considering that raids on the public treasury is in the company of
the four other terms that require the use of the property taken, the phrase raids on the public treasury  similarly requires such use of
the property taken. Accordingly, the Sandiganbayan gravely erred in contending that the mere accumulation and gathering
constituted the forbidden act of raids on the public treasury.  Pursuant to the maxim of noscitur a sociis, raids on the public
treasury  requires the raider to use the property taken impliedly for his personal benefit.7

The Prosecution asserts that the Senate deliberations removed personal benefit as a requirement for plunder. In not requiring
personal benefit, the Sandiganbayan  quoted the following exchanges between Senator Enrile and Senator Tafiada, viz.:

Senator Enrile. The word here, Mr. President, "such public officer or person who conspired or knowingly benefited". One does
not have to conspire or rescheme. The only element needed is that he "knowingly benefited". A candidate for the Senate for
instance, who received a political contribution from a plunderer, knowing that the contributor is a plunderer and therefore, he
knowingly benefited from the plunder, would he also suffer the penalty, Mr. President, for life imprisonment?

Senator Tafiada. In the committee amendments, Mr. President, we have deleted these lines 1 to 4 and part of line 5, on page 3.
But, in a way, Mr. President, it is good that the Gentleman is bringing out these questions, I believe that under the examples he has
given, the Court will have to...

Senator Enrile. How about the wife, Mr. President, he may not agree with the plunderer to plunder the country but because she is a
dutiful wife or a faithful husband, she has to keep her or his vow of fidelity to the spouse. And, of course, she enjoys the benefits
out of the plunder. Would the Gentleman now impute to her or him the crime of plunder simply because she or he knowingly
benefited out of the fruits of the plunder and, therefore, he must suffer or he must suffer the penalty of life imprisonment?

The President. That was stricken out already in the Committee amendment.
Senator Tañada. Yes, Mr. President. Lines 1 to 4 and part of line 5 were stricken out in the Committee amendment. But, as I said,
the examples of the Minority Floor Leader are still worth spreading the Record.  And, I believe that in those examples, the Court will
have just to take into consideration all the other circumstances prevailing in the case and the evidence that will be submitted.

The President. In any event, 'knowingly benefited' has already been stricken off."

The exchanges between Senator Enrile and Senator Tañada reveal, therefore, that what was removed from the coverage of the
bill and the final version that eventually became the law was a person who was not the main plunderer or a co-conspirator, but one
who personally benefited from the plunderers' action. The requirement of personal benefit on the part of the main plunderer or his
co-conspirators by virtue of their plunder was not removed.

As a result, not only did the Prosecution fail to show where the money went but, more importantly, that GMA and Aguas had
personally benefited from the same. Hence, the Prosecution did not prove the predicate act of raids on the public treasury  beyond
reasonable doubt. 8

Thirdly, the State contends that the Court did not appreciate the totality of its evidence, particularly the different irregularities
committed in the disbursement of the PCSO funds, i.e.,  the commingling of funds, the non-compliance with LOI No. 1282, and the
unilateral approval of the disbursements. Such totality, coupled with the fact of the petitioners' indispensable cooperation in the
pilfering of public funds, showed the existence of the conspiracy to commit plunder among all of the accused.

The contention lacks basis.

As can be readily seen from the decision, the Court expressly granted the petitioners' respective demurrers to evidence and
dismissed the plunder case against them for insufficiency of evidence because:

x x x the Sandiganbayan  as the trial court was guilty of grave abuse of discretion when it capriciously denied the demurrers to
evidence despite the absence of competent and sufficient evidence to sustain the indictment for plunder, and despite the
absence of the factual bases to expect a guilty verdict. 9

Such disposition of the Court fully took into consideration all the evidence adduced against the petitioners. We need not rehash
our review of the evidence thus adduced, for it is enough simply to stress that the Prosecution failed to establish the corpus
delicti of plunder - that any or all of the accused public officials, particularly petitioner Arroyo, had amassed, accumulated, or
acquired ill-gotten wealth in the aggregate amount or total value of at least ₱50,000,000.00.

Fourthly, in accenting certain inadequacies of the allegations of the information, the Court did not engage in purposeless nitpicking,
and did not digress from the primary task of determining the sufficiency of the evidence presented by the State against the
petitioners. What the Court thereby intended to achieve was to highlight what would have been relevant in the proper  prosecution
of plunder and thus enable itself to discern and determine whether the evidence of guilt was sufficient or not. In fact, the Court
categorically clarified that in discussing the essential need for the identification of the main plunderer it was not harping on the
sufficiency of the information, but was only enabling itself to search for and to find the relevant proof that unequivocally showed
petitioner Arroyo as the "mastermind" - which was how the Sandiganbayan had characterized her participation - in the context of
the implied conspiracy alleged in the information. But the search came to naught, for the information contained nothing that averred
her commission of the overt act necessary to implicate her in the supposed conspiracy to commit the crime of plunder. Indeed, the
Court assiduously searched for but did not find the sufficient incriminatory evidence against the petitioners. Hence, the
Sandiganbayan capriciously and oppressively denied their demurrers to evidence.

Fifthly, the State posits that it established at least a case for malversation against the petitioners.

Malversation is defined and punished under Article 217 of the Revised Penal Code,  which reads thusly:

Article 217. Malversation of public funds or property; Presumption of malversation. - Any public officer who, by reason of the duties
of his office, is accountable for public funds or property, shall appropriate the same or shall take or misappropriate or shall consent,
through abandonment or negligence, shall permit any other person to take such public funds, or property, wholly or partially, or
shall otherwise be guilty of the misappropriation or malversation of such funds or property, shall suffer:

1. The penalty of prision correccional  in its medium and maximum periods, if the amount involved in the misappropriation
or malversation does not exceed two hundred pesos.
 2. The penalty of prision mayor in its minimum and medium periods, if the amount involved is more than two hundred
pesos but does not exceed six thousand pesos.

3. The penalty of prision mayor in its maximum period to reclusion temporal in its minimum period, if the amount involved
is more than six thousand pesos but is less than twelve thousand pesos.

4. The penalty of reclusion temporal,  in its medium and maximum periods, if the amount involved is more than twelve
thousand pesos but is less than twenty-two thousand pesos. If the amount exceeds the latter, the penalty shall
be reclusion temporal  in its maximum period to reclusion perpetua.

In all cases, persons guilty of malversation shall also suffer the penalty of perpetual special disqualification and a fine equal to the
amount of the funds malversed or equal to the total value of the property embezzled.

The failure of a public officer to have duly forthcoming any public funds or property with which he is chargeable, upon demand by
any duly authorized officer, shall be prima facie  evidence that he has put such missing funds or property to personal use. (As
amended by RA 1060).

The elements of malversation are that: (a) the offender is an accountable public officer; (b) he/she is responsible for the
misappropriation of public funds or property through intent or negligence; and (c) he/she has custody of and received such funds
and property by reason of his/her office. 10

The information in Criminal Case No. SB-12-CRM-017411 avers:

The undersigned Assistant Ombudsman and Graft Investigation and Prosecution Officer III, Office of the Ombudsman, hereby
accuse GLORIA MACAPAGAL-ARROYO, ROSARIO C. URIARTE, SERGIO O. VALENCIA, MANUEL L. MORATO, JOSE R.
TARUC V, RAYMUNDO T. ROQUERO, MA. FATIMA AS. VALDES, BENIGNO B. AGUAS, REYNALDO A. VILLAR and NILDA
B. PLARAS, of the crime of PLUNDER, as defined by, and penalized under Section 2 of Republic Act (R.A.) No. 7080, as
amended by R.A. No. 7659, committed, as follows:

That during the period from January 2008 to June 2010 or sometime prior or subsequent thereto, in Quezon City, Philippines, and
within the jurisdiction of this Honorable Court, accused GLORIA MACAPAGAL-ARROYO, then the President of the Philippines,
ROSARIO C. URIARTE, then General Manager and Vice Chairman, SERGIO 0. VALENCIA, then Chairman of the Board of
Directors, MANUEL L. MORA TO, JOSE R. TARUC V, RAYMUNDO T. ROQUERO, MA. FATIMA AS. VALDES, then members
of the Board of Directors, BENIGNO B. AGUAS, then Budget and Accounts Manager, all of the Philippine Charity Sweepstakes
Office (PCSO), REYNALDO A. VILLAR, then Chairman, and NILDA B. PLARAS, then Head of Intelligence/Confidential Fund
Fraud Audit Unit, both of the Commission on Audit, all public officers committing the offense in relation to their respective offices
and taking undue advantage of their respective official positions, authority, relationships, connections or influence, conniving,
conspiring and confederating with one another, did then and there willfully, unlawfully and criminally 'amass,, accumulate and/or
acquire directly or indirectly, ill-gotten wealth in the aggregate amount or total value of THREE HUNDRED SIXTY FIVE MILLION
NINE HUNDRED NINETY SEVEN THOUSAND NINE HUNDRED FIFTEEN PESOS (PHP365,997,915.00), more or less,
through any or a combination or a series of overt or criminal acts, or similar schemes or means, described as follows:

(a) diverting in several instances, funds from the operating budget of PCSO to its Confidential/Intelligence Fund that could
be accessed and withdrawn at any time with minimal restrictions, and converting, misusing, and/or illegally conveying or
transferring the proceeds drawn from said fund in the aforementioned sum, also in several instances, to themselves, in the
guise of fictitious expenditures, for their personal gain and benefit;

(b) raiding the public treasury by withdrawing and receiving, in several instances, the above-mentioned amount from the
Confidential/Intelligence Fund from PCSO's accounts, and or unlawfully transferring or conveying the same into their
possession and control through irregularly issued disbursement vouchers and fictitious expenditures; and

(c) taking advantage of their respective official positions, authority, relationships, connections or influence, in several
instances, to unjustly enrich themselves in the aforementioned sum, at the expense of, and the damage and prejudice of
the Filipino people and the Republic of the Philippines.

CONTRARY TO LAW.
In thereby averring the predicate act of malversation, the State did not sufficiently allege the aforementioned essential elements of
malversation in the information. The omission from the information of factual details descriptive of the aforementioned elements of
malversation highlighted the insufficiency of the allegations. Consequently, the State's position is entirely unfounded.

Lastly, the petitioners insist that the consideration and granting of the motion for reconsideration of the State can amount to a
violation of the constitutional prohibition against double jeopardy because their acquittal under the decision was a prior jeopardy
within the context of Section 21, Article III (Bill of Rights) of the 1987 Constitution, to wit:

Section 21. No person shall be twice put in jeopardy of punishment for the same offense. If an act is punished by a law and an
ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same act.

The insistence of the petitioners is fully warranted. Indeed, the consideration and granting of the motion for reconsideration of the
State will amount to the violation of the constitutional guarantee against double jeopardy.

The Court's consequential dismissal of Criminal Case No. SB-12- CRM-0174 as to the petitioners for insufficiency of
evidence  amounted to their acquittal  of the crime of plunder charged against them. In People v. Tan,  12the Court shows why:

In People v. Sandiganbayan, this Com1 explained the general rule that the grant of a demurrer to evidence operates as an
acquittal and is, thus, final and unappealable, to wit:

The demurrer to evidence in criminal cases, such as the one at bar, is ''filed after the prosecution had rested its
case," and when the same is granted, it calls "for an appreciation of the evidence adduced by the prosecution and its
sufficiency to warrant conviction beyond reasonable doubt, resulting in a dismissal of the case on the merits,
tantamount to an acquittal of the accused."  Such dismissal of a criminal case by the grant of demurrer to evidence may
not be appealed, for to do so would be to place the accused in double jeopardy. The verdict being one of acquittal, the
case ends there.

xxxx

The rule on double jeopardy, however, is not without exceptions. In People v. Laguio, Jr., this Court stated that the only instance
when double jeopardy will not attach is when the RTC acted with grave abuse of discretion, thus:

... The only instance when double ,jeopardy will not attach is when the trial court acted with grave abuse of discretion amounting to
lack or excess of jurisdiction, such as where the prosecution was denied the opportunity to present its case or where the trial was a
sham. However, while certiorari  may be availed of to correct an erroneous acquittal, the petitioner in such an extraordinary
proceeding must clearly demonstrate that the trial court blatantly abused its authority to a point so grave as to deprive it of its very
power to dispense justice. 13

The constitutional prohibition against placing a person under double jeopardy for the same offense bars not only a new and
independent prosecution but also an appeal in the same action after jeopardy had attached. 14 As such, every acquittal becomes
final immediately upon promulgation  and cannot be recalled for correction or amendment. With the acquittal being immediately
final, granting the State's motion for reconsideration in this case would violate the Constitutional prohibition against double jeopardy
because it would effectively reopen the prosecution and subject the petitioners to a second jeopardy despite their acquittal.

It is cogent to remind in this regard that the Constitutional prohibition against double jeopardy provides to the accused three related
protections, specifically: protection against a second prosecution for the same offense after acquittal; protection against a second
prosecution for the same offense after conviction; and protection against multiple punishments for the same offense.  15The
rationale for the three protections is expounded in United States v. Wilson:  16

The interests underlying these three protections arc quite similar. When a defendant has been once convicted and
punished for a particular crime, principles of fairness and finality require that he not be subjected to the possibility of
further punishment by being again tried or sentenced for the same offense. Ex pa rte Lange, 18 Wall 163 (1874); In re
Nielsen, 131 U.S. 176 (1889). When a defendant has been acquitted of an offense, the Clause guarantees that the State
shall not be permitted to make repeated attempts to convict him,

"thereby subjecting him to embarrassment, expense and ordeal, and compelling him to live in a continuing state of
anxiety and insecurity, as well as enhancing the possibility that, even though innocent, he may be found guilty."

Green v. United States,  355 U.S. 184, 187-188 (1957).

The policy of avoiding multiple trials has been regarded as so important that exceptions to the principle have been only
grudgingly allowed. Initially, a new trial was thought to be unavailable after appeal, whether requested by the prosecution
or the defendant. See United States v. Gibert, 25 F. Cas. 1287 (No. 15,204) (CCD Mass. 1834) (Story, J.). It was not until 1896
that it was made clear that a defendant could seek a new trial after conviction, even though the Government enjoyed no
similar right. United States v. Ball,  163 U.S. 662. (Bold underscoring supplied for emphasis)

WHEREFORE, the Court DENIES the motion for reconsideration for lack of merit.

SO ORDERED.

G. R. No. 94555 August 17, 1992

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
EDUARDO LABALAN OCIMAR and ALEXANDER CORTEZ MENDOZA, accused-appellants.

EDUARDO LABALAN OCIMAR and ALEXANDER CORTEZ MENDOZA, together with ALFONSO RAMOS BERMUDEZ,
ALBERTO VENZIO CRUZ, VENZIO CRUZ alias  "BOY PANA" and JOHN DOE alias  "BUNSO" were charged in the court a
quo for violation of P.D. 532, otherwise known as the "Anti-Piracy and Highway Robbery Law of 1974," in an Information alleging
that —

. . . on or about the 19th of October, 1986, in . . . Balagtas . . . Bulacan . . . the said accused Eduardo Labalan
Ocimar, Alfonso Ramos Bermudez, Alberto Venzio Cruz and Alexander Cortez Mendoza, together with Venzio
Cruz alias "Boy Pana" and one John Doe alias "Bunso" . . . conspiring and confederating together . . . did then
and there wilfully, unlawfully and feloniously, with intent of gain and by means of force, violence and
intimidation . . . take, rob and carry away with them cash money, jewelries and other valuables amounting to
P36,100.00 more or less, belonging to the passengers and driver of the Baliuag Transit, Alejandro de Jesus,
while he was driving the said bus along the North Expressway . . . and that on the occasion thereof, the said
accused, in furtherance of their conspiracy, did then and there wilfully, unlawfully and feloniously attack, assault
and shoot . . . Capt. Cirilo Cañeba, an Army Officer . . . thereby inflicting upon him serious physical injuries which
directly caused his death. 1

On June 22, 1987, accused Eduardo Ocimar and Alexander Mendoza were arraigned. With the assistance of counsel de oficio,
they pleaded "Not Guilty". 2 The other accused were not arraigned because they could not be accounted for.

