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Republic Act No.

8493

February 12, 1998

AN ACT TO ENSURE A SPEEDY TRIAL OF ALL CRIMINAL CASES BEFORE THE SANDIGANBAYAN, REGIONAL TRIAL COURT, METROPOLITAN TRIAL COURT, MUNICIPAL TRIAL COURT, AND MUNICIPAL CIRCUIT TRIAL COURT, APPROPRIATING FUNDS THEREFOR, AND FOR OTHER PURPOSES Be it enacted by the Senate and House of Representatives of the Philippines in Congress assembled:: Section 1. Title. - This Act shall be known as the "Speedy Trial Act of 1998." Section 2. Mandatory Pre-Trial in Criminal Cases. - In all cases cognizable by the Municipal Trial Court, Municipal Circuit Trial Court, Metropolitan Trial Court, Regional Trial Court, and the Sandiganbayan, the justice or judge shall, after arraignment, order a pre-trial conference to consider the following: (a) Plea bargaining; (b) Stipulation of Facts; (c) Marking for identification of evidence of parties; (d) Waiver of objections to admissibility of evidence; and (e) Such other matters as will promote a fair and expeditious trial. Section 3. Pre-Trial Agreement. - All agreements or admissions made or entered into during the pre-trial conference shall be reduced to writing and signed by the accused and counsel, otherwise the same shall not be used in evidence against the accused. The agreements in relation to matters referred to in Section 2 hereof is subject to the approval of the court: Provided, That the agreement on the plea of the accused to a lesser offense may only be revised, modified, or annulled by the court when the same is contrary to law, public morals, or public policy. Section 4. Nonappearance at Pre-Trial Conference. - Where counsel for the accused or the prosecutor does not appear at the pre-trial conference and does not offer an acceptable excuse for his/her lack of cooperation, the pre-trial justice or judge may impose proper sanctions or penalties. Section 5. Pre-Trial Order. - After the pre-trial conference, the court shall issue an order reciting the actions taken, the facts stipulated, and evidence marked. Such order shall bind the parties, limit the trial to matters not disposed of and control the course of action during the trial, unless modified by the court to prevent manifest injustice. Section 6. Time Limit for Trial. - In criminal cases involving persons charged of a crime, except those subject to the Rules on Summary Procedure, or where the penalty prescribed by law does not exceed six (6) months imprisonment, or a fine of

One thousand pesos (P1,000.00) or both, irrespective of other imposable penalties, the justice or judge shall, after consultation with the public prosecutor and the counsel for the accused, set the case for continuous trial on a weekly or other shortterm trial calendar at the earliest possible time so as to ensure speedy trial. In no case shall the entire trial period exceed one hundred eighty (180) days from the first day of trial, except as otherwise authorized by the Chief Justice of the Supreme Court pursuant to Section 3, Rule 22 of the Rules of Court. Section 7. Time Limit Between Filing of Information and Arraignment and Between Arraignment and Trial.- The arraignment of an accused shall be held within thirty (30) days from the filing of the information, or from the date the accused has appeared before the justice, judge or court in which the charge is pending, whichever date last occurs. Thereafter, where a plea of not guilty is entered, the accused shall have at least fifteen (15) days to prepare for trial. Trial shall commence within thirty (30) days from arraignment as fixed by the court. If the accused pleads not guilty to the crime charged, he/she shall state whether he/she interposes a negative or affirmative defense. A negative defense shall require the prosecution to prove the guilt of the accused beyond reasonable doubt, while an affirmative defense may modify the order of trial and require the accused to prove such defense by clear and convincing evidence. Section 8. Time Limit Following an Order for New Trial. - If the accused is to be tried again following an order of a court for a new trial, the trial shall commence within thirty (30) days from the date the order for a new trial becomes final, except that the court retrying the case may extend such period but in any case shall not exceed one hundred eighty (180) days from the date the order for a new trial becomes final if unavailability of witnesses or other factors resulting from passage of time shall make trial within thirty (30) days impractical. Section 9. Extended Time Limit. - Notwithstanding the provisions of Section 7 of this Act, for the first twelve-calendar-month period following its effectivity, the time limit with respect to the period from arraignment to trial imposed by Section 7 of this Act shall be one hundred eighty (180) days. For the second twelve-month period the time limit shall be one hundred twenty (120) days, and for the third twelve-month period the time limit with respect to the period from arraignment to trial shall be eighty (80) days. Section 10. Exclusions. - The following periods of delay shall be excluded in computing the time within which trial must commence: (a) Any period of delay resulting from other proceedings concerning the accused, including but not limited to the following: (1) delay resulting from an examination of the accused, and hearing on his/her mental competency, or physical incapacity; (2) delay resulting from trials with respect to charges against the accused;

(3) delay resulting from interlocutory appeals; (4) delay resulting from hearings on pre-trial motions: Provided, That the delay does not exceed thirty (30) days, (5) delay resulting from orders of inhibition, or proceedings relating to change of venue of cases or transfer from other courts; (6) delay resulting from a finding of the existence of a valid prejudicial question; and (7) delay reasonably attributable to any period, not to exceed thirty (30) days, during which any proceeding concerning the accused is actually under advisement. (b) Any period of delay resulting from the absence or unavailability of the accused or an essential witness. For purposes of this subparagraph, an accused or an essential witness shall be considered absent when his/her whereabouts are unknown and, in addition, he/she is attempting to avoid apprehension or prosecution or his/her whereabouts cannot be determined by due diligence. An accused or an essential witness shall be considered unavailable whenever his/her whereabouts are known but his/her presence for trial cannot be obtained by due diligence or he/she resists appearing at or being returned for trial. (c) Any period of delay resulting from the fact that the accused is mentally incompetent or physically unable to stand trial. (d) If the information is dismissed upon motion of the prosecution and thereafter a charge is filed against the accused for the same offense, or any offense required to be joined with that offense, any period of delay from the date the charge was dismissed to the date the time limitation would commence to run as to the subsequent charge had there been no previous charge. (e) A reasonable period of delay when the accused is joined for trial with a coaccused over whom the court has not acquired jurisdiction, or as to whom the time for trial has not run and no motion for severance has been granted. (f) Any period of delay resulting from a continuance granted by any justice or judge motu propio or on motion of the accused or his/her counsel or at the request of the public prosecutor, if the justice or judge granted such continuance on the basis of his/her findings that the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial. No such period of delay resulting from a continuance granted by the court in accordance with this subparagraph shall be excludable under this section unless the court sets forth, in the record of the case, either orally or in writing, its reasons for finding that the ends of justice

served by the granting of such continuance outweigh the best interests of the public and the accused in a speedy trial. Section 11. Factors for Granting Continuance. - The factors, among others, which a justice or judge shall consider in determining whether to grant a continuance under subparagraph (f) of Section 10 of this Act are as follows: (a) Whether the failure to grant such a continuance in the proceeding would be likely to make a continuation of such proceeding impossible, or result in a miscarriage of justice. (b) Whether the case taken as a whole is so novel, so unusual and so complex, due to the number of accused or the nature of the prosecution or otherwise, that it is unreasonable to expect adequate preparation within the periods of time established by this Act. No continuance under subparagraph (f) of Section 10 shall be granted because of general congestion of the court's calendar, or lack of diligent preparation or failure to obtain available witnesses on the part of the public prosecutor. Section 12. Public Attorney's Duties Where Accused is Imprisoned. - If the public attorney knows that a person charged of a crime is preventively detained, either because he/she is charged of a bailable crime and has no means to post bail, or is charged of a non-bailable crime, or is serving a term of imprisonment in any penal institution, the public attorney shall promptly: (a) Undertake to obtain the presence of the prisoner for trial, or cause a notice to be served on the person having custody of the prisoner mandating such person to so advise the prisoner of his/her right to demand trial. (b) Upon receipt of a notice, the person having custody of the prisoner shall promptly advise the prisoner of the charge and of his/her right to demand trial. If at any time thereafter the prisoner informs the person having custody that he/she demands trial, such person shall cause notice to that effect to be sent promptly to the public attorney. (c) Upon receipt of such notice, the public attorney shall promptly seek to obtain the presence of the prisoner for trial. (d) When the person having custody of the prisoner receives from the public attorney a properly supported request for temporary custody of the prisoner for trial, the prisoner shall be made available to that public attorney. Section 13. Remedy Where Accused is Not Brought to Trial Within the Time Limit. - If an accused is not brought to trial within the time limit required by Section 7 of this Act as extended by Section 9, the information shall be dismissed on motion of the accused. The accused shall have the burden of proof of supporting such motion but the prosecution shall have the burden of going forward with the evidence in connection with the exclusion of time under Section 10 of this Act.