On July 7, 1987, Alfonso Bermudez was finally brought before the court. He was accordingly arraigned and with the assistance
likewise of counsel de oficio, he entered a plea of "Guilty". 3

The other two accused, Alberto Venzio Cruz and Venzio Cruz alias  "Boy Pana", were never arraigned as the former was never
arrested, while the latter jumped bail before arraignment. 4

On October 28, 1987, after the prosecution had already presented four witnesses, the prosecuting Fiscal moved for the discharge
of accused Bermudez to be utilized as state witness. Although he had already entered a plea of guilt earlier, no judgment was as
yet rendered against him.

On November 9, 1987, the trial court granted the motion of the prosecution for the discharge of Bermudez. On March 21, 1988,
after he testified for the prosecution, Bermudez was released. 5

On April 3, 1990, the trial court rendered judgment finding accused Eduardo Labalan Ocimar and Alexander Cortez Mendoza
guilty beyond reasonable doubt as co-principals in the violation of P.D. 532 and accordingly sentenced each of them to reclusion
perpetua, and directing them jointly and severally to indemnify the heirs of the late Capt. Cirilo Cañeba, Jr., the amount of
P30,000.00 for his death, P45,000.00 for funeral expenses, P25,000.00 for moral damages, and P720,000.00 representing loss of
expected support of the victim's heirs, plus the costs. 6

Accused Ocimar and Mendoza are now before Us on appeal.

Ocimar imputes ERROR to the court a quo in (a) discharging accused Bermudez, who had earlier pleaded guilty to the charge, to
be utilized as a state witness; (b) giving credence to the testimony of Bermudez; and, (c) not holding that the prosecution failed to
prove his (Ocimar) guilt beyond reasonable doubt.
On his part, accused Mendoza maintains that the lower court ERRED in (a) relying on the lone testimony of accused Bermudez;
and, (b) convicting him (Mendoza) notwithstanding the failure of the prosecution to prove his guilt.

Considering the peculiar circumstances attendant to the commission of the offense and in order to meet squarely the issues raised
by accused Ocimar and Mendoza, We prefer to quote hereunder the findings of fact of the trial court, which makes a detailed
account of the participation of each accused in the perpetration of the highway robbery. We are not usually prone to lift extensively
word for word from narration of facts in decisions of lower courts elevated to Us, but in the instant case We resolve to, in view of
the accurate and systematic reporting done by the trial court. Its factual findings are well backed up by the evidence on record,
hence, We need not improve on them. Besides, it is an entrenched rule that the matter of assigning value to declarations at the
witness stand is best and most competently performed by the trial judge who, unlike appellate magistrates, can weigh such
testimony in the light of the declarant's demeanor, conduct and attitude at the trial, and is thereby placed in a more competent
position to discriminate between the true and the false. 7 Thus, as vividly reported by the court a quo —

At around 3:00 o'clock in the afternoon of October 19, 1986, Bermudez was fetched from his house in Amparo
Capri, Novaliches, Quezon City by Eduardo Ocimar, Alexander Mendoza and others he knew only by their first
names (Boy Pana, Bunso, Danny and Boylot) who invited him to a supposed drinking session at a place
somewhere in Sta. Maria, Bulacan. It turned out that the said place served as a hide-out for the group. The
contemplated drinking session in that hide-out did not take place. Instead, the members of the group were given
instructions by one "Boy Pana" on their seating arrangements inside the bus they intended to hold-up shortly
thereafter.

Not long afterwards, the group (this time in the company of additional persons named Fred Paraiso, Bebot,
Beboy Baya, Fermin, Noel, Boboy and Agoy) boarded at the Malinta, Valenzuela (Metro Manila) toll gate of the
North Expressway a yellow-painted Novaliches-Blumentritt passenger jeepney and proceeded to the Baliuag
Transit bus terminal at Cubao, Quezon City.

Herein accused and their companions boarded an airconditioned Baliuag Transit passenger bus bound for
Cabanatuan City, and seated themselves in different places inside the vehicle according to their pre-arranged
plan. Bermudez seated himself somewhere at the middle portion of the bus, Ocimar and Bunso at the far end,
and Mendoza at the front behind the bus driver's seat. Each of them possessed a concealed firearm or bladed
weapon.

Not long after the bus had passed beyond the Malinta toll gate of the North Expressway, Mendoza rose from his
seat, poked a .38 cal. pistol at the bus driver, and announced the hold-up. Forthwith, the other members of the
group, with their respective weapons exposed to view, went about divesting the passengers of their wallets and
handbags, items of jewelry and other personal effects of value. While the robbery was in progress, Bermudez
heard gunshot reports from the rear end of the bus. He turned his head towards that direction and saw Ocimar
holding a .22 cal. magnum revolver pointed at the neck of a passenger seated at the back row of the bus (later
identified as Capt. Cirilo Cañeba, Jr.) who was then about to drop to the floor, head first. At the same spot, Bunso
was also seen standing close by with a gun on hand.

Upon reaching that portion of the Expressway with a concrete overpass somewhere in Burol, Balagtas (Bulacan),
Mendoza ordered the bus driver to stop the vehicle and, after the driver was ordered to proceed on his way, the
robbers alighted and boarded the same yellow-colored passenger jeepney which was already waiting at the
place to serve as a get-away transport. Aboard the passenger jeepney, the group fled to Bunso's house at
Catmon, Sta. Maria where Bermudez was given P1,000.00 cash by Boy Pana. After they divided the loot among
themselves, the robbers parted ways.

After the robbers alighted at Burol, the bus driver with his passengers proceeded to Tabang, Guiguinto (Bulacan)
where the incident was reported to the police station thereat. Said report was duly entered in the police blotter
(Exhibit A).

Eventually, Bermudez was arrested by the police authorities at Novaliches on November 4, 1986 and brought to
the Northern Police District station at Sikatuna Village, Quezon City where he executed a written statement
(Exhibit E; also marked Exhibit H) wherein he confessed his and his co-accused's participation in the highway
robbery.

Upon written request to this effect (Exhibit I), Dr. Dario L. Gajardo of the PC Crime Laboratory at Camp Crame,
Quezon City performed on October 20, 1986 at the PCCL morgue a  post-mortem examination of the cadaver of
Capt. Cirilo Cañeba, Jr., after it was first identified by one Capt. Isabelo Almonte. The corresponding medico-legal
 report prepared by Dr. Gajardo (Exhibit J) indicates that the aforenamed deceased sustained, among other
injuries, four (4) gunshot wounds, to wit, at the right temporal region, right clavicular region, left mammary region
and right iliac region (See also sketches marked as Exhibits K and K-1). As indicated in the same medico-legal
report, the cause of death of Capt. Cañeba was "cardiorespiratory arrest due to shook and hemorrhage
secondary to multiple gunshot wounds of the head and trunk." (Exhibit J-2). Accordingly, Dr. Gajardo issued the
corresponding Certificate of Death (Exhibit L).

Norma Diaz-Cañeba testified that she and the late Capt. Cirilo Cañeba, Jr. were married on December 31, 1980
at the Nuestra Señora dela Guadalupe Parish in President Quirino, Sultan Kudarat before Parish Priest Rev. Fr.
Domingo Tagura as evidenced by the corresponding Marriage Contract (Exhibit G). The couple have a daughter
named Belinda, five to six years of age at this time.

For the wake and funeral of her late husband, Mrs. Cañeba incurred expenses amounting to P45,000.00.

At the time of his death, Capt. Cañeba, Jr. (then 35 years old) was stationed at the Philippine Army Finance
Center in Fort Bonifacio receiving a monthly salary of "almost P3,000.00". When shot inside the Baliuag Transit
bus on that fateful day, the late military officer was on his way to Fort Magsaysay in Palayan City (Nueva Ecija)
on official business.

The testimony of State witness Bermudez was corroborated on material points by bus driver Alejandro de Jesus
and Philippine Army Major Fernando Zabat, one of the four (4) military officers aboard the same bus at the time
the highway robbery complained of was perpetrated, even as the latter witnesses could not identify any of the
hold-uppers. 8

Both Ocimar and Mendoza deny having any knowledge or participation in the commission of the crime imputed to them. They
claim that they were physically present in different places far from the scene of the crime. Alibi, in other words.

For his part, appellant Ocimar, a car painter residing at Sauyo, Novaliches, Quezon City, testified that on October 19, 1986, after
attending a morning mass with his wife and a child at the town proper of Novaliches, Quezon City, they returned home and spent
the whole day together.

On the other hand, accused Mendoza swore that from 8:00 A.M. to 9:00 P.M. of October 19, 1986, he reported for work, as a
helper electrician repairing television sets and electrical appliances at the shop of a certain Danilo Malaca located at Banlat,
Commonwealth Avenue, Quezon City. He renders service thereat from Monday to Saturday. His alibi was corroborated by his
employer who confirmed that Mendoza indeed performed a rush job on a television set on that date although only up to 3:00
o'clock in the afternoon. 9

On the propriety of the discharge of Bermudez to be utilized as state witness, Sec. 9, Rule 119 of the 1985 Rules on Criminal
Procedure provides:

Sec. 9. Discharge at accused to be state witness. — When two or more persons are jointly charged with the
commission of any offense, upon motion of the prosecution before resting its case, the court may direct one or
more of the accused to be discharged with their consent so that they may be witnesses for the state when after
requiring the prosecution to present evidence and the sworn statement of each proposed state witness at a
hearing in support of the discharge, the court is satisfied that: (a) There is absolute necessity for the testimony of
the accused whose discharge is requested: (b) There is no other direct evidence available for the proper
prosecution of the offense committed, except the testimony of said accused; (c) The testimony of said accused
can be substantially corroborated in its material points; (d) Said accused does not appear to be the most guilty;
(e) Said accused has not at any time been convicted of any offense involving moral turpitude.

As may be gleaned from the aforequoted Sec. 9 of Rule 119, the trial court must be satisfied that the conditions prescribed by the
rule exist. The court therefore, upon prior determination by the public prosecutor, retains the prerogative of deciding when a co-
accused may be discharged to become a state witness. With Sec. 9 providing the guidelines, the discharge of an accused
depends on sound judicial discretion. Once that discretion is exercised under those guidelines and a co-accused is discharged to
become a state witness, and subsequently testifies in accordance with his undertaking with the government, any legal deficiency or
defect that might have attended his discharge from the information will no longer affect the admissibility and credibility of his
testimony, provided such testimony is otherwise admissible an credible. 10

Ocimar contends that in the case at bar Bermudez does not satisfy the conditions for the discharge of a co-accused to become a
state witness. He argues that no accused in a conspiracy can lawfully be discharged and utilized as a state witness, for not one of
them could satisfy the requisite of appearing not to be the most guilty. Appellant assets that since accused Bermudez was part of
the conspiracy, he is equally guilty as the others.

We do not agree. First, there is absolute necessity for the testimony of Bermudez. For, despite the presentation of four (4) other
witnesses, none of them could positively identify the accused except Bermudez who was one of those who pulled the highway
heist which resulted not only in the loss of cash, jewelry and other valuables, but even the life of Capt. Cañeba, Jr. It was in fact the
testimony of Bermudez that clinched the case for the prosecution. Second, without his testimony, no other direct evidence was
available for the prosecution to prove the elements of the crime. Third, his testimony could be, as indeed it was, substantially
corroborated in its material points as indicated by the trial court in its well-reasoned decision. Fourth, he does not appear to be the
most guilty. As the evidence reveals, he was only invited to a drinking party without having any prior knowledge of the plot to stage
a highway robbery. But even assuming that he later became part of the conspiracy, he does not appear to be the most guilty. What
the law prohibits is that the most guilty will be set free while his co-accused who are less guilty will be sent to jail. And by "most
guilty" we mean the highest degree of culpability in terms of participation in the commission of the offense, and not
necessarily the severity of the penalty imposed. While all the accused may be given the same penalty by reason of
conspiracy, yet one may be considered least guilty if We take into account his degree of participation in the perpetration
of the offense. Fifth, there is no evidence that he has at any time been convicted of any offense involving moral turpitude.

Besides, the matter of discharging a co-accused to become state witness is left largely to the discretion of the trial fiscal, subject
only to the approval of the court. The reason is obvious. The fiscal should know better than the court, and the defense for that
matter, as to who of the accused would best qualify to be discharged to become state witness. The public prosecutor is supposed
to know the evidence in his possession ahead of all the rest. He knows whom he needs to establish his case.

The rationale for the rule is well explained thus:

In the discharge of a co-defendant, the court may reasonably be expected to err. Where such error is committed,
it cannot, as a general rule, be cured any more than any other error can be cured which results from an acquittal
of a guilty defendant in a criminal action. A trial judge cannot be expected or required to inform himself with
absolute certainty at the very outset of the trial as to everything which may be developed in the course of the trial
in regard to the guilty participation of the accused in the commission of the crime charged in the complaint. If that
were practicable or possible, there would be little need for the formality of a trial. In coming to his conclusions as
to the "necessity for the testimony of the accused whose discharge is requested," as to "availability or non-
availability of other direct or corroborative evidence," as to which (who) of the accused is the "most guilty" one,
and the like, the judge must rely in a large part upon the suggestions and the information furnished by the
prosecuting officer . . . . 11

Thus, We agree with the observations of the Solicitor General that the rule on the discharge of an accused to be utilized as state
witness clearly looks at his actual and individual participation in the commission of the crime, which may or may not have been
perpetrated in conspiracy with the other accused. Since Bermudez was not individually responsible for the killing committed on the
occasion of the robbery except by reason of conspiracy, it cannot be said then that Bermudez appears to be the most guilty.
Hence, his discharge to be a witness for the government is clearly warranted. 12

The credibility of Bermudez as a witness is placed on the crucible by appellants. They point to the inconsistency in his testimony on
whether or not he knew appellants before the commission of the crime and assert that that necessarily discredits the rest of his
testimony under the maxim  falsus in uno, falsus in omnibus. But We are reminded, time and again, that this is not mandatory. It
does not apply where there is sufficient corroboration on many grounds of the testimony; where the mistakes are not on the very
material points; where the errors do not arise from an apparent desire to pervert the truth but from innocent mistakes and the
desire of the witness to exculpate himself though not completely. 13 Indeed, We have long jettisoned its absolute application for the
better rule that the trial court is the best judge of the witness' credibility or lack of it. The reason is that the trial court is in a better
position to decide the question of credibility, having seen and heard the witnesses themselves and observed their behavior and
manner of testifying. The impressions of the trial court on the matter are binding upon appellate courts, the Supreme Court not
excepted, unless there appears a grave abuse of discretion or obvious misapprehension of facts. These exceptions to the rule do
not obtain in the instant case. We are thus in complete agreement with the trial court when it ruled —

The Court finds no reason at all to disbelieve the testimony of State witness Bermudez.

For one thing, it was Bermudez alone among the available accused who pleaded guilty at the very outset,
thereby signifying that he had actually participated in the highway robbery herein complained of. In turn, such
participation inexorably connotes, among other things, adequate knowledge on his part of the circumstances
leading to and surrounding the commission of the crime, including the identities of the other perpetrators involved
therein.
 The Court, too, has keenly observed that — despite its minor imperfections which may be ascribed to his low
educational attainment — the testimony of Bermudez was rendered in a manner more candid and unrehearsed
than the testimonies of Mendoza and Ocimar.

Furthermore, Mendoza and Ocimar themselves could not provide any improper or evil motive on the part of
Bermudez to have testified falsely as the defense would wish it to appear.

Tersely said, the identities of Mendoza and Ocimar as active participants in the accomplishment of the hold-up
herein referred to have been positively established.

It must be noted that Bermudez' account of the holdup incident is corroborated on material points by the other prosecution
witnesses, like the bus driver and some passengers, like Major Fernando Zabat, an officemate of Capt. Cañeba, thus enhancing
further the credibility of Bermudez.

Ocimar argues that he cannot be made liable for the crime charged as he did not shoot the victim and the prosecution failed to
identify the person who fired the fatal shot.