In determining whether to dismiss the case with or without prejudice, the court shall consider, among other factors, the seriousness of the offense, the facts and circumstances of the case which led to the dismissal, and the impact of a reprosecution on the implementation of this Act and on the administration of justice. Failure of the accused to move for dismissal prior to trial or entry of a plea of guilty shall constitute a waiver of the right to dismissal under this section. Section 14. Sanctions. - In any case in which counsel for the accused, the public prosecution or public attorney: (a) knowingly allows the case to be set for trial without disclosing the fact that a necessary witness would be unavailable for trial; (b) files a motion solely for the purpose of delay which he/she knows is totally frivolous and without merit; (c) makes a statement for the purpose of obtaining continuance which he/she knows to be false and which is material to the granting of a continuance; or (d) otherwise willfully fails to proceed to trial without justification consistent with the provisions of this Act, the court may, without prejudice to any appropriate criminal and/or administrative charges to be instituted by the proper party against the erring counsel if and when warranted, punish any such counsel or attorney, as follows: (1) in the case of a counsel privately retained in connection with the defense of an accused, by imposing a fine not exceeding; fifty percent (50%) of the compensation to which he/she is entitled in connection with his/her defense of the accused; (2) by imposing on any appointed counsel de officio or public prosecutor a fine not exceeding Ten thousand pesos (10,000.00); and (3) by denying any defense counsel or public prosecutor the right to practice before the court considering the case for a period not exceeding thirty (30) days. The authority to punish provided for by this section shall be in addition to any other authority or power available to the court. The court shall follow the procedures established in the Rules of Court in punishing any counsel or public prosecutor pursuant to this section. Section 15. Rules and Regulations. - The Supreme Court shall promulgate rules, regulations, administrative orders and circulars which shall seek to accelerate the disposition of criminal cases. The rules, regulations, administrative orders and circulars formulated shall provide sanctions against justices and judges who willfully fail to proceed to trial without justification consistent with the provisions of this Act.

Section 16. Funding. - For the effective implementation of the rules, regulations, administrative orders and circulars promulgated under this Act, the amount of Twenty million pesos (P20,000,000.00) annually shall be appropriated from the allocation of the Supreme Court under the General Appropriations Act. Thereafter, such additional amounts as may be necessary for its continued implementation shall be included in the annual General Appropriations Act. Section 17. Act Not a Bar to Speedy Trial Claim Under the Constitution. No provision of this Act shall be interpreted as a bar to any claim of denial of speedy trial as required by Article III, Section 14(2) of the 1987 Constitution. Section 18. Repealing Clause. - All laws, presidential decrees, executive orders, rules and regulations or parts thereof inconsistent with the provisions of this Act are hereby repealed or modified accordingly. Section 19. Separability Clause. - In case any provision of this Act is declared unconstitutional, the other provisions shall remain in effect. Section 20. Effectivity. - This Act shall take effect after fifteen (15) days following its publication in the Official Gazette or in any newspaper of general circulation: Provided, That Section 7 of this Act shall become effective after the expiration of the aforementioned third-calendar-month period provided in Section 9 of this Act. Approved: February 12, 1998