We need only quote again for emphasis a portion of the factual findings of the court a quo in this regard:

Not long after the bus had passed beyond the Malinta Toll Gate of the North Expressway, Mendoza rose from his
seat, poked a .38 cal. pistol at the bus driver, and announced the hold-up. Forthwith, the other members of the
group, with their respective weapons exposed to view, went about divesting the passengers of their wallets and
handbags, items of jewelry and other personal effects of value. While the robbery was in progress, Bermudez
heard gunshot reports from the rear end of the bus. He turned his head towards that direction and saw Ocimar
holding a .22 cal. magnum revolver pointed at the neck of a passenger seated at the back row of the bus (later
identified as Capt. Cirilo Cañeba, Jr.) who was then about to drop to the floor, head first. 14

Needless to stress, these circumstances are clear enough to show that appellant Ocimar acted in concert with his cohorts in the
implementation of a common design to rob the Baliuag Transit bus. As oft-repeated, conspiracy need not be proved by direct
evidence. Neither is it essential that there be shown a previous agreement to commit robbery as the crime of robbery with
homicide can be inferred from the acts of the accused. 15

Certainly, Ocimar's protestation that he cannot be held liable as there was no categorical identification of the assailant is simply
unavailing. For, where conspiracy has been established, evidence as to who among the accused rendered the fatal blow is not
necessary. 16 After all, in conspiracy, the rule is that the guilt of one is the guilt of all. 17

As to appellants' defense of alibi, suffice it to state that the places (Sauyo, Novaliches, and Banlat, Commonwealth Avenue, both in
Quezon City) where they claim to be at the time the crime was committed, are places which are not so far away from the Baliuag
bus station in Cubao, Quezon City. Indeed, for alibi to prosper, it is not enough to prove that the accused was somewhere else
when the crime was committed, but he must, likewise, demonstrate that he could not have been physically present at the place of
the crime or its immediate vicinity at the time of its commission.18

Now on the civil aspect of the case. We find the awards made by the trial court to be supported by the evidence on record. At any
rate, they are not disputed. However, as regards the indemnity to the heirs of Capt. Cirilo Cañeba, Jr., which the court a quo fixed
at P30,000.00, the same should be increased to P50,000.00, in accordance with prevailing jurisprudence. 19

PREMISES CONSIDERED, the judgment of the court a quo convicting the accused-appellants EDUARDO LABALAN OCIMAR
and ALEXANDER CORTEZ MENDOZA for violation of P.D. 532 ("Anti-Piracy and Highway Robbery Law of 1974") and imposing
upon each of them a prison term of reclusion perpetua, together with the award for funeral expenses, moral damages, and loss of
expected support of the heirs of the late Capt. Cirilo Cañeba, Jr., in the amounts of P45,000.00, P25,000.00 and P720,000.00,
respectively, are AFFIRMED. The indemnity to his heirs for his death is increased from P30,000.00 to P50,000.00. Costs against
accused-appellants.

SO ORDERED.
G.R. No. 108000 June 17, 1993

PEOPLE OF THE PHILIPPINES, petitioner,

vs.
THE COURT OF APPEALS, CHIEF INSPECTOR JOSE T. PRING, respondents.

On October 23, 1992, herein public respondent Court of Appeals in CA-G.R. No. 28933, entitled "Chief Inspector Jose T. Pring v.
Honorable Apolinario B. Santos as Judge of RTC of Pasig, Metro Manila, Branch 67 and People of the Philippines, et al.," annulled
and set aside the Order of the lower court granting the prosecution's motion to discharge accused Nonilo Arile to turn state witness.
Subject decision of October 23, 1992 held that:

xxx xxx xxx

In the case at bar, prior to the discharge of accused Nonilo Arile on September 8, 1992, there was no hearing by
the court on the motion to discharge. Records of the proceedings of the trial court on September 4, 1992, as
reflected in the order of the same date, merely show that the motion to discharge was deemed submitted for
resolution, without any hearing thereon. . . .

The People of the Philippines, thru the instant petition now assails the abovestated Decision, claiming the respondent appellate
court committed grave abuse of discretion in annulling and setting aside the discharge of accused Nonilo Arile from the information
in order to allow him to testify as state witness in the hearing for admission to bail of private respondent Jose Pring and the trial in
Criminal Case No. 94159 before the lower court.

Criminal Case No. 94159 is entitled "People of the Philippines v. Nonilo Arile, Jaime Serrano, Edmund Divinagracia, Jose Pring,
Timoteo Zarcal, Reynaldo Fernandez, Danilo Fernandez, Eddie Chang, Jose Sy and John Does." In said case, private respondent
herein, Jose Pring was among those charged with violation of Article 267 (kidnapping for Ransom) of the Revised Penal Code, in
an information filed on August 21, 1992 with the lower court.

Subsequent to the filing of the information, private respondent Jose Pring submitted his petition for bail, its hearing scheduled on
August 31, 1992 and September 2, 1992 at 2:00 P.M.

On August 28, 1992, the prosecution filed a motion to discharge accused Nonilo Arile to be a state witness, with notice of hearing
on September 4, 1992 at 8:30 A.M.

Another motion for issuance of bail, with notice of hearing on September 4, 1992 at 8:30 A.M. was filed on August 31, 1992 by
private respondent Jose Pring thru his counsel.

On the schedule hearing of the petition for bail on August 31, 1992, private respondent Jose Pring failed to appear although his
lawyers did. Upon joint motion by the prosecution and defense, the arraignment, pre-trial conference and hearing on the petition for
bail were re-set at 2:00 P.M. of September 4, 1992.

On September 1, 1992, the prosecution filed an opposition to the petition for bail and asked to defer the hearing thereof until the
resolution of the trial court of the motion to discharge accused Nonilo Arile, whose testimony is allegedly necessary to establish that
the evidence of evidence of guilt against private respondent Jose Pring is strong.

On September 4, 1992, counsels of private respondent Jose Pring filed his opposition to the motion to discharge accused Nonilo
Arile. At 2:00 P.M. of the same day, Criminal Case No. 94159 was called for arraignment, pre-trial and petition for bail, but only
accused Nonilo Arile appeared. Thus, the trial court issued the following order:

WHEREFORE, in view of the absence of the other accused, let arraignment and pre-trial conference be reset on
September 10,11,17, 18, 24 and 25, 1992, all at 2:00 o'clock in the afternoon. The motion to discharge accused
Nonilo Arile to be state witness is hereby considered submitted for resolution.

x x x           x x x          x x x

Having submitted for resolution the motion to discharge, thru the Order of September 4, 1992, the trial court September 8, 1992
issued an Order granting said motion. In discharging accused Nonilo Arile to be state witness, the trial court ratiocinated:
 Upon a careful examination of the Sworn Statement made by the accused Nonilo Arile and the other evidence of
the prosecution including other Sworn Statements of Jaime Serrano, accused Edmund Divinagracia, witness
Rogelino A. Morales (driver of the kidnapped victim) Chin Yi Tsou (father of the victim), this Court is satisfied that
the averment of the Government in its Motion to Discharge Accused Arile are borne out and fully supported by
the facts and relevant evidence.

The court, thus, found that the conditions for discharge as required under Sec. 9, Rule 119 of the 1985 Revised Rules on Criminal
Procedure have been satisfied.

Private respondent Jose Pring assailed the order of discharge, filing a special civil action for Certiorari and Prohibition with the
Court of Appeals.

In the hearing conducted by the appellate court on September 22, 1992, counsels of private respondent Jose Pring emphatically
stressed the trial court's failure to comply with the required hearing in support of the discharge as mandated in Section 9, Rule 119
of the 1985 Rules on Criminal procedure, as amended.

On October 23, 1992, the Court of Appeal rendered the questioned Decision ruling that "before effecting the discharge the court
should require the prosecution to present evidence and the sworn statement of the proposed witness at a hearing in support of the
discharge." Finding that the lower court immediately resolved the motion to discharge without a hearing thereon, the Court of
Appeals annulled and set aside the Order of discharge dated September 8, 1992.

Hence, the filing of the present petition by the prosecution. Comment by private respondent Jose Pring was filed on February 1,
1993. Prior to said comment, the lower court issued an Order of January 21, 1993, which among others considered the petition for
bail of private respondent Pring submitted for resolution with or without the opposition filed by the prosecution. This prompted the
prosecution to file with this Court an Urgent Motion For the Immediate Issuance of a Temporary Restraining Order and Resolution
of the Petition. The prosecution, in praying for the issuance of a temporary restraining order, sought to enjoin the trial court from
hearing private respondent Jose Pring's motion for bail, pending resolution before this Court, of the petition on whether the
annulment of the Order of discharge by the appellate court is proper. The state, argued the prosecution, shall have no leg to stand
on in opposing the release on bail of private respondent Jose Pring, without the testimony of accused Arile, that will show the
evidence of guilt against private respondent Jose Pring is strong.

Thus, on March 30, 1993, the temporary restraining order was issued by this Court En Banc, ordering Judge Apolinario Santos to
cease and desists from resolving or granting the motion for bail of private respondent Pring in Criminal Case No. 94159 until the
present petition is resolved.

The petition raises a single issue: can the trial court without conducting a hearing pursuant Section 9, Rule 119 of the 1985 Rules
on Criminal Procedure, as amended, resolve the prosecution's Motion to Discharge Nonilo Arile where the records show that the
latter's sworn statement together with the prosecution's other evidence were already in the possession of the court and had been
challenged by private respondent in his Opposition to Discharge Nonilo Arile and in his Petition for Bail?

Favoring an affirmative ruling thereon is the State, represented by the Solicitor General arguing that evidence of the prosecution
consisting of (a) sworn statement of proposed witness Nonilo Arile; (b) resolution of the investigating prosecutors; (c) affidavits of
Rogelio Morales, driver of the kidnapped Chinese children; (d) affidavits of accused Jaime Serrano and Edmund Divinagracia have
all been submitted before the trial court to form part of the records of the case and thus, made available for the scrutiny of private
respondent Jose Pring who controverted in detail the statements of proposed witness Nonilo Arile, both in his Opposition to the
Motion to Discharge and Petition For Bail. It is the Solicitor General's theory that this submission of evidence to prove that the
conditions for discharge as required by law exist, amounts to the presentation thereof in upon court and the opportunity to rebut the
same, well afforded to private respondent Jose Pring assuredly satisfies due process requirement contemplated by law in
mandating a hearing. Under these circumstances, concludes counsel for the State, at no instance was there ever a violation of
said provision of law; rather, the requirement of holding an actual hearing in support of the discharge was substantially complied
with.

Strongly opposed to such proposition is private respondent Jose Pring, advocating strict adherence to the letter of the law. In his
Comment, he emphatically stressed that Nonilo Arile's exclusion from the information is not valid, since it is based on an Order
Discharge, the issuance of which is fatally flawed for failure of the trial court to conduct a hearing in support of his discharge.

To further obtain the dismissal of the petition, private respondent contends that the State's filing of a petition for certiorari under
Rule 65 is improper, where upon analysis of the single issue raised in the petition, the only inquiry it presents before this Court is
one of law. Under our laws on procedure, claims private respondent, a decision of the Court of Appeals involving a pure question
of law may be elevated to the Supreme Court only by a petition for review on  certiorari under Rule 45 and not under Rule 65.
The elevation of this case to the Supreme Court thru a special civil action for certiorari is deemed legally permissible. Settled is the
rule that:

Certiorari may be availed of where an appeal would be slow, inadequate, insufficient, and will not promptly
relieve a party from the injurious effects of the judgment complained of, or in order to avoid further litigation.1

In Jaca v. Lumber Company2 cited in Lansang, Jr. v. Court of Appeals,3 it was held that:

That availability of the ordinary course of appeal does not constitute sufficient ground to prevent a party from
making use of the extraordinary remedy of certiorari where the appeal is not an adequate remedy or equally
beneficial, speedy and sufficient. It is the inadequacy — not the mere absence of all other legal remedies and the
danger of failure of justice without the writ, that must usually determine the propriety of certiorari.

In the case at bar, the decision of the Court of Appeals setting aside the Order of Discharge of accused Nonilo Arile effectively
crippled the prosecution's bid to oppose private respondent's applicant for bail. It was the intention of the prosecution, had not the
Order of Discharge been annulled, to utilize the testimony of Nonilo Arile to show that evidence of guilty against private respondent
Jose Pring is strong. But since the prosecution has been warned by the trial court that it will soon decide the petition for bail of
private respondent Jose Pring, with or without the intended opposition to be filed by the prosecution, the latter was left without
choice and was thus compelled under justified circumstances to file a special civil action for certiorari to annul the judgment of the
Court of Appeals, such action filed being an extraordinary and speedy remedy. The prosecution, which is in immediate need of the
reinstatement of the Order of Discharge resorted to this remedy not as a substitute for appeal but as the proper remedy that can
with dispatch address its predicament.

On the basis of the foregoing, there is no procedural impediment barring this Court from entertaining the instant petition and
resolving the issue before us.

Prior to the 1985 Rules on Criminal Procedure, as amended, Section 9, Rule 119 provided that:

Sec. 9. Discharge of one of several defendants to be witness for the prosecution. — When two or more persons
are charged with the commission of a certain offense, the competent court, at any time before they have entered
upon their defense, may direct one or more of them to be discharged with the latter's consent that he or they may
be witnesses for the government when in the judgment of the court:

(a) There is absolute necessity of the testimony of the defendant whose discharge is requested;

(b) There is no other direct evidence available for the proper prosecution of the offense committed, except the
testimony of said defendant;

(c) The testimony of said defendant can be substantially corroborated in its material points;

(d) Said defendant does not appear to be the most guilty;

(e) Said defendant has not at any time been convicted of any offense involving moral turpitude.

On the other hand, Section 9, Rule 119 of the 985 Rule on Criminal Procedure, as amended, now provides that:

Sec. 9. Discharge of accused to be state witness. — When two or more persons are jointly charged with the
commission of any offense, upon motion of the prosecution before resting its case, the court may direct one or
more of the accused to be discharged with their consent so that they may be witnesses for the state when after
requiring the prosecution to present evidence and the sworn statement of each proposed state witness at a
hearing in support of the discharge, the court is satisfied that:

(a) There is absolute necessity for the testimony of the accused whose discharge is requested;

(b) There is no other direct evidence available for the proper prosecution of the offense committed, except the
testimony of said accused;

(c) The testimony of said accused can be substantially corroborated in its material points;
 (d) Said accused does not appear to be the most guilty;

(e) Said accused has not at any time been convicted of any offense involving moral turpitude.

Evidence adduced in support of the discharge shall automatically form part of the trial. If the court denies the
motion for discharge of the accused as state witness, his sworn statement shall be inadmissible in evidence.

The present rule thus amends the old rule by categorically requiring a hearing where the prosecution shall present the sworn
statement of the proposed witness and its other evidence for the purpose of proving to the satisfaction of the court that the
conditions for discharge as above-enumerated exist. The rationale behind this amendment is to avoid a repetition of the case
of Flores v. Sandiganbayan4 where the Supreme Court set aside the Order of Discharge of the Sandiganbayan because said
court merely relied on the information furnished by the fiscal in forming its conclusion of whether the conditions for discharge have
been met.5 The Supreme Court in Flores (supra) said that since it is the Court's exclusive responsibility to discharge an accused
from the information, it must see to it that:

. . . the requisites prescribed by the rules exist, particularly the requisite that there is absolute necessity for the
testimony of the defendant whose discharge is requested. Under this requisite, the fiscal must show that there is
absolute necessity for the testimony of the defendant whose discharge he seeks, in order to be witness for the
prosecution. This requirement is aimed to curtail miscarriage of justice, before too common, through the abuse of
the power to ask for the discharge of one or more defendants. Absolute necessity of the testimony of the
defendant, whose discharge is requested must now be shown if the discharge is to be allowed, and the power to
determine the necessity is lodged upon the court. . . .

Thus, the term "hearing in support of the discharge" as contemplated by said law refers to a proceeding, separate from the trial
itself, where the prosecution presents its evidence proving the existence of the conditions for discharge and the sworn statement of
the proposed witness. Necessarily, it does not foreclose; rather, it affords an opportunity for the defense to enter its opposition
against the motion to discharge. All of this is intended to aid the court in fulfilling its mandated duty of determining the propriety or
impropriety of the sought-after discharge. In requiring therefore, a "hearing in support of the discharge," the essential objective of
the law is for the court to receive or possess evidence for or against the discharge which will serve as tangible and concrete basis,
independent of the fiscal's or prosecution's persuasions, in granting or denying the motion for discharge.