Rule 116 PEOPLE OF THE PHILIPPINES, plaintiff-appellee vs. EDUARDO AGBAYANI y MENDOZA, accused-appellant. DECISION PER CURIAM: Nine years and four months ago this Court declared: Rape is a nauseating crime that deserves the condemnation of all decent person who recognize that a womans cherished chastity is hers alone to surrender of her own free will. Whoever violates that will descends to the level of the odious beast. The act becomes doubly repulsive where the outrage is perpetrated on ones own flesh and blood for the culprit is reduced to lower than the lowly animal. The latter yields only to biological impulses and is unfettered by social inhibitions when it mates with its own kin, but the man who rapes his own daughter violates not only her purity and her trust but also the mores of his society which he has scornfully defied. By inflicting his animal greed on her in a disgusting coercion of incestuous lust, he forfeits all respect as a human being and is justly spurned by all, not least of all by the fruit of his own loins whose progeny he has forever stained with his shameful and shameless lechery.[1] At the end of the day, after resolving this case of 14-year-old Eden Agbayani who charged her own father with rape committed in the sanctity of their rented room on 19 July 1994, this Court finds itself repeating this declaration.[2] Before this Court on automatic review is the decision[3] of the Regional Trial Court of Quezon City, Branch 106, in view of the death penalty imposed by it for the crime of rape, defined and penalized under Article 335 of the Revised Penal Code, as amended by R.A. 7659.[4] On 12 September 1994, the Station Investigation and Intelligence Division of the National Capital Region Command, Philippine National Police (PNP), endorsed to the Office of the City Prosecutor of Quezon City the complaint of Eden Agbayani (hereafter EDEN) for rape against her father, herein accused-appellant Eduardo Agbayani y. Mendoza.[5] After appropriate preliminary investigation, a complaint[6] for rape signed by EDEN, assisted by her sister Fedelina Agbayani, and subscribed and sworn to before Asst. City Prosecutor Charito B. Gonzales, was filed against appellant with the Regional Trial Court of Quezon City on 27 October, 1994. The case was docketed as Criminal Case No. Q-94-59149, then set for arraignment, pre-trial and trial on 22 December 1994.[7] At his arraignment on 22 December 1994, appellant, assisted by Attys. Samuel Baldado and Edwin dela Cruz as counsel de oficio, entered a plea of not guilty. [8] Upon agreement of the parties, trial on the merits immediately followed, with the prosecution presenting the first witness, Dr. Florante Baltazar, a Medico-Legal

Officer of the PNP Crime Laboratory,[9] who cross-examined by Atty. Baldado.[10] On the succeeding dates of trial, the prosecution presented EDEN[11] and SPO1 Salvador Buenviaje.[12] During these hearings, however, appellant was represented by Atty. Arturo Temanil of the Public Attorneys Office.[13] On this part, the defense presented appellant, Adoracion M. Cruz, Fedelina Agbayani, as well as EN who identified her and Fedelinas affidavit of desistance, [14] which was subscribed and sworn to before notary public Eranio Cedillo on 6 February 1995. Said affidavit reads as follows: We, Eden Agbayani, 14 years old, complainant and Fedelina Agbayani, 19 years old, sister of Eden Agbayani, and presently residing at No., Phase 1, United Glorieta, Kaniogan, Pasig, Metro Manila, after having been duly sworn to in accordance with law do hereby depose and states [sic]: That we are the complainant [sic] against our father, Eduardo Agbayani pending before this Honorable Court docketed as Criminal Case No. 59149; That after evaluating the circumstance that lead [sic] to the filing of the instant case I formally realize that the incident between us and my father is purely family problem that arise from the disciplinarian attitude of our father; That this resulted to family misunderstanding, hence we decided to formally forego this case and withdraw the same; That I am executing this affidavit for purposes of finally withdrawing the instant case and therefrom requesting this Honorable Court to dismiss the case against our father. This affidavit was executed freely and voluntarily. As EDEN declared in open court what she said in her previous testimony and sworn statement were not true, the trial court held her in direct contempt of court, reasoning that her intentional falsehood was offensive to its dignity and a blatant disrespect to the Court, and actually degrading [to] the administration of justice. Accordingly, the trial court ordered her committed to incarceration and imprisonment within the period provided by law,[15] which penalty however was modified to a fine of P200.00 upon EDENs motion for reconsideration.[16] On rebuttal, the prosecution had EDEN back on the witness stand. She retracted her affidavit of desistance and claimed that she had signed it under coercion by her mother and elder sister. The trial courts summary of the evidence for the prosecution, with the references to the pages of the stenographic notes and exhibits deleted, is as follows: The evidence adduced on the record shows that sometime in September of 1993 in Malolos, Bulacan, the accused was charged by his two daughters, FEDELINA and DODIMA AGBAYANI, [with] the crime of rape which case was raffled to the sala of Judge Danilo Manalastas fo Branch 7, Regional Trial Court, Bulacan. The case was,

however, provisionally dismissed by said Judge after the complainants desisted from pursuing the same in May 1994. Eduardo Agbayani was thus consequently released from jail on July 13, 1994. Three (3) days thereafter, he began living with four (4) of his six (6) daughters, Fedelina, Eden, Diana, and Edina, in a rented room at 30-A Makabayan St., Bgy. Obrero, Quezon City. The evidence of the prosecution, in part consisting of the testimonies of Complainant Eden Agbayani, Medico-Legal Officer, Dr. Florante Baltazar and SPO1 Salvador Buenviaje, shows that the above mentioned address, the complainant, Eden Agbayani, on the evening of July 19, 1994, was sleeping on the floor of the room with her father, the accused Eduardo Agbayani was awakened from her sleep by hands caressing her breast and vagina. She turned to discover that it was her father who was then molesting her. Frightened, she asked, Tay bakit niyo po ginagawa sa akin ito, gayong kalalabas mo lang sa kulungan? and threatened to kill her [sic]. The accused then proceeded to undress her. Thereafter he undressed himself and succeeded in having carnal knowledge with the complainant who could only cry helplessly. The complainant thereafter felt blood dripping from her vagina and felt pain. The next day, or on July 20, 1994, the complainant informed her elder sister, Fedelina, of what had been done to her by her father. She was told not to worry as they would go to Bulacan to report the incident to Fiscal Caraeg of Bulacan, who had, the year before, handled the rape case filed by Fedelina and Dodima. Several attempts were made by her sisters, Fedelina and Eden to reach the said fiscal but it was only on September 9, 1994, that they were able to meet with him. Fiscal Caraeg of Bulacan reported the complaint to Judge Danilo Manalastas who reopened the previous provisionally dismissed case and issued a warrant of arrest against the herein accused. With the assistance of police officers from Station 10 of the SIID in Quezon City, the accused was arrested on the same day at his residence at 30-A Makabayan St., Bgy. Obrero, Quezon City and was later brought to Malolos, Bulacan where he is currently detained. After the accuseds arrest, Eden and Fedelina returned to Station 10 where they made individual statements before SPO1 Salvador Buenviaje narrating the events leading to and occurring after the incident of July 19, 1994. The next morning, Eden was examined by Medico-Legal Officer and Chief of the PNP Crime Laboratory, Dr. Florante Baltazar, a colonel, who, accordingly, prepared the corresponding Medico-Legal Report.[17] Appellant put up the defense of denial and alibi. According to him, he could not have raped his daughter EDEN, because on 19 July 1994, he was in Barangay Victoria in Sual, Pangasinan, visiting his eldest daughter.[18] He declared that EDEN charged him with rape because he had hit her with a belt after he caught her lying about her whereabouts on night. Then on 24 July 1994, she left their rented apartment and did not return anymore.[19] Adoracion Cruz corroborated appellants alibi. She declared that on 17 July 1994, appellant requested her to take care of his children because he was going to Pangasinan to visit his sick father, returning home only on 21 July 1994.[20]