Hence, in resolving the issue in this petition, the proper question we should address is: Was there a failure to observe the spirit and
intent of Sec. 9, Rule 119 in the case at bar? We rule in the negative. The prosecution has submitted the sworn statement of
accused Nonilo Arile and its evidence showing that the conditions for discharge have been met. Neither can it be denied that the
defense was able to oppose the motion to discharge Nonilo Arile. With both litigants able to present their side, the lack of actual
hearing was not fatal enough to undermine the court's ability to determine whether the conditions prescribed under Section 9, Rule
119 were satisfied. Having received evidence for and against the discharge, the Court avoided a repetition of the case of Flores v.
Sandiganbayan  (Supra).

Nor was there a violation of due process as private respondent Jose Pring insists. As held in the case of Juanita Yap Say and
William Lim v. Intermediate Appellate Court,  et al.6

. . . "To be heard" does not only mean verbal arguments in court. Where a party was given the opportunity to be
heard, either through oral arguments or pleadings, there can be denial of procedural due process. "Due process
is not semper et ubique judicial process."

We reiterate: private respondent Jose Pring has filed his opposition to the motion to discharge Nonilo Arile and even
discussed the material points of the latter's testimony in his petition for bail. His assertion then that there was a denial of
due process for failure to conduct a hearing in support of the discharge is unfounded and not substantiated after a perusal
of the records of the case.

WHEREFORE, the petition is hereby GRANTED and the decision of the Court of Appeals in CA G.R. No. 28933 rendered on
October 23, 1992 is SET ASIDE. Accordingly, the Order of Discharge of Nonilo Arile issued by the trial court in Criminal Case No.
94159 on September 8, 1992 is thus REINSTATED. The temporary restraining order of March 30, 1993 issued by the Court En
Banc is hereby LIFTED.

SO ORDERED.
G.R. No. L-47821 September 15, 1988

BENITO ROSALES, EMILIA R. ROSALES and ROMMEL ROSALES represented by Guardian-Ad-Litem, ROMMEL
ROSALES, petitioners,
vs.
COURT OF APPEALS and DON BOSCO TECHNICAL INSTITUTE, FR. AGUSTIN LOPEZ; MRS. S.A. MENDOZA, assisted
by her husband GODOFREDO MENDOZA and MISS FELICIDAD GORDON. respondents.

This is a petition for review on certiorari seeking to annul and set aside the decision of the Court of Appeals * dated July 26, 1977
in CA-G.R. No. 54674-R entitled "BENITO ROSALES, et al, v. DON BOSCO TECHNICAL INSTITUTE" which affirmed the
decision of the court a quo ** dated September 14, 1973, dismissing petitioners' complaint for damages. The decision of the Court
of Appeals reads:

... (It) is clearly evident that plaintiffs were not candid when they maintained that they knew nothing about the
school's petition for reconsideration, and that after all there was nothing 'mysterious' about the School's
actuations. Further, it is likewise clear from the evidence that plaintiffs did seek the review by the Secretary of
Education of the Director's ruling, and that at the time the School filed its motion to dismiss, the matter was still
pending resolution with the Secretary of Education. Hence, the court a quo incurred in no error when it found that
the decision of the Director of Private Schools dated May 5, 1972 was far from being final and that the
administrative remedies availed of by plaintiffs had not yet been exhausted.

As to the claim that plaintiffs have been denied due process, suffice it to say that the dismissal of the complaint
was based on the ground that it was premature, administrative remedies not having been exhausted.

PREMISES CONSIDERED, decision appealed from is hereby affirmed in toto. No costs. (pp. 26-27, Rollo)

The facts of the case as found by the Court of Appeals, are as follows:

On April 11, 1972, the Don Bosco Technical Institute (School, for short) posted the list of honor students for the graduation of its
elementary department which was to take place on April 22,1972. Rommel Rosales a student of Grade VI, candidate for
graduation and likewise candidate for Valedictorian, reported to his parents that he was not listed as Valedictorian of the class but
that it was another boy by the name of Conrado Valerie. The parents of Rommel demanded for a re-computation of the grades of
their son who, they averred, should be class valedictorian and filed a formal complaint with the Director of Bureau of Private
Schools against the school claiming anomalous ranking of honor pupils for the grade school with a request for a review of the
computations made by the school.

On April 20, 1972, the Chief of the Legal Division of the Bureau of Private Schools sent a copy of the complaint by first indorsement
to the Rector of herein respondent school. Said comment was made on April 21, 1972, stating, among others, that the complaint
had lost its validity because the same was filed on the eve of the commencement exercises of the school, in violation of the
provision of paragraph 176, Section XI of the Manual of Regulation for Private Schools requiring complaints of the kind to be filed
not later than ten (10) days before commencement exercises. However, defendant Rector indicated that he would welcome an
investigation in order to erase any doubt as to the selection of the honor students of the grade school concerned.

On May 5, 1972, the Director of Private Schools rendered a decision holding that Rommel Rosales was the rightful valedictorian.

On November 29, 1972, Rosales filed a complaint for damages itemized as follows: P25,000.00 for moral damages; P15,000.00
for correctional damages and P5,000.00 for attorney's fees, in view of the failure of the school to graduate Rommel Rosales as
valedictorian of his class.

In its answer, respondent school prayed that the complaint be dismissed on the ground that the Director of Private Schools acting
on its motion dated May 11, 1972 reconsidered and set aside his decision of May 5, 1972 and instead "approved and/or confirmed
the selection and award of honors to the students concerned for the school year 1971-1972 as effected by the school." (p. 14,
Rollo [R.A., p. 31])

Petitioners, in their reply, averred that said motion for reconsideration was mysteriously filed, there being no original copies of the
same in the Office of the Director of Private Schools which would show the date of filing thereof and their corresponding receipt of
a copy thereof by the petitioners.
Respondent school however, insisted that their motion for reconsideration was regularly filed and the assailed decision was in fact
reconsidered as above stated on December 18,1972. The records show that petitioners filed a motion for reconsideration on
January 11, 1973 of said decision of December 18, 1972 but was denied on January 19, 1973. Thus, on February 7, 1973,
petitioners appealed both decisions of December 18, 1972 and January 19, 1973 to the Secretary of Education which appeal was
still pending at the time of the filing of their complaint in court.

At the pre-trial, plaintiffs (petitioners herein) confirmed their filing of said appeal with the Secretary of Education. For this reason,
respondent school moved to dismiss the complaint for lack of cause of action on the ground of plaintiff's (petitioner's) failure to
exhaust administrative remedies.

On September 14, 1973, the trial court issued an order which reads:

Acting on the motion to dismiss dated August 20, 1 973 and the opposition thereto filed by the plaintiffs and after
hearing the oral argument of the plaintiffs during the hearing of the motion, the Court finds that plaintiffs have not
exhausted all administrative remedies against the defendants and that it does not fall within any of the recognized
exceptions to the requirement. Since the complaint does not allege exhaustion of said remedies principally on
appeal to the Secretary of Education which was available to him, the Court finds that the complaint does not
allege facts sufficient to constitute cause of action.

WHEREFORE, the Motion to Dismiss is granted and the complaint is DISMISSED, without costs. (Rollo, pp. 23-
24)

On appeal, the Court of Appeals found that the court a quo incurred no error when it found that the decision of the Director of
Private Schools dated May 5, 1972 was far from being final and that the administrative remedies availed of by plaintiffs had not yet
been exhausted and affirmed the decision appealed from in toto.

Hence, this petition. Petitioners raised the following assignment of errors:

I
THE LOWER COURT ERRED IN NOT FINDING THAT THE DECISION OF THE BUREAU OF PRIVATE
SCHOOLS DATED MAY 5, 1972 HAS ALREADY BECOME FINAL AND CONCLUSIVE.

II
THE LOWER COURT ERRED IN NOT FINDING THAT THE EXHAUSTION OF ADMIMSTRATIVE REMEDIES
IS NOT APPLICABLE IN THIS INSTANT CASE.

III
THE LOWER COURT ERRED IN ACTING AND DISREGARDING THE APPLICATION OF DUE PROCESS
OF LAW TO THE PLAINTIFFS-APPELLANTS.

IV
THE LOWER COURT ERRED IN DISMISSING THE COMPLAINT OF THE PLAINTIFFS- APPELLANT. (pp.
10-11, Rollo).

The main issues in this case are:

1. Whether or not the decision of the Director of the Bureau of Private Schools dated May 5, 1972 has already
become final and conclusive; and

2. Whether or not the principle of exhaustion of administrative remedies is applicable in this case.

The first issue involves findings of fact of the Court of Appeals and of the trial court which as a general rule are final and may not be
reviewed on appeal to this Court, subject to certain exceptions which have been recognized and accepted by this court at one time
or another (Manlapaz v. Court of Appeals, 147 SCRA 238 [1987]).

Petitioners' position is to the effect that there was no motion for reconsideration of the May 5, 1972 decision of the Director of
Private Schools, so that the same has become final and executory.
The Court of Appeals found that although the Record on Appeal does not contain a copy of the alleged motion for reconsideration
of the subject decision of May 5, 1972, it was however, mentioned in the letter of the Director of Private Schools dated January 19,
1973 addressed to counsel of plaintiffs (petitioners herein) which reads:

This has reference to your request in behalf of Mrs. Emilia R. Rosales, for reconsideration of the action taken by
this Office as per letter dated December 18, 1972, reconsidering its original stand on the matter of the ranking of
honor students at the Don Bosco Technical Institute, Mandaluyong, Rizal, for the school year 1971-72, as
contained in a letter dated May 5, 1972.

After a careful review of the records of the present case, in the light of existing rules and regulations on the
matter, this Office finds no valid cause or reason to modify or disturb its action as embodied in a letter dated
December 18, 1972.

Accordingly, please be informed that your request for reconsideration, as per letter dated January 11, 1973, is
denied. (p. 14, Rollo [R.A. pp. 28-29].

Thus, as correctly concluded by the Court of Appeals, the contents of aforesaid letter indubitably establish that there was in fact the
questioned motion for reconsideration which was acted upon by the Director of Private Schools on December 18, 1972,
reconsidering his stand on May 5,1972; that petitioners knew about this reconsidered stand otherwise they would not have written
said request for reconsideration of the decision of said Director of December 18, 1972, and that the request for reconsideration
written by Atty. Rabago in behalf of his clients, the herein petitioners was dated January 11, 1973 which was denied on January
19, 1973.

Subject complaint, Civil Case No. 16998, was filed with the trial court on November 29,1972, showing beyond dispute that the
request for reconsideration judicially admitted to have been filed by the petitioners on February 7, 1973 with the Secretary of
Education and Culture had not yet been resolved at the time of the filing of Civil Case No. 16998.

Hence, the said civil case which is an action for damages is premature. The finality of the administrative case which gives life to
petitioners' cause of action has not yet been reached. This was still pending as evidenced in the certificate issued by the agency
trying the same (Record on Appeal, pp. 53-54; Rollo, p. 14). The court a quo was thus correct in acting upon the motion to dismiss
filed by the respondents on the ground that plaintiffs failed to exhaust administrative remedies.

Under the doctrine of exhaustion of administrative remedies, recourse through court action, as a general rule, cannot prosper until
all the remedies have been exhausted at the administrative level, (Pacana vs. Consunji, 108 SCRA 631[1981]; Pestañas et al. v.
Dyogi, et al., 81 SCRA 574 [1978]; Antonio v. Tanco, 65 SCRA 448 [1975]).

Thus, in Abe-Abe et al. v. Manta (90 SCRA 524, 531 [1979]) we emphatically declared:

When an adequate remedy may be had within the Executive Department of the government, but nevertheless, a
litigant fails or refuses to avail himself of the same, the judiciary shall decline to interfere. This traditional attitude of
the courts is based not only on convenience but likewise on respect; convenience of the party litigants and
respect for a co-equal office in the government. If a remedy is available within the administrative machinery, this
should be resorted to before resort can be made to (the) court. (citing Cruz vs. Del Rosario, 119 Phil. 63, 66).

Petitioners however, claim that they were denied due process, obviously to show that their case falls within one of the exceptions
to the doctrine of exhaustion of administrative remedies.

Such contention is however untenable, because in the first place, they were made to avail in the same administrative agency, the
opportunity or right to oppose, which in fact they did, when they filed a motion for reconsideration and later when the motion was
denied, they appealed to the Secretary of Education and Culture.

Precisely, a motion for reconsideration or appeal is curative in character on the issue of alleged denial of due process (Sampang
vs. Inciong, 137 SCRA 56 [19851; REMERCO Garments v. MOLE, 135 SCRA 167 [1985])

WHEREFORE, the instant petition is Dismissed for lack of merit and the decision of the Court of Appeals is Affirmed. No costs.

SO ORDERED.
G.R. No. 80268 May 27, 1992

BOGO-MEDELLIN MILLING, CO., INC. and ROBERT HERMOSA, petitioners,

vs.

THE HON. JUDGE PEDRO SON, Presiding Judge of Regional Trial Court, Branch 11, 7th Judicial District and MANOLITO
TUÑACAO, respondents.

On 27 September 1985, the Office of the Provincial Fiscal of Cebu filed before Branch 11 of the Regional Trial Court of Cebu, then
presided over by Judge Valeriano Tomol, Jr., an information charging petitioner Robert Hermosa with the crime of qualified theft,
upon a complaint filed by petitioner Bogo-Medellin Milling Company, Inc. ("Bogo-Medellin"), in Criminal Case No. CBU-6172. Bail
in the amount of P12,000.00 was recommended. At the same time, several other persons including private respondent Manolito
Tuñacao were charged in a separate information for simple theft, in Criminal Case No. CBU-6173. The acts involved in both
informations related to the theft of the same item, a large rubber tire.

Five (5) months later, on 11 February 1986, private respondent Manolito Tuñacao was dropped from the information for simple
theft in Criminal Case No. CBU-6173, and instead was charged as co-accused of petitioner Hermosa in the case for qualified theft
(Criminal Case No. CBU-6172). The amended information in CBU-6172 read as follows:

That on or about the 24th day of June, 1984, at around 7:00 o'clock in the morning, more or less, in the
Municipality of Medellin, Province of Cebu, Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused being then employees of the Bogo-Medellin Company, Incorporated, conspiring,
confederating and mutually helping with Nonillo Dela Cruz, Enrique Caballete, and Melecio Pilones, the latter
three (3) accused having been charged in a separate information for theft, with deliberate intent to gain, and
without the knowledge and consent of the owner, and with grave abuse of confidence, did then an there wilfully,
and unlawfully and feloniously take, steal and carry away one (1) tire marked goodyear with a dimension of 1000
x 20 and sold the same in the amount of Four Thousand Seven Hundred Eighteen (P4,718.00) Pesos, Philippine
Currency, to the damage and prejudice of the Bogo-Medellin Company, Incorporated in the amount aforestated.

Contrary to law. 1

After arraignment of the two (2) accused, but before the prosecution could commence presenting its evidence, petitioner Bogo-
Medellin filed on 14 April 1986 a manifestation informing the trial court of petitioner Hermosa's desire and willingness to act as state
witness and to testify against his co-accused, private respondent Tuñacao who, Hermosa claimed, was the most guilty. Bogo-
Medellin then prayed for the discharge of petitioner Hermosa from the information in Criminal Case No. CBU-6172.

The application for discharge was opposed by co-accused Tuñacao upon the argument that the requirements of Rule 119 of the
Rules of Court had not been satisfied. More specifically, respondent Tuñacao asserted that petitioner Hermosa, judging from the
evidence presented during the preliminary investigation, was the most guilty of the several persons accused of stealing the rubber
tire.

Initially, Judge Tomol denied the application of petitioner Bogo-Medellin for discharge of Hermosa. On Bogo-Medellin's motion for
reconsideration, however, Judge Tomol issued an order reversing himself and discharging petitioner Hermosa from the information
for qualified theft. On 2 December 1986, on the initial scheduled date of hearing of the qualified theft case, petitioner Hermosa
failed to appear before the trial court. The hearing was accordingly rescheduled, first to 20 January 1987 and later to 3 March
1987. By the latter date, respondent Judge Pedro C. Son had become Presiding Judge of Branch 11 of the Regional Trial Court of
Cebu. On the 3 March 1987 hearing, counsel for private respondent Tuñacao manifested to the court that he would be moving for
reconsideration of the order of Judge Tomol discharging petitioner Hermosa from the qualified theft information. Bogo-Medellin
opposed the motion for reconsideration upon the ground that reinstatement of Hermosa as co-accused in Criminal Case No. CBU-
6172 would place him in double jeopardy, considering that the order of Judge Tomol discharging Hermosa had resulted in his
acquittal of the crime of qualified theft.

On 18 March 1987, respondent Judge Son issued an order reinstating petitioner Hermosa as co-accused in the case for qualified
theft. The dispositive portion of this order read as follows:

In view of all the foregoing, and considering the new provisions in the 1985 Rules on Criminal Procedure, the
order of August 6, 1986 is hereby reconsidered, and Robert Hermosa is ordered reinstated as accused in the
case at bar. Let a warrant issue for his arrest with bond fixed as P12,000.00.
 In the meantime, cancel the hearing on April 2, 1987, but the hearing on May 19, 1987, as previously set, shall
proceed.

SO ORDERED. 2

Bogo-Medellin moved for reconsideration of the order of reinstatement, without success. 3

The sole issue raised in the instant Petition for Certiorari is whether or not the order of former Judge Tomol dated 6
August 1986 discharging petitioner Hermosa as accused in Criminal Case No. CBU-6172 had amounted to his acquittal
of the crime charged. An affirmative answer to this question would lead to the conclusion that the order of respondent
Judge Pedro C. Son dated 18 March 1987 reinstating him as one of the accused in Criminal Case No. CBU-6172
amounted to subjecting private respondent Tuñacao to a second jeopardy for the same criminal offense.

Under Section 9 of Rule 117 of the Rules of Court, the following are the requisites for the defense of double jeopardy:

1. There must be a complaint or information or other formal charge sufficient in form and substance to sustain a
conviction;

2. Filed before a court of competent jurisdiction;

3. After the accused had been arraigned and pleaded to the charge;

4. Than the accused was convicted or acquitted or the case against him was dismissed or otherwise terminated
without his express consent;

5. The second offense charged is the same as the first offense charged, or for an attempt to commit the same or
a frustration thereof; or

6. The second offense necessarily includes or is necessarily included in the first offense charged.

Bogo-Medellin and Hermosa argue that the order of Judge Tomol of 6 August 1986 discharging Hermosa from the
information for qualified theft had the effect of acquitting Hermosa of that offense.

Upon the other hand, it is contended by respondent Tuñacao that the requisites under Section 9 of Rule 119 of the Rules of Court
were not properly complied with. Those requisites for the discharge of an accused from an information in order that he may
become a witness for the prosecution, are the following:

(1) Two or more persons are charged with commission of a certain offense;

(2) The application for discharge is filed before the defense has offered its evidence;

(3) There is absolute necessity for the testimony of the defendant whose discharge is requested;

(4) There is no other direct evidence available for the proper prosecution of the offense committed;

(5) The testimony of said defendant can be substantially corroborated in its material points;

(6) Said defendant does not appear to be the most guilty; and

(7) Said defendant has not at any time been convicted of any offense involving moral turpitude. 4

In the case at bar, it does appear that not all of the above requisites had been complied with when petitioner Hermosa
was discharged from the qualified theft information. There appeared no absolute necessity for Hermosa's testimony in
order to sustain the information against Tuñacao, since there were other witnesses whose testimonies should be sufficient
to prove the charge. Thus, during the preliminary investigation, Nonillo dela Cruz, one of the accused in the information for
simple theft, testified that it was Hermosa who had driven the truck carrying the alleged stolen tire out of the premises of
petitioner Bogo-Medellin, 5 and that after the tire had been sold to a certain Soledad Divinagracia, he (de la Cruz) received
from Tuñacao P100.00 and P200.00 from Hermosa. It, therefore, appears that Hermosa's testimony would merely serve
 to corroborate and strengthen the testimony of Nonillo dela Cruz and to furnish additional details of the events constituting
the offense charged. It may also be noted that during the preliminary investigation, petitioner Hermosa had admitted that it
was he who had driven the truck carrying the stolen tire, and that it was he who had brought the same to the vulcanizing
shop of Gerry Matuya which shop was under the management of Nonillo dela Cruz. Moreover, since petitioner Hermosa
had also testified that respondent Tuñacao and he (Hermosa) had planned the commission of the crime, 6 Hermosa
appeared to be at least as guilty, if not more so, than respondent Tuñacao.

Notwithstanding, however, the apparent failure to comply with all of the above listed requisites for the discharge of one of several
accused to be a witness for the prosecution, the discharge of petitioner Hermosa must be considered as valid for present
purposes, that is, for determination of whether a second and prohibited jeopardy would attach upon reinstatement of Hermosa as a
co-accused in the qualified theft information. The general rule is that the discharge of an accused in order that he may turn state
witness, is expressly left to the discretion of the trial court. 7 The effect of the discharge of a defendant is specified in Section 10 of
Rule 119 in the following manner:

Sec. 10. Discharge of Accused Operates as Acquittal. — The order indicated in the preceding section, shall
amount to an acquittal of the accused discharged and shall be a bar to future prosecution for the same offense,
unless the accused fails or refuses to testify against his co-accused in accordance with his sworn statement
constituting the basis for his discharge.

Respondent Judge Pedro C. Son did read Section 10 of Rule 119 and reached the following construction thereof:

On the claim of the private prosecutor that the discharge of Robert Hermosa on the basis of the questioned order
operated as an acquittal and therefore would constitute double jeopardy if he is reinstated as accused, it needs
only to state that under Section 10 of Rule 119, the discharge which amounts to an acquittal and therefore a bar
to a future prosecution for the same offense, applies only if and after the discharged accused shall have actually
testified for the state or his failure to testify is attributable to the prosecution. Thus, where Hermosa has not yet
testified, the principle of double does not yet apply. For even if he is not reinstated as accused and he fails or
refuses, for some reason, to testify against his co-accused, then his discharge does not operate as an acquittal
and therefore not a bar to future prosecution o f the same offense. 8 (Emphasis supplied)

We read Section 10 differently. We consider Section 10 to mean that once the discharge of an accused from the information is
effected, the legal consequence of acquittal follows and persists unless the accused so discharged fails or refuses to testify against
his co-defendant, in which case the defense of double jeopardy is withdrawn from him and becomes unavailable to him. Until it is
shown that the discharged accused has in fact failed or refused to testify against his co-defendant, subsequent proof showing that
any or all of the conditions listed in section 9 of Rule 119 of the Rules of Court had not been actually fulfilled, would not affect the
legal consequence of the discharge, i.e., would not wipe away the resulting acquittal. Using an analogy drawn from the civil law,
the failure or refusal of the discharged accused to testify against his co-accused constitutes a resolutory condition that results in
lifting of the defense of double jeopardy. The actual testimony of the discharged accused against his co-accused is not, contrary to
what respondent Judge Son believed, a condition precedent to the availability of the double jeopardy defense.

This Court has held several times in the past that any witting or unwitting error of the prosecution in asking for the discharge of an
accused and of the trial court in granting the petition for discharge, so long as no question of jurisdiction is involved, would not
deprive the discharged accused of the acquittal that is specified in Section 10 of Rule 119 and of the constitutional guarantee
against double jeopardy. 9 It is also relevant to note that the improper or mistaken discharge of an accused like petitioner Hermosa
would not affect his competency as a witness or render inadmissible his testimony. 10

In the case at bar, there is no evidence of record to show that petitioner Hermosa failed or refused to testify against his co-
accused,  i.e., that he reneged on his covenant with the prosecution. 11 All the record shows is that petitioner Hermosa failed to
attend two (2) scheduled hearings, which does not necessarily show that he had violated his undertaking to testify against his co-
accused "in accordance with his sworn statement constituting the basis for his discharge." Indeed, respondent Judge Son had
noted in his 18 March 1987 Order that Hermosa had yet to testify. In his second order postponing the hearing of 19 May 1987 to 7
July 1987, respondent Judge Son stated that the absence of petitioner Hermosa could have been due to the fact that the warrant
for his arrest had not been properly served on him as ordered by the trial court in its order of 18 March 1987 reinstating him as co-
accused an the qualified theft information. There is thus on record no sufficient basis to withhold the benefits of Section 10 of Rule
119 from petitioner Hermosa. We conclude that, petitioner Hermosa having been acquitted of the charge of qualified theft, could
not be subsequently reinstated as a co-accused in the same information without a prohibited second jeopardy arising under the
circumstances, absent satisfactory proof that he had refused or failed to testify against his co-accused.
WHEREFORE, the Petition for Certiorari is hereby GRANTED DUE COURSE, and the Orders of respondent Judge Pedro C. Son
dated 18 March 1987 and 3 July 1987 are hereby SET ASIDE and the Order of Judge Valeriano Tomol dated 6 August 1986 is
hereby REINSTATED. No pronouncement as to costs.

SO ORDERED.

G.R. No. 121234 August 23, 1995

HUBERT J. P. WEBB, petitioner,
vs.
HONORABLE RAUL E. DE LEON, the Presiding Judge of the Regional Trial Court of Parañaque, Branch 258, et al,
respondents, LAURO VIZCONDE, intervenor.

G.R. No. 121245 August 23, 1995

MICHAEL A. GATCHALIAN, petitioner,
vs.
HONORABLE RAUL E. DE LEON, the Presiding Judge of the Regional Trial Court of Parañaque, Branch 258, et
al, respondents.

G.R. No. 121297 August 23, 1995

ANTONIO L. LEJANO, petitioner,
vs.
HONORABLE RAUL E. DE LEON, the Presiding Judge of the Regional Trial Court of Parañaque, Branch 258, et
al, respondents.

Before the Court are petitions for the issuance of the extraordinary writs of certiorari, prohibition and mandamus with application
for temporary restraining order and preliminary injunction to: (1) annul and set aside the Warrants of Arrest issued against
petitioners by respondent Judges Raul E. de Leon and Amelita Tolentino in Criminal Case No. 95-404; (2) enjoin the respondents
from conducting any proceeding in the aforementioned criminal case; and (3) dismiss said criminal case or include Jessica Alfaro
as one of the accused therein.1

From the records of the case, it appears that on June 19, 1994, the National Bureau of Investigation (NBI) filed with the
Department of Justice a letter-complaint charging petitioners Hubert Webb, Michael Gatchalian, Antonio J. Lejano and six (6) other
persons,2 with the crime of Rape with Homicide. Forthwith, the Department of Justice formed a panel of prosecutors headed by
Assistant Chief State Prosecutor Jovencio R. Zuño to conduct the preliminary investigation3 of those charged with the rape and
killing on June 30, 1991 of Carmela N. Vizconde;4 her mother Estrellita Nicolas-Vizconde,5 and her sister Anne Marie Jennifer6 in
their home at Number 80 W. Vinzons, St., BF Homes, Parañaque, Metro Manila.

During the preliminary investigation, the NBI presented the following: (1) the sworn statement dated May 22, 1995 of their principal
witness, Maria Jessica M. Alfaro who allegedly saw the commission of the crime;7 (2) the sworn statements of two (2) of the
former housemaids of the Webb family in the persons of Nerissa E. Rosales and Mila S. Gaviola;8 (3) the sworn-statement
of Carlos J. Cristobal who alleged that on March 9, 1991 he was a passenger of United Airlines Flight No. 808 bound for New York
and who expressed doubt on whether petitioner Webb was his co-passenger in the trip; (4) the sworn statement of Lolita Birrer, a
former live-in partner of Gerardo Biong, who narrated the manner of how Biong investigated and tried to cover up the crime at
bar;9 (5) the sworn statements of Belen Dometita and Teofilo Minoza, two of the Vizconde maids, and the sworn statements
of Normal White, a security guard and Manciano Gatmaitan, an engineer. The autopsy reports of the victims were also submitted
and they showed that Carmela had nine (9) stab wounds, Estrellita twelve (12) and Jennifer nineteen (19).10 The genital
examination of Carmela confirmed the presence of spermatozoa.11

Before submitting his counter-affidavit, petitioner Webb filed with the DOJ Panel a Motion for Production And Examination of
Evidence and Documents for the NBI to produce the following:

(a) Certification issued by the U.S. Federal Bureau of Investigation on the admission to and stay of Hubert Webb in the
United States from March 9, 1991 to October 22, 1992;

(b) Laboratory Report No. SN-91-17 of the Medico Legal Officer, Dr. Prospero A. Cabanayan, M.D.;
 (c) Sworn Statements of Gerardo C. Biong (other than his Sworn Statement dated October 7, 1991);

(d) Photographs of fingerprints lifted from the Vizconde residence taken during the investigation;

(e) Investigation records of NBI on Engr. Danilo Aguas, et al.;

(f) List of names of 135 suspects/persons investigated by the NBI per Progress Report dated September 2, 1991
submitted by Atty. Arlis Vela, Supervising Agent;

(g) Records of arrest, interview, investigation and other written statements of Jessica Alfaro (other than the May 22, 1995
Sworn Statement) conducted by the NBI and other police agencies;

(h) transmittal letter to the NBI, including the report of the investigation conducted by Superintendent Rodolfo C. Sison,
Regional Deputy Director, NCRC;

(i) The names of NBI officials/agents composing the Task Force Jecares, including their respective positions and duties;

(j) Statements made by other persons in connection with the crime charged.

The motion was granted by the DOJ Panel and the NBI submitted photocopies of the documents. It alleged it lost the original of the
April 28, 1995 sworn statement of Alfaro. This compelled petitioner Webb to file Civil Case No. 951099 in the Regional Trial Court
(RTC) of Makati, Br. 63, for the purpose, among others, of obtaining the original of said sworn statement. He succeeded, for in the
course of its proceedings, Atty. Arturo L. Mercader, Jr., produced a copy of said original in compliance with a subpoena duces
tecum. The original was then submitted by petitioner Webb to the DOJ Panel together with his other evidence. It appears,
however, that petitioner Webb failed to obtain from the NBI the copy of the Federal Bureau of Investigation (FBI) Report despite his
request for its production.

Petitioner Webb claimed during the preliminary investigation that he did not commit the crime at bar as he went to the United
States on March 1, 1991 and returned to the Philippines on October 27, 1992. 12 His alibi was corroborated by Honesto Aragon,
Lecinia Edrosolano, Sylvia Climaco, Gina Roque, Sonia Rodriguez, Edgardo Venture and Pamela Francisco.13 To further support
his defense, he submitted documentary evidence that he bought a bicycle and a 1986 Toyota car while in the United States on
said dates14 and that he was issued by the State of California Driver's License No. A8818707 on June 14, 1991.15 Petitioner Webb
likewise submitted the letter dated July 25, 1995 of Mr. Robert Heafner, Legal Attache of the US Embassy, citing certain records
tending to confirm, among others, his arrival at San Francisco, California on March 9, 1991 as a passenger in United Airlines Flight
No. 808.

The other respondents — Hospicio "Pyke" Fernandez, Michael Gatchalian, Antonio "Tony Boy" Lejano, Peter Estrada, Miguel
Rodriguez and Gerardo Biong — submitted sworn statements, responses, and a motion to dismiss denying their complicity in the
rape-killing of the Vizcondes.16 Only the respondents Joey Filart and Artemio "Dong" Ventura failed to file their counter-affidavits
though they were served with subpoena in their last known address.17 In his sworn statement, petitioner Gatchalian alleged that
from 11 o'clock in the evening of June 29, 1991 until 3 o'clock in the morning of the following day, he was at the residence of his
friends, Carlos and Andrew Syyap, at New Alabang Village, Muntinlupa watching video tapes. He claimed that his co-
petitioner Lejano was with him.

On August 8, 1995, the DOJ Panel issued a 26-page Resolution "finding probable cause to hold respondents for trial" and
recommending that an Information for rape with homicide be filed against petitioners and their co-respondents,18 On the same
date, it filed the corresponding Information19 against petitioners and their co-accused with the Regional Trial Court of Parañaque.
The case was docketed as Criminal Case No. 95-404 and raffled to Branch 258 presided by respondent judge Zosimo V. Escano.
It was, however, the respondent judge Raul de Leon, pairing judge of Judge Escano, who issued the warrants of arrest against the
petitioners. On August 11, 1995, Judge Escano voluntarily inhibited himself from the case to avoid any suspicion about his
impartiality considering his employment with the NBI before his appointment to the bench. The case was re-raffled to Branch 274,
presided by Judge Amelita Tolentino who issued new warrants of arrest against the petitioners and their co-accused. On August
11, 1995, petitioner Webb voluntarily surrendered to the police authorities at Camp Ricardo Papa Sr., in Bicutan, Taguig.
Petitioners Gatchalian and Lejano likewise gave themselves up to the authorities after filing their petitions before us.