The trial court gave full credence to the testimony of EDEN, who appeared, during her entire testimonies on January 20 and May 4, 1995, coherent, candid and responsive; futher, it commended her for her courage and her unwavering strength in the midst of the emotional and psychological strain and humiliation, not to mention the pressure and lack of moral support of her family, brought on by the filing of this case. It also ruled that EDEN did not voluntarily execute the affidavit of desistance, as it was procured at the behest of her mother and sister for whom the sanctity of the family and the familys good name were more important than demanding punishment for whatever injury the complainant might have suffered in the hands of the accused. Besides, even assuming arguendo that no such pressure was exerted by her mother and sister, the trial court declared that it understood EDENs moral predicament, viz for a child like EDEN, it was difficult to charge her own father with rape; insist on his punishment; and hereby inflict emotional stress and financial strain upon the members of her family, particularly her mother. The trial court likewise gave full faith to the sworn statement (Exhibit E) of Fedelina Agbayani. Turning to the defense of appellant, the trial court found his alibi wholly selfserving, and characterized the testimony of Adoracion Cruz unworthy of belief. As to appellants claim that EDEN filed the complaint because of a grudge against him, the trial court found this incredible,if not totally absurd, for: The complainant is an innocent girl of tender years who is likely to possess such vindictiveness and death of conscience as to concoct such a malicious and damaging story. The complainant appeared, during her entire testimonies on January 20 and May 4, 1995, coherent, candid and responsive. Her retraction on March 16 was sufficiently explained to this Court the seriousness of the injury upon he person and dignity inflicted upon by the accused. Even assuming argumenti gratia that the complainant would indeed lodge a complaint against her father solely on account of an altercation with him, it is highly unlikely that the complainant would concoct a charge which would damage her and wreck havoc on her familys reputation, destroy the household peace and subject her father, the accused, to a grave punishment which by dent of express of law, can obliterate him from the face of this earth. Indeed, to uphold the defenses proposition would be stretching the imagination too far, if not to the extreme. The trial court finally found that appellant employed on EDEN force or intimidation by virtue of his moral ascendancy over her and his threat that he would kill her if she reported the incident to anyone. Accordingly, the trial court, applying Section 11 of R.A. No. 7659 which imposes the penalty of death when the victim is under eighteen years of age and the offender is a parent, ascendant, stepparent, guardian, relative by consanguinity or affinity within the third civil degree, or common law spouse of the parent of the victim, rendered judgement against appellant, to wit: WHEREFORE, considering all the foregoing, judgment is hereby rendered finding the accused, EDUARDO AGBAYANI, GUILTY beyond reasonable doubt of the crime of RAPE committed against complainant, Eden Agbayani, his minor daughter. This