In their petitions at bar, petitioners contend: (1) respondent Judges de Leon and Tolentino gravely abused their discretion when
they failed to conduct a preliminary examination before issuing warrants of arrest against them: (2) the DOJ Panel likewise gravely
abused its discretion in holding that there is probable cause to charge them with the crime of rape with homicide; (3) the DOJ
Panel denied them their constitutional right to due process during their preliminary investigation; and (4) the DOJ Panel unlawfully
intruded into judicial prerogative when it failed to charge Jessica Alfaro in the Information as an accused.
We find the petitions bereft of merit.

Petitioners fault the DOJ Panel for its finding of probable cause. They insist that the May 22, 1995 sworn statement of
Jessica Alfaro is inherently weak and uncorroborated. They hammer on alleged material inconsistencies between her
April 28, 1995 and May 22, 1995 sworn statements. They assail her credibility for her misdescription of petitioner Webb's
hair as semi-blonde. They also criticize the procedure followed by the DOJ Panel when it did not examine witnesses to
clarify the alleged incredulities and inconsistencies in the sworn statements of the witnesses for the NBI.

We start with a restatement of the purpose of a preliminary investigation. Section 1 of Rule 112 provides that a preliminary
investigation should determine " . . . whether there is a sufficient ground to engender a well-grounded belief that a crime
cognizable by the Regional Trial Court has been committed and that the respondent is probably guilty thereof, and should
be held for trial." Section 3 of the same Rule outlines the procedure in conducting a preliminary investigation, thus:

Sec. 3. Procedure. — Except as provided for in Section 7 hereof, no complaint or information for an offense
cognizable by the Regional Trial Court shall be filed without a preliminary investigation having been first
conducted in the following manner:

(a) The complaint shall state the known address of the respondent and be accompanied by affidavits of the
complainant and his witnesses as well as other supporting documents, in such number of copies as there are
respondents, plus two (2) copies for the official file. The said affidavits shall be sworn to before any fiscal, state
prosecutor or government official authorized to administer oath, or, in their absence or unavailability, a notary
public, who must certify that he personally examined the affiants and that he is satisfied that they voluntarily
executed and understood their affidavits.

(b) Within ten (10) days after the filing of the complaint, the investigating officer shall either dismiss the same if he
finds no ground to continue with the inquiry, or issue a subpoena to the respondent, attaching thereto a copy of
the complaint, affidavits and other supporting documents. Within ten (10) days from receipt thereof, the
respondent shall submit counter-affidavits and other supporting documents. He shall have the right to examine all
other evidence submitted by the complainant.

(c) Such counter-affidavits and other supporting evidence submitted by the respondent shall also be sworn to and
certified as prescribed in paragraph (a) hereof and copies thereof shall be furnished by him to the complainant.

(d) If the respondent cannot be subpoenaed, or if subpoenaed, does not submit counter-affidavits within the ten
(10) day period, the investigating officer shall base his resolution on the evidence presented by the complainant.

(e) If the investigating officer believes that there are matters to be clarified, he may set a hearing to propound
clarificatory questions to the parties or their witnesses, during which the parties shall be afforded an opportunity to
be present but without the right to examine or cross-examine. If the parties so desire, they may submit questions
to the investigating officer which the latter may propound to the parties or witnesses concerned.

(f) Thereafter, the investigation shall be deemed concluded, and the investigating officer shall resolve the case
within ten (10) days therefrom. Upon the evidence thus adduced, the investigating officer shall determine whether
or not there is sufficient ground to hold the respondent for trial.

Section 4 of Rule 112 then directs that "if the investigating fiscal finds cause to hold the respondent for trial, he shall
prepare the resolution and corresponding information. He shall certify under oath that he, or as shown by the record, an
authorized officer, has personally examined the complainant and his witnesses, that there is reasonable ground to believe
that a crime has been committed and that the accused is probably guilty thereof . . ."

The need to find probable cause is dictated by the Bill of Rights which protects "the right of the people to be secure in their persons
. . . against unreasonable searches and seizures of whatever nature . . ."20 An arrest without a probable cause is an unreasonable
seizure of a person, and violates the privacy of persons which ought not to be intruded by the State.21 Probable cause to warrant
arrest is not an opaque concept in our jurisdiction. Continuing accretions of case law reiterate that they are facts and
circumstances which would lead a reasonably discreet and prudent man  to believe that an offense has been committed by the
person sought to be arrested.22 Other jurisdictions utilize the term man of reasonable caution 23 or the term ordinarily prudent and
cautious man.24 The terms are legally synonymous and their reference is not to a person with training in the law such as a
prosecutor or a judge but to the average man on the street.25 It ought to be emphasized that in determining probable cause, the
average man weighs facts and circumstances without resorting to the calibrations of our technical rules of evidence of which his
knowledge is nil. Rather, he relies on the calculus of common sense of which all reasonable men have an abundance.

Applying these basic norms, we are not prepared to rule that the DOJ Panel gravely abused its discretion when it found
probable cause against the petitioners. Petitioners belittle the truthfulness of Alfaro on two (2) grounds: (a) she allegedly
erroneously described petitioner Webb's hair as semi-blond and (b) she committed material inconsistencies in her two (2)
sworn statement, thus:26

xxx xxx xxx

To illustrate, the following are some examples of inconsistencies in the two sworn statements of Alfaro:

On whether Alfaro knew Carmela before the incident in question

First Affidavit: She had NOT met Carmela before June 29, 1991.

Second Affidavit: "I met her in a party sometime in February, 1991."

On whether Alfaro saw the dead bodies

First Affidavit: She did not see the three dead persons on that night. She just said "on the
following day I read in the newspaper that there were three persons who were killed . . ."

Second Affidavit: "I peeped through the first door on the left. I saw two bodies on top of the bed,
bloodied, and in the floor, I saw Hubert on top of Carmela."

On the alleged rape of Carmela Vizconde

First Affidavit: She did not see the act of rape.

Second Affidavit: She saw Hubert Webb "with bare buttocks, on top of Carmela and pumping,
her mouth gagged and she was moaning and I saw tears on her eyes."

On how Webb, Lejano, and Ventura entered the Vizconde house

First Affidavit: "by jumping over the fence, which was only a little more than a meter high."

Second Affidavit: They "entered the gate which was already open."

On whether Alfaro entered the Vizconde house

First Affidavit: She never entered the house.

Second Affidavit: "I proceeded to the iron grill gate leading to the dirty kitchen."

In its Resolution, the DOJ Panel ruled that these alleged misdescription and inconsistencies did not erode the credibility of
Alfaro. We quote the pertinent ruling, viz.:27

xxx xxx xxx

As regards the admissibility of Alfaro's statements, granting for purposes of argument merely that she is a co-
conspirator, it is well to note that confessions of a co-conspirator may be taken as evidence to show the
probability of the co-conspirator's participation in the commission of the crime (see People vs. Lumahang, 94
Phil. 1084).

Furthermore, it is a well-established doctrine that conspiracy need not be proved by direct evidence of prior
agreement to commit the crime. Indeed, "only rarely would such a prior agreement be demonstrable since, in the
 nature of things, criminal undertakings are only rarely documented by agreements in writing. Thus, conspiracy
may be inferred from the conduct of the accused before, during and after the commission of the crime, showing
that the several accused had acted in concert or in unison with each other, evincing a common purpose or
design." (Angelo vs. Court of Appeals, 210 SCRA 402 [1992], citations omitted; People vs. Molleda, 86 SCRA
699).

Neither can we discredit Alfaro merely because of the inconsistencies in her two sworn statements.
In Angelo, the Court refused to discredit the testimony of a witness accusing therein petitioner for the slaying of
one Gaviano Samaniego even though said witness failed to name Angelo in his affidavit which was executed five
(5) months earlier. Granting, the Court continued, that a part of the witness' testimony is untrue, such
circumstance is not sufficient to discredit the entire testimony of the witness.

On August 7, 1995, another counsel for respondent Webb submitted his memorandum suggesting that the
instant complaint "should not be decided within the month to give time to the NBI to coordinate with the FBI on
the latter's inquiry into the whereabouts of Hubert Webb . . . and to check on our U.S.-based witnesses."

In said memorandum, counsel for respondent Webb calls for the application of the maxim  falsus in uno, falsus in
omnibus  arising from the inconsistencies of Alfaro's statements, among others. This is untenable. As held
in Angelo:

There is no rule of law which prohibits a court from crediting part of the testimony of a witness
as worthy of belief and from simultaneously rejecting other parts which the court may find
incredible or dubious. The maxim falsus in uno, falsus in omnibus is not a rule of law, let alone
a general rule of law which is universally applicable. It is not a legal presumption either. It is
merely a latinism describing the conclusion reached by a court in a particular case after
ascribing to the evidence such weight or lack of weight that the court deemed proper.

In the case before us, complainant reasoned out that Alfaro was then having reservations when she first
executed the first statement and held back vital information due to her natural reaction of mistrust. This being so,
the panel believes that the inconsistencies in Alfaro's two sworn statements have been sufficiently explained
especially specially so where there is no showing that the inconsistencies were deliberately made to distort the
truth. Consequently, the probative value of Alfaro's testimony deserves full faith and credit. As it has been often
noted, ex parte statements are generally incomplete because they are usually executed when the affiant's state
of mind does not give her sufficient and fair opportunity to comprehend the import of her statement and to narrate
in full the incidents which transpired (People vs. Sarellana, 233 SCRA 31 [1994]; Angelo vs. Court of
Appeals, supra). In the case at bar, there is no dispute that a crime has been committed and what is clear before
us is that the totality of the evidence submitted by the complainant indicate a prima facie  case that respondents
conspired in the perpetration of the imputed offense.

We note that the May 22, 1995 sworn statement of Alfaro was given with the assistance of counsel28 and consists of six (6) pages,
in single space reciting in rich details how the crime was planned and then executed by the petitioners. In addition, the DOJ Panel
evaluated the supporting sworn statements of Nerissa Rosales and Mila Gaviola, former housemaids of the Webbs, Carlos J.
Cristobal, a passenger in United Airlines Flight No. 808 and Lolita Birrer, a paramour of Gerardo Biong. The Panel assayed their
statements as follows:29

xxx xxx xxx

According to Nerissa E. Rosales, a former housemaid of the Webb family, on June 29, 1991, between 7:00
o'clock and 8:00 o'clock in the evening, Hubert was at home inside his room with two male visitors. She knew it
because she and her co-housemaid, Loany, were instructed by Hubert to bring them three glasses of juice. It was
the last time she saw Hubert and was later told by then Congressman Webb that Hubert was in the United
States.

While Mila S. Gaviola, another former housemaid of the Webb family and who served as a laundry woman,
claims, aside from corroborating the statement of Nerissa Rosales, that on June 30, 1991, she woke up at
around 4:00 in the morning and as what she used to do, she entered the rooms of the Webbs to get their clothes
to be washed. As a matter of fact, in that early morning, she entered Hubert's room and saw Hubert, who was
only wearing his pants, already awake and smoking while he was sitting on his bed. She picked up Hubert's
scattered clothes and brought them together with the clothes of the other members of the family to the laundry
area. After taking her breakfast, she began washing the clothes of the Webbs. As she was washing the clothes of
Hubert Webb, she noticed fresh bloodstains in his shirt. After she finished the laundry, she went to the servant's
quarters. But feeling uneasy, she decided to go up to the stockroom near Hubert's room to see what he was
doing. In the said stockroom, there is a small door going to Hubert's room and in that door there is a small
opening where she used to see Hubert and his friends sniffing on something. She observed Hubert was quite
irritated, uneasy, and walked to and from inside his room.

On that day, she noticed Hubert left the house at around 1:00 in the afternoon and came back at around 4:00 in
the same afternoon and went inside his room using the secret door of the house. It was the last time that she saw
Hubert until she left the Webb family.

On the other hand, Carlos J. Cristobal alleged that on March 9, 1991, at about 10:00 in the morning, he was at
the Ninoy Aquino International Airport as he was then scheduled to take the United Airlines Flight No. 808 at 2:00
in the afternoon for New York. At the airport's lobby, he saw then Congressman Freddie Webb with a male
companion. He greeted him and Webb answered: "Mabuti naman, at ito, ihahatid ko ang anak ko papuntang
Florida." He knew Freddie Webb because he often watched him then in a television show "Chicks to Chicks." He
observed that the man whom Freddie Webb referred to as his son, was of the same height as Freddie. The son
referred to has fair complexion with no distinguishing marks on his face. He (son of Webb) was then wearing a
striped white jacket. When he and his children were already inside the plane, he did not see Freddie anymore,
but he noticed his son was seated at the front portion of the economy class. He never noticed Freddie Webb's
son upon their arrival in San Francisco. He claims that, while watching the television program "DONG PUNO
LIVE" lately, he saw the wife of Freddie Webb with her lawyer being interviewed, and when she described Hubert
as "moreno" and small built, with a height of five feet and seven inches tall, and who was the one who left for
United States on March 9, 1991, he nurtured doubts because such description does not fit the physical traits of
the son of Freddie, who left with him for United States on the same flight and date.

Lolita Birrer, alleged that she know Gerardo Biong because she had an affair with him for almost three (3) years
and in fact, she had a child with him who is now four (4) years old. Their relationship started in February, 1991
until she broke up with him in September 1993. She recalls that on June 29, 1991, at around 6:00 p.m., Biong
invited her to play mahjong at the canteen of a certain Aling Glo located at the back of the Parañaque Municipal
Hall.

At about 2:30, in the early morning of January 30, 1991, the radio operator of the Parañaque police told Biong
that he has a phone call. Before Biong went to the radio room, she was instructed to take him over and after
somebody won the game, she followed Biong at the radio room where she overheard him uttering,
"Ano?, Saan? Mahirap yan, Paano, o sige, aantayin kita, O ano?, dilaw na taxi, o sige." When he put the phone
down, Biong told her, "Mayroon lang akong rerespondehan, ikaw muna ang maupo" and then, he went outside
the canteen apparently waiting for somebody. Twenty minutes later, a taxi, colored yellow, arrived with a male
passenger sitting at the backseat and parked near the canteen. After it made some signals by blinking its
headlight, Biong rode thereat at the front seat beside the driver and then, they left. She was not able to recognize
the male passenger because the window of the taxi was tinted. Biong came back at around 7:00 of the same
morning and when he arrived, he immediately washed his hands and face, and took his handkerchief from his
pocket which he threw at the trash can. She asked him why he threw his handkerchief and he answered,
"Hmp . . . amoy tae." She inquired what happened in BF Homes and he replied, "Putang inang mga batang iyon,
pinahirapan nila ako."

Biong later invited her for breakfast, but they first went to his office where she observed him doing something in
his steel cabinet while he appeared to be uneasy. Moments later, Galvan, another policeman of Parañaque,
arrived and said, "Oy Biong, may tatlong patay sa BF, imbestigahan mo" to which Biong answered, "Oo susunod
na ako." Biong went to the office of Capt. Don Bartolome who offered to accompany him and with whom she
asked permission to go with them. Before they proceeded to the place where the killings happened, she asked
Biong if he knew the exact address and the latter immediately responded, "Alam ko na yon." She was surprised
because Galvan never told him the place of the incident.

As soon as they arrived at the Vizconde's residence, Biong instructed the housemaids to contact the victim's
relatives, while the security guard fetched the barangay chairman and the president of the Homeowners
Association. When all these persons were already in the house, Biong started recording the wounds of the victim.
Inside the master's bedroom, she saw Biong took a watch from the jewelry box. Because she could not tolerate
the foul odor, she and Capt. Bartolome went out of the room and proceeded to the dining area. On top of the
dining table, she saw the scattered contents of a shoulder bag. Moments later, Biong came out from the room
and proceeded to the front door to remove the chain lock; asked the keys from the housemaid and it was only
then that the main door was opened. Biong noticed a stone in front of the broken glass of the door and requested
 Capt. Bartolome to go inside the servant's quarters as he doubted the housemaids' claim that they heard nothing
unusual. Using the handle of his gun, Biong broke the remaining glass of the door panel. Bartolome then came
out of the room and told Biong that he can hear the sound of the glass being broken. At the garage, Biong also
noticed same marks on the hood of the car.

On the following day, at around 12:00 noon, Biong arrived in her house together with the Vizconde housemaids.
When Biong was preparing to take a bath, she saw him remove from his pocket the things she also saw from
Vizconde's residence, to wit: calling cards, driver's license, ATM card, a crossed check worth P80,000.00,
earrings, a ring, bracelet, necklace, and the watch he took from the jewelry box inside the room of the Vizcondes.
These jewelry items were later pawned by Biong for P20,000.00 at a pawnshop in front of Chow-Chow restaurant
in Santos Avenue, Parañaque. The next day, she saw Biong took from his locker at the Parañaque Police Station
an imported brown leather jacket, which the latter claimed to have been given to him by the person who called
him up in the early morning of June 30, 1991.

Since then, Biong has been wearing said jacket until they broke up sometime in 1993. She observed that Biong
seemed not interested in pursuing the investigation of the Vizconde case. In fact, when Biong and this group
picked up Mike Gatchalian and brought him to the Parañaque Police Station, she was surprised that Biong halted
the investigation when Gatchalian was profusely sweating while being interrogated. After the father of Gatchalian
talked to Colonel Pureza, the latter called up and instructed Biong to bring Gatchalian to him (Colonel Pureza)
and that was the last thing she remembered regarding this case.

The DOJ Panel then weighed these inculpatory evidence against the exculpatory evidence of petitioners. It ruled: 30

xxx xxx xxx

The voluminous number of exhibits submitted by respondent Webb to support his defense of denial and alibi
notwithstanding, the panel, after a careful and thorough evaluation of the records, believes that they cannot
outweigh the evidence submitted by the complainant. Alibi cannot prevail over the positive identification made by
a prosecution witness. Verily, alibi deserves scant consideration in the face of positive identification especially so
where the claim of alibi is supported mainly by friends and relatives (People vs. Apolonia, 235 SCRA 124 [1994];
People vs. Lucas, 181 SCRA 316 and a long line of cases).

Similarly, denial is a self-serving negative which cannot be given greater evidentiary weight than the declaration
of a credible witness who testified on affirmative matters (People vs. Carizo, 233 SCRA 687 [1994]). Indeed,
denial, like alibi, is weak and becomes even more weaker when arrayed against the positive identification by the
witness for the prosecution (People vs. Onpaid, 233 SCRA 62 [1994]).

Surprisingly, Gatchalian's defense of alibi was not corroborated by Lejano, whom he claimed was with him
watching video tapes at the Syyap residence. Other than claiming that he "was not and could not have been at or
near the area of the Vizconde residence at the time of the alleged commission of the crime,"
respondent Lejano proffered no evidence to substantiate his claim of alibi.

xxx xxx xxx

On the other hand, respondent Webb seeks to enhance the acceptability of his alibi in the form of documents
tending to show that he was thousands of miles away when the incident occurred. We have carefully deliberated
and argued on the evidence submitted by respondent Webb in support of his absence from the country since
March 9, 1991 to October 26, 1992 and found the same wanting to exonerate him of the offense charged. The
material dates in this case are June 29 and 30, 1991. While respondent Webb may have submitted proof tending
to show that he was issued a California driver's license on June 14, 1991, there is no showing that he could not
have been in the country on the dates above mentioned. Neither do we find merit in the allegation that
respondent Webb personally bought a bicycle on June 30, 1991 in California in view of his positive identification
by Alfaro and the two (2) househelps of the Webb family who testified that he was here in the country on said
dates. Additionally, the issuance of receipt evidencing the purchase of a bicycle in California is no conclusive
proof that the name appearing thereon was the actual buyer of the merchandise.

Given these conflicting pieces of evidence of the NBI and the petitioners, we hold that the DOJ Panel did not gravely
abuse its discretion when it found probable cause against the petitioners. A finding of probable cause needs only to rest
on evidence showing that more likely than not a crime has been committed and was committed by the suspects.
Probable cause need not be based on clear and convincing evidence of guilt, neither on evidence establishing guilt
beyond reasonable doubt and definitely, not on evidence establishing absolute certainty of guilt. As well put in Brinegar
v. United States,31 while probable cause demands more than "bare suspicion," it requires "less than evidence which
would justify . . . conviction." A finding of probable cause merely binds over the suspect to stand trial. It is not a
pronouncement of guilt.

Considering the low quantum and quality of evidence needed to support a finding of probable cause, we also hold that the
DOJ Panel did not, gravely abuse its discretion in refusing to call the NBI witnesses for clarificatory questions. The
decision to call witnesses for clarificatory questions is addressed to the sound discretion of the investigator and the
investigator alone. If the evidence on hand already yields a probable cause, the investigator need not hold a clarificatory
hearing. To repeat, probable cause merely implies probability of guilt and should be determined in a summary manner.
Preliminary investigation is not a part of trial and it is only in a trial where an accused can demand the full exercise of his
rights, such as the right to confront and cross-examine his accusers to establish his innocence. In the case at bar, the
DOJ Panel correctly adjudged that enough evidence had been adduced to establish probable cause and clarificatory
hearing was unnecessary.

II

We now come to the charge of petitioners that respondent Judge Raul de Leon and, later, respondent Judge Amelita
Tolentino issued warrants of arrest against them without conducting the required preliminary examination. Petitioners
support their stance by highlighting the following facts: (1) the issuance of warrants of arrest in a matter of few hours; (2)
the failure of said judges to issue orders of arrest; (3) the records submitted to the trial court were incomplete and
insufficient from which to base a finding of probable cause; and (4) that even Gerardo Biong who was included in the
Information as a mere accessory had a "NO BAIL" recommendation by the DOJ Panel. Petitioners postulate that it was
impossible to conduct a "searching examination of witnesses and evaluation of the documents" on the part of said judges.

The issuance of a warrant of arrest interferes with individual liberty and is regulated by no less than the fundamental law of
the land. Section 2 of Article III of the Constitution provides:

Sec. 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable
searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or
warrant of arrest shall issue except upon probable cause to be determined personally by the judge after
examination under oath or affirmation of the complainant and the witnesses he may produce and particularly
describing the place to be searched and the persons or things to be seized.

The aforequoted provision deals with the requirements of probable cause both with respect to issuance of warrants of
arrest or search warrants. The similarities and differences of their requirements ought to be educational. Some of them
are pointed out by Professors LaFave and Israel, thus:32 "It is generally assumed that the same quantum of evidence is
required whether one is concerned with probable cause to arrest or probable cause to search. But each requires a
showing of probabilities as to somewhat different facts and circumstances, and thus one can exist without the other. In
search cases, two conclusions must be supported by substantial evidence: that the items sought are in fact seizable by
virtue of being connected with criminal activity, and that the items will be found in the place to be searched. It is not also
necessary that a particular person be implicated. By comparison, in arrest cases there must be probable cause that a
crime has been committed and that the person to be arrested committed it, which of course can exist without any showing
that evidence of the crime will be found at premises under that person's control." Worthy to note, our Rules of Court do not
provide for a similar procedure to be followed in the issuance of warrants of arrest and search warrants. With respect to
warrants of arrest, section 6 of Rule 112 simply provides that "upon filing of an information, the Regional Trial Court may
issue a warrant for the arrest of the accused." In contrast, the procedure to be followed in issuing search warrants is more
defined. Thus, Sections 3, 4 and 5 of Rule 126 provide:

xxx xxx xxx

Sec. 3. Requisites for issuing search warrant. — A search warrant shall not issue but upon probable cause in
connection with one specific offense to be determined personally by the judge after examination under oath or
affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be
searched and the things to be seized.

Sec. 4. Examination of complainant;  record. — The judge must, before issuing the warrant, personally examine
in the form of searching questions and answers, in writing and under oath the complainant and any witnesses he
may produce on facts personally known to them and attach to the record their sworn statements together with
any affidavits submitted.
 Sec. 5. Issuance and form of search warrant. — If the judge is thereupon satisfied of the facts upon which the
application is based, or that there is probable cause to believe that they exist, he must issue the warrant, which
must be substantially in the form prescribed by these Rules.

We discussed the difference in the Procedure of issuing warrants of arrest and search warrants in Soliven
vs. Makasiar,33 thus:

xxx xxx xxx

The second issue, raised by Beltran, calls for an interpretation of the constitutional provision on the issuance of
warrants of arrest. The pertinent provision reads:

Art. III, Sec. 2. The right of the people to be secure in their persons, houses, papers and effects
against unreasonable searches and seizures of whatever nature and for any purpose shall be
inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to
be determined personally by the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly describing the place to be
searched and the persons or things to be seized.

The addition of the word "personally" after the word "determined" and the deletion of the grant of authority by the
1973 Constitution to issue warrants to "other responsible officers as may be authorized by law," has apparently
convinced petitioner Beltran that the Constitution now requires the judge to personally examine the complainant
and his witnesses in his determination of probable cause for the issuance of warrants of arrest. This is not an
accurate interpretation.

What the Constitution underscores is the exclusive and personal responsibility of the issuing judge to satisfy
himself of the existence of probable cause. In satisfying himself of the existence of probable cause for the
issuance of a warrant of arrest, the judge is not required to personally examine the complainant and his
witnesses. Following established doctrine and procedure, he shall: (1) personally evaluate the report and the
documents submitted by the fiscal regarding the existence of probable cause and, on the basis thereof, issue a
warrant; or (2) if on the basis thereof he finds no probable cause, he may disregard the fiscal's report and require
the submission of supporting affidavits of witnesses to aid him in arriving at a conclusions as to the existence of
probable cause.

Sound policy dictates this procedure, otherwise judges would be unduly laden with the preliminary examination
and investigation of criminal complaints instead of concentrating on hearing and deciding cases filed before their
courts.

Clearly then, the Constitution, the Rules of Court, and our case law34 repudiate the submission of petitioners that
respondent judges should have conducted "searching examination of witnesses" before issuing warrants of arrest against
them. They also reject petitioners' contention that a judge must first issue an order of arrest before issuing a warrant of
arrest. There is no law or rule requiring the issuance of an Order of Arrest prior to a warrant of arrest.

In the case at bar, the DOJ Panel submitted to the trial court its 26-page report, the two (2) sworn statements of Alfaro and
the sworn statements of Carlos Cristobal and Lolita Birrer35 as well as the counter-affidavits of the petitioners. Apparently,
the painstaking recital and analysis of the parties' evidence made in the DOJ Panel Report satisfied both judges that there
is probable cause to issue warrants of arrest against petitioners. Again, we stress that before issuing warrants of arrest,
judges merely determine  personally the probability, not the certainty  of guilt of an accused. In doing so, judges do not
conduct a de novo hearing to determine the existence of probable cause. They just  personally review  the initial
determination of the prosecutor finding a probable cause to see if it is supported by substantial evidence. The sufficiency
of the review process cannot be measured by merely counting minutes and hours. The fact that it took the respondent
judges a few hours to review and affirm the probable cause determination of the DOJ Panel does not mean they made no
personal evaluation of the evidence attached to the records of the case.36

Petitioners' reliance on the case of Allado vs. Diokno37 is misplaced. Our Allado ruling is predicated on the utter failure of
the evidence to show the existence of probable cause. Not even the corpus delicti of the crime was established by the
evidence of the prosecution in that case. Given the clear insufficiency of the evidence on record, we stressed the
necessity for the trial judge to make a further personal examination of the complainant and his witnesses to reach a
correct assessment of the existence or non-existence of probable cause before issuing warrants of arrest against the
accused. The case at bar, however, rests on a different factual setting. As priorly discussed, the various types of evidence
extant in the records of the case provide substantial basis for a finding of probable cause against the petitioner.
The corpus delicti of the crime is a given fact. There is an eyewitness account of the imputed crime given by Alfaro. The
alibi defense of petitioner Webb is also disputed by sworn statements of their former maids. It was therefore unnecessary
for the respondent judges to take the further step of examining ex parte  the complainant and their witnesses with
searching questions.

III

Petitioners also complain about the denial of their constitutional right to due process and violation of their right to an
impartial investigation. They decry their alleged hasty and malicious prosecution by the NBI and the DOJ Panel. They also
assail the prejudicial publicity that attended their preliminary investigation.

We reject these contentions. The records will show that the DOJ Panel did not conduct the preliminary investigation with
indecent haste. Petitioners were given fair opportunity to prove lack of probable cause against them. The fairness of this
opportunity is well stressed in the Consolidated Comment of the Solicitor General, viz.:

Again, there is no merit in this contention. Petitioners were afforded all the opportunities to be heard. Petitioner
Webb actively participated in the preliminary investigation by appearing in the initial hearing held on June 30,
1995 and in the second hearing on July 14, 1995; and by filing a "Motion for Production and Examination of
Evidence and Documents" on June 27, 1995 (p. 4, Petition), a "Reply to the compliance and
Comment/Manifestation to the Motion for Production and Examination of Evidence" on July 5, 1995 (p. 6,
Petition), a "Comment and Manifestation" on July 7, 1995 (p. 6, Petition), his "Counter-Affidavit" on July 14, 1995
(pp. 6-7, Petition) and a "Motion to Resolve" on August 1, 1995. Numerous letter-requests were also sent by the
petitioner Webb's counsel to the DOJ Panel requesting the latter to furnish him a copy of the reports prepared by
the FBI concerning the petitioner's whereabouts during the material period (Annexes "L", "L-1" and "L-2" of the
Supplemental Petition dated August 14, 1995). In fact, not satisfied with the decision of the DOJ Panel not to
issue subpoena duces tecum to Atty. Arturo L. Mercader, Jr., petitioner Webb filed a "Petition for Injunction,
Certiorari, Prohibition and Mandamus" with the Regional Trial Court, Branch 63 of Makati in order to compel said
Atty. Mercader, Jr. to produce the first sworn statement of Alfaro for submission to the DOJ Panel. (p. 4, Petition)
The said court dismissed the petition after Mercader produced and submitted to the DOJ Panel the first sworn
statement of Alfaro, without ruling on the admissibility and credence of the two (2) conflicting and inconsistent
sworn statements of the principal witness, Alfaro. (Attached hereto is a copy of the order of Judge Ruben A.
Mendiola, RTC-Makati, Branch 63 dated July 28, 1995) marked as Annex "F."

It must also be pointed out that despite the declaration by the DOJ Panel that the preliminary investigation was to
be terminated after the hearing held on July 14, 1995, the panel continued to conduct further proceedings, e.g.
comparison of the photo-copies of the submitted documents with the originals on July 17, 1995. (p. 7, Petition)
The panel even entertained the "Response" submitted by accused Miguel Rodriguez on July 18, 1995. (p. 17
Resolution) In addition to these, the panel even announced that any party may submit additional evidence  before
the resolution of the case. (p. 8, Petition) From the time the panel declared the termination of the preliminary
investigation on July 14, 1995, twenty-seven (27) days elapsed before the resolution was promulgated, and the
information eventually filed in the Regional Trial Court of Parañaque on August 10, 1995. This notwithstanding
the directive of Section 3(f) Rule 112 of the Revised Rules of Court that the investigating officer shall resolve the
case within ten (10) days  from the termination of the preliminary investigation. The DOJ Panel precisely allowed
the parties to adduce more evidence in their behalf and for the panel to study the evidence submitted more fully.
This directly disputes the allegation of the petitioners that the resolution was done with indecent haste in violation
of the rights of the petitioners. During the period of twenty-seven (27) days, the petitioners were free to adduce
and present additional evidence before the DOJ Panel.

Verily, petitioners cannot now assert that they were denied due process during the conduct of the preliminary
investigation simply because the DOJ Panel promulgated the adverse resolution and filed the Information in court
against them.

Petitioners cannot also assail as premature the filing of the Information in court against them for rape with homicide on the
ground that they still have the right to appeal the adverse resolution of the DOJ Panel to the Secretary of Justice. The filing
of said Information is in accord with Department of Justice Order No. 223, series of 1993, dated June 25, 1993. We quote
its pertinent sections, viz.:

Sec. 4. Non-Appealable Cases;  Exceptions. — No appeal may be taken from a resolution of the Chief State
Prosecutor/Regional State Prosecutor/Provincial or City Prosecutor finding probable cause except upon showing
 of manifest error or grave abuse of discretion.  Notwithstanding the showing of manifest error or grave abuse of
discretion, no appeal shall be entertained where the appellant had already been arraigned. If the appellant is
arraigned during the pendency of the appeal, said appeal shall be dismissed motu propio by the Secretary of
Justice.