Court as a consequence thereof, hereby imposes upon him the supreme penalty law R.A. 7659. Further, Accused is hereby ordered to pay the complainant, Eden Agbayani, the sum of P75,000.00 as damages, with all the necessary penalties provided for by law without subsidiary imprisonment, however, in the event of insolvency and to pay the costs. Let the entire records of this case be forwarded to the Supreme Court on automatic review. SO ORDERED. On 26 May 1995, appellant, through his new counsel de parte Attorneys Froilan V. Siobal and Domingo Floresta, filed a Motion for New Trial[21] on the ground that serious irregularities prejudicial to his substantial rights were committed during the trial, viz., the failure of the counselde oficio to: (a) present at trial the Barangay Captain of Barangay Obrero, Quezon City, who would have testified, on basis of his certification attached to the motion, that there was a house bearing No. 30, Makabayan St., in his barangay, but that there was no such place as 30-A Makabayan St. of said barangay, which was the address given by EDEN; (b) consider the futility of Adoracion Cruzs testimony; (c) present private complainants mother and sister Fedelina on sur-rebuttal to testify as to the circumstances which brought about the execution of the affidavit of desistance; and (d) cross examine complainant and the police investigator exhaustively. He further alleged that his counsel de oficiowas never prepared during all the scheduled hearings, worse, even waived the presence of appellant after the third witness for the prosecution was presented. He also averred that the trial court used its inherent power of contempt to intimidate private complainant. In their Comments/Opposition to the Motion for New Trial, [22] the public and private prosecutors alleged that there were no such irregularities; neither was there new and material evidence to be presented that appellant could not, with reasonable diligence, have discovered and produced at the trial and which if introduced and admitted at trial would probably change the judgment of the court. In its Order[23] of 31 July 1995, the trial court denied the motion for new trial being devoid of merit and for not being within the purview of Sections 1 and 2, Rule 121 of the Rules of Court. In his Appellants Brief filed before this Court, appellant contends that the trial court erred in: (a) denying his motion for new trial; and (b) holding that the prosecution proved beyond reasonable doubt that he committed the crime charged. In support of the first assigned error, appellant reiterates the grounds in his motion for new trial, and adds two others namely, (1) the lower court failed to apprise him of his right to have counsel of his own choice; and (2) the lower court did not give him the opportunity to prepare for trial, despite the mandated period of two days prescribed in Section 9 of Rule 116 of the Rules of Court. In his second assigned error, appellant contends that EDENs testimony is not sufficient to convict, since its is unclear and not free from serious contradictions. Considering their proximity to EDEN, it was impossible for her sisters or any one of them not to have been awakened when EDEN was allegedly

being abused by him. Strangely, EDEN simply kept quiet and allowed him to abuse her; neither did she shout for help or put up a fight that would have awakened her sisters. Notably, EDEN and her sisters allowed him to live and sleep with them again in their rented room even after the alleged rape. Finally, appellant asserts that EDENs testimony is unreliable because her affidavit of desistance must have necessarily been contradictory thereto. Her subsequent turn-around that she was pressured and influenced to execute and sign the affidavit of desistance further confirmed her being untruthful and, in effect, demolished whatsoever faith left on her charge against the accused. The Office of the Solicitor General (OSG) considers the first assigned error as devoid of merit. When appellant appeared without counsel at the arraignment, the trial court informed him that it would appoint de oficio counsel for him if he so desired, to which appellant agreed. Moreover, the 2-day period to prepare for trial provided in Section 9 of Rule 116 is merely directory and does not prohibit the court from proceeding with trial after arraignment, especially if the defense, as here, consented thereto. It would have been entirely different if the defense did not agree, in which case the court would have no other alternative but to grant him the period. As to appellants other grievances, the OSG points out that throughout all the hearings, appellant never questioned the way his defense was being handled by his counsel de oficio. The latters request for a continuance because he had not yet conferred with appellant was not evidence of counsels lack of sincerity. On the contrary, it showed counsels awareness of his duty to confer with appellant to ferret out the relevant facts as regards the second witness for the prosecution. Likewise, the waiver of appellants presence during the hearing of 18 March 1995 did not prejudice him, because on that date, the defense presented EDEN to testify as to her affidavit of desistance, and Fedelina to corroborate the statements of EDEN which testimonies were in appellants favor. As to the manner appellants counsel de oficio cross-examined the prosecution witnesses, the OSG stresses that the record shows that said counsel tried his best. The OSG then characterizes the second assigned error as barren of merit. EDENs positive identification of appellant as the author of the crime rendered appellants defense of alibi unavailing; moreover, she demonstrated clearly and vividly what transpired that fateful evening of 19 July 1994. Thus in view of EDENs candid and categorical manner of testifying the OSG concluded that she was a credible witness.[24] As to the commission of rape in a small room and in presence of other persons, the OSG maintains that such was not at all improbable.[25]There was, as well, nothing unusual in EDENs silence; as she could only attempt to shout because appellant had succeeded in covering her mouth with his hands and exercised a high level of moral ascendancy over EDEN, his daughter.[26] Hence the OSG invokes the principle that in a rape committed by a father against his own daughter, the formers moral ascendancy and influence over the latter substitutes for violence or intimidation.[27] As regards EDENs affidavit of desistance, the OSG maintains that court look with disfavor on retraction of testimonies previously given in court, for such can