An appeal/motion for reinvestigation from a resolution finding probable cause, however, shall not hold the filing of
the information in court.

Sec. 2. When to appeal. — The appeal must be filed within a period of fifteen (15) days from receipt of the
questioned resolution by the party or his counsel. The period shall be interrupted only by the filing of a motion for
reconsideration within ten (10) days from receipt of the resolution and shall continue to run from the time the
resolution denying the motion shall have been received by the movant or his counsel. (Emphasis supplied)

Without doubt then, the said DOJ Order No. 223 allows the filing of an Information in court after the consummation of the
preliminary investigation even if the accused can still exercise the right to seek a review of the prosecutor's
recommendation with the Secretary of Justice.

Next, petitioners fault the DOJ Panel for not including Alfaro in the Information considering her alleged conspiratorial
participation in the crime of rape with homicide. The non-inclusion of Alfaro is anchored on Republic Act
No. 6981, entitled "An Act Providing For A Witness Protection, Security And Benefit Program And For Other Purposes"
enacted on April 24, 1991. Alfaro qualified under its Section 10, which provides:

xxx xxx xxx

Sec. 10. State Witness. — Any person who has participated in the commission of a crime and desires to a
witness for the State, can apply and, if qualified as determined in this Act and by the Department, shall be
admitted into the Program whenever the following circumstances are present:

(a) the offense in which his testimony will be used is a grave felony as defined under the R.P.C. or its equivalent
under special laws;

(b) there is absolute necessity for his testimony;

(c) there is no other direct evidence available for the proper prosecution of the offense committed;

(d) his testimony can be substantially corroborated on its material points;

(e) he does not appear to be most guilty; and

(f) he has not at anytime been convicted of any crime involving moral turpitude.

An accused discharged from an information or criminal complaint by the court in order that he may be a State
Witness pursuant to Sections 9 and 10 of Rule 119 of the Revised Rules of Court may upon his petition be
admitted to the Program if he complies with the other requirements of this Act. Nothing in this Act shall prevent
the discharge of an accused so that he can be used as a Witness under Rule 119 of the Revised Rules of Court.

Upon qualification of Alfaro to the program, Section 12 of the said law mandates her non-inclusion in the criminal
Complaint or Information, thus:

xxx xxx xxx

Sec. 12. Effect of Admission of a State Witness into the Program. — The certification of admission into the
Program by the Department shall be given full faith and credit by the provincial or city prosecutor who is
required NOT TO INCLUDE THE WITNESS IN THE CRIMINAL COMPLAINT OR INFORMATION and if
included therein, to petition the court for his discharge in order that he can be utilized as a State Witness. The
court shall order the discharge and exclusion of the said accused from the information.
 Admission into the Program shall entitle such State Witness to immunity from criminal prosecution for the offense
or offenses in which his testimony will be given or used and all the rights and benefits provided under Section 8
hereof.

The validity of these provisions is challenged by petitioner Webb. It is urged that they constitute ". . . an intrusion into
judicial prerogative for it is only the court which has the power under the Rules on Criminal Procedure to discharge an
accused as a state witness." The argument is based on Section 9, Rule 11938 which gives the court the prerogative to
approve the discharge of an accused to be a state witness. Petitioner's argument lacks appeal for it lies on the faulty
assumption that the decision whom to prosecute is a judicial function, the sole prerogative of courts and beyond executive
and legislative interference. In truth, the prosecution of crimes appertains to the executive department of government
whose principal power and responsibility is to see that our laws are faithfully executed. A necessary component of this
power to execute our laws is the right to prosecute their violators. The right to prosecute vests the prosecutor with a wide
range of discretion — the discretion of whether, what and whom to charge, the exercise of which depends on a
smorgasbord of factors which are best appreciated by prosecutors. We thus hold that it is not constitutionally
impermissible for Congress to enact R.A. No. 6981 vesting in the Department of Justice the power to determine who can
qualify as a witness in the program and who shall be granted immunity from prosecution.39 Section 9 of Rule 119 does not
support the proposition that the power to choose who shall be a state witness is an inherent judicial prerogative. Under
this provision, the court, is given the power to discharge a state witness only because it has already acquired jurisdiction
over the crime and the accused. The discharge of an accused is part of the exercise of jurisdiction but is not a recognition
of an inherent judicial function. Moreover, the Rules of Court have never been interpreted to be beyond change by
legislation designed to improve the administration of our justice system. R.A. No. 6981 is one of the much sought penal
reform laws to help government in its uphill fight against crime, one certain cause of which is the reticence of witnesses to
testify. The rationale for the law is well put by the Department of Justice, viz.: "Witnesses, for fear of reprisal and economic
dislocation, usually refuse to appear and testify in the investigation/prosecution of criminal complaints/cases. Because of
such refusal, criminal complaints/cases have been dismissed for insufficiency and/or lack of evidence. For a more
effective administration of criminal justice, there was a necessity to pass a law protecting witnesses and granting them
certain rights and benefits to ensure their appearance in investigative bodies/courts."40 Petitioner Webb's challenge to the
validity of R.A. No. 6981 cannot therefore succeed.

Further, petitioners charge the NBI with violating their right to discovery proceedings during their preliminary investigation
by suppressing the April 28, 1995 original copy of the sworn statement of Alfaro and the FBI Report. The argument is
novel in this jurisdiction and as it urges an expansive reading of the rights of persons under preliminary investigation it
deserves serious consideration. To start with, our Rules on Criminal Procedure do not expressly provide for discovery
proceedings during the preliminary investigation stage of a criminal proceeding.41 Sections 10 and 11 of Rule 117 do
provide an accused the right to move for a bill of particulars and for production or inspection of material evidence in
possession of the prosecution.42 But these provisions apply after the filing of the Complaint or Information in court and the
rights are accorded to the accused to assist them to make an intelligent plea at arraignment and to prepare for trial.43

This failure to provide discovery procedure during preliminary investigation does not, however, negate its use by a person
under investigation when indispensable to protect his constitutional right to life, liberty and property. Preliminary
investigation is not too early a stage to guard against any significant erosion of the constitutional right to due process of a
potential accused. As aforediscussed, the object of a preliminary investigation is to determine the probability that the
suspect committed a crime. We hold that the finding of a probable cause by itself subjects the suspect's life, liberty and
property to real risk of loss or diminution. In the case at bar, the risk to the liberty of petitioners cannot be understated for
they are charged with the crime of rape with homicide, a non-bailable offense when the evidence of guilt is strong.

Attuned to the times, our Rules have discarded the pure inquisitorial system of preliminary investigation. Instead, Rule 112
installed a quasi-judicial type of preliminary investigation conducted by one whose high duty is to be fair and impartial.44 As
this Court emphasized in Rolito Go vs.  Court of Appeals,45 "the right to have a preliminary investigation conducted before
being bound over for trial for a criminal offense, and hence formally at risk of incarceration or some other penalty, is not a
mere formal or technical right; it is a substantive right." A preliminary investigation should therefore be scrupulously
conducted so that the constitutional right to liberty of a potential accused can be protected from any material damage. We
uphold the legal basis of the right of petitioners to demand from their prosecutor, the NBI, the original copy of the April 28,
1995 sworn statement of Alfaro and the FBI Report during their preliminary investigation considering their exculpatory
character, and hence, unquestionable materiality to the issue of their probable guilt. The right is rooted on the
constitutional protection of due process which we rule to be operational even during the preliminary investigation of a
potential accused. It is also implicit in section (3) (a) of Rule 112 which requires during the preliminary investigation the
filing of a sworn complaint, which shall ". . . state the known address of the respondent and be accompanied by affidavits
of the complainant and his witnesses as well as other supporting documents . . ."
In laying down this rule, the Court is not without enlightened precedents from other jurisdictions. In the 1963 watershed
case of Brady v. Maryland 46 the United States Supreme Court held that "suppression of evidence favorable to an
accused upon request violates due process where the evidence is material to guilt or punishment, irrespective of the good
faith or bad faith of the prosecution." Its progeny is the 1935 case of Mooney v.  Holohan  47 which laid down the
proposition that a prosecutor's intentional use of perjured testimony to procure conviction violates due process. Thus,
evolved jurisprudence firming up the prosecutor's duty to disclose to the defense exculpatory evidence in its
possession.48 The rationale is well put by Justice Brennan in Brady49 — "society wins not only when the guilty are
convicted but when criminal trials are fair." Indeed, prosecutors should not treat litigation like a game of poker where
surprises can be sprung and where gain by guile is not punished.

But given the right of petitioners to compel the NBI to disclose exculpatory evidence in their favor, we are not prepared to
rule that the initial non-production of the original sworn statement of Alfaro dated April 28, 1995 could have resulted in the
reasonable likelihood that the DOJ Panel would not have found probable cause. To be sure, the NBI, on July 4, 1995,
upon request of petitioners, submitted a photocopy of Alfaro's April 28, 1995 sworn statement. It explained it cannot
produce the original as it had been lost. Fortunately, petitioners, on July 28, 1995, were able to obtain a copy of the
original from Atty. Arturo Mercader in the course of the proceedings in Civil Case No. 951099.50 As petitioners admit, the
DOJ Panel accepted the original of Alfaro's April 28, 1995 sworn statement as a part of their evidence.51 Petitioners thus
had the fair chance to explain to the DOJ Panel then still conducting their preliminary investigation the exculpatory aspects
of this sworn statement. Unfortunately for petitioners, the DOJ Panel still found probable cause to charge them despite the
alleged material discrepancies between the first and second sworn statements of Alfaro. For reasons we have
expounded, this finding of probable cause cannot be struck down as done with grave abuse of discretion.52 On the other
hand, the FBI Report while corroborative of the alibi of petitioner Webb cannot by itself reverse the probable cause finding
of the DOJ Panel in light of the totality of evidence presented by the NBI.

Finally, we come to the argument of petitioner that the DOJ Panel lost its impartiality due to the prejudicial publicity waged
in the press and broadcast media by the NBI.

Again, petitioners raise the effect of prejudicial publicity on their right to due process while undergoing preliminary
investigation. We find no procedural impediment to its early invocation considering the substantial risk to their liberty while
undergoing a preliminary investigation.

In floating this issue, petitioners touch on some of the most problematic areas in constitutional law where the conflicting
demands of freedom of speech and of the press, the public's right to information, and an accused's right to a fair and
impartial trial collide and compete for prioritization. The process of pinpointing where the balance should be struck has
divided men of learning as the balance keeps moving either on the side of liberty or on the side of order as the tumult of
the time and the welfare of the people dictate. The dance of balance is a difficult act to follow.

In democratic settings, media coverage of trials of sensational cases cannot be avoided and oftentimes, its excessiveness
has been aggravated by kinetic developments in the telecommunications industry. For sure, few cases can match the
high volume and high velocity of publicity that attended the preliminary investigation of the case at bar. Our daily diet of
facts and fiction about the case continues unabated even today. Commentators still bombard the public with views not too
many of which are sober and sublime. Indeed, even the principal actors in the case — the NBI, the respondents, their
lawyers and their sympathizers — have participated in this media blitz. The possibility of media abuses and their threat to
a fair trial notwithstanding, criminal trials cannot be completely closed to the press and the public. In the seminal case
of Richmond Newspapers, Inc. v.  Virginia,53 it was wisely held:

xxx xxx xxx

(a) The historical evidence of the evolution of the criminal trial in Anglo-American justice demonstrates
conclusively that at the time this Nation's organic laws were adopted, criminal trials both here and in England had
long been presumptively open, thus giving assurance that the proceedings were conducted fairly to all concerned
and discouraging perjury, the misconduct of participants, or decisions based on secret bias or partiality. In
addition, the significant community therapeutic value of public trials was recognized: when a shocking crime
occurs, a community reaction of outrage and public protest often follows, and thereafter the open processes of
justice serve an important prophylactic purpose, providing an outlet for community concern, hostility, and
emotion. To work effectively, it is important that society's criminal process "satisfy the appearance of justice,"
Offutt v. United States, 348 US 11, 14, 99 L Ed 11, 75 S Ct 11, which can best be provided by allowing people to
observe such process. From this unbroken, uncontradicted history, supported by reasons as valid today as in
centuries past, it must be concluded that a presumption of openness inheres in the very nature of a criminal trial
under this Nation's system of justice, Cf., e.g., Levine v. United States, 362 US 610, 4 L Ed 2d 989, 80 S Ct
1038.
 (b) The freedoms of speech, press, and assembly, expressly guaranteed by the First Amendment, share a
common core purpose of assuring freedom of communication on matters relating to the functioning of
government. In guaranteeing freedoms such as those of speech and press, the First Amendment can be read as
protecting the right of everyone to attend trials so as to give meaning to those explicit guarantees; the First
Amendment right to receive information and ideas means, in the context of trials, that the guarantees of speech
and press, standing alone, prohibit government from summarily closing courtroom doors which had long been
open to the public at the time the First Amendment was adopted. Moreover, the right of assembly is also relevant,
having been regarded not only as an independent right but also as a catalyst to augment the free exercise of the
other First Amendment rights with which it was deliberately linked by
the draftsmen. A trial courtroom is a public place where the people generally — and representatives of the media
— have a right to be present, and where their presence historically has been thought to enhance the integrity and
quality of what takes place.

(c) Even though the Constitution contains no provision which by its terms guarantees to the public the right to
attend criminal trials, various fundamental rights, not expressly guaranteed, have been recognized as
indispensable to the enjoyment of enumerated rights. The right to attend criminal trials is implicit in the
guarantees of the First Amendment; without the freedom to attend such trials, which people have exercised for
centuries, important aspects of freedom of speech and of the press could be eviscerated.

Be that as it may, we recognize that pervasive and prejudicial publicity under certain circumstances can deprive an
accused of his due process right to fair trial. Thus, in Martelino, et al. vs. Alejandro, et al.,54 we held that to warrant a
finding of prejudicial publicity there must be allegation and proof that the judges have been unduly influenced, not simply
that they might be, by the barrage of publicity. In the case at bar, we find nothing in the records that will prove that the tone
and content, of the publicity that attended the investigation of petitioners fatally infected the fairness and impartiality of the
DOJ Panel. Petitioners cannot just rely on the subliminal effects of publicity on the sense of fairness of the DOJ Panel, for
these are basically unbeknown and beyond knowing. To be sure, the DOJ Panel is composed of an Assistant Chief State
Prosecutor and Senior State Prosecutors. Their long experience in criminal investigation is a factor to consider in
determining whether they can easily be blinded by the klieg lights of publicity. Indeed, their 26-page Resolution carries no
indubitable indicia of bias for it does not appear that they considered any extra-record evidence except evidence properly
adduced by the parties. The length of time the investigation was conducted despite its summary nature and the generosity
with which they accommodated the discovery motions of petitioners speak well of their fairness. At no instance, we note,
did petitioners seek the disqualification of any member of the DOJ Panel on the ground of bias resulting from their
bombardment of prejudicial publicity.

It all remains to state that the Vizconde case will move to a more critical stage as petitioners will now have to undergo trial
on the merits. We stress that probable cause is not synonymous with guilt and while the light of publicity may be a good
disinfectant of unfairness, too much of its heat can bring to flame an accused's right to fair trial. Without imposing on the
trial judge the difficult task of supervising every specie of speech relating to the case at bar, it behooves her to be
reminded of the duty of a trial judge in high profile criminal cases to control publicity prejudicial to the fair administration of
justice.55 The Court reminds judges that our ability to dispense impartial justice is an issue in every trial and in every
criminal prosecution, the judiciary always stands as a silent accused. More than convicting the guilty and acquitting the
innocent, the business of the judiciary is to assure fulfillment of the promise that justice shall be done and is done — and
that is the only way for the judiciary to get an acquittal from the bar of public opinion.

IN VIEW WHEREOF, the petitions are dismissed for lack of showing of grave abuse of discretion on the part of the
respondents. Costs against petitioners.

SO ORDERED.