easily be secured from poor and ignorant witnesses usually for monetary consideration,[28] as well as the probability that it may later be repudiated. In his Reply Brief, appellant countered that his consent to the appointment of counsel de oficio his arraignment did not relieve the court of its duty under Section 6 of Rule 116 of the Rules of Court to inform him of his right to counsel and that it would be grievous error to deny an accused such right. Appellant then elaborated on this point as follows: This is not without judicial precedent. In People vs. Cachero, 73 Phil. 426 and People vs. Domenden, 73 Phil. 349, cited in RJ Franciscos Criminal Procedure, Third Ed., 1966, p. 323 it was held, that: The courts should comply with Rule 116, Sec. 3. It would be a grievous error to proceed by sentencing the accused without due process of law and this is not complete, when the accused is denied the right recognized by said rule. The records must show compliance therewith or that the accused renounced his right to be assisted by counsel. This is demanded by the interest of justice and remove all doubt that if the accused had waived said right, he was fully informed before giving his plea of its consequences. Omission by courts whether voluntary should not truly be censured but also condemned. Discussing further the right to the 2-day period to prepare for trial, the appellant contends that said right: [H]as been held to be mandatory and denial of this right is reversible error and a ground for new trial. (R.J. Franciscos Criminal Procedure, Third Ed., 1986, p. 404, citing people vs. Mijares, et al., 47 OG 4606; Dumasig v. Morave, 23 SCRA 259). This must be so xxx to prevent that any accused be caught unaware and deprived of the means of properly facing the charges presented against him. The first assigned error does not persuade this Court. It is true that the transcript of the stenographic notes of the proceedings of 22 December 1994 and the order issued by the trial court after the conclusion of said proceedings only state that the court appointed de oficiocounsel with the consent of the said accused. They do not categorically disclose that the trial informed appellant of his right to counsel of his own choice. However, this does not mean that the trial court failed to inform appellant of such right. The precise time the two counsel de oficio were appointed is not disclosed in the record either. At the recorded portion of the arraignment aspect of the proceedings on 22 December 1994, the two formally entered their appearance, thus: COURT: Call the case. (Interpreter calls the case). FISCAL ROSARIO BARIAS: For the prosecution, Your Honor. ATTY. MARIETA AGUJA:

Respectfully appearing for the prosecution, Your Honor under the control and direct supervision of the Trial Prosecutor, Your Honor, we are ready to present our first witness. ATTY. BALDADO: For the accused Your Honor, appointed as counsel de oficio. ATTY. DE LA CRUZ: For the accused, Your Honor appointed by the court as counsel de oficio.[29] This obviously means that the appointment had taken place earlier. The trial courts order[30] of 22 December 1994 states that said de oficiocounsel were duly appointed by the Court with the consent of the accused. Since appellant has miserably failed to show that he was not informed of his right to counsel, the presumptions that the law has been obeyed and official duty has been regularly performed by the trial court stand.[31] In other words, the trial court is presumed to have complied with its four-fold duties under Section 6[32] of Rule 116 of the Rules of Court, namely, (1) to inform the accused that he has the right to have his own counsel before being arraigned; (2) after giving such information, to ask accused whether he desires the aid of counsel; (3) if he so desires to procure the services of counsel, the court must grant him reasonable time to do so; and (4) if he so desires to have counsel but is unable to employ one, the court must assign counsel de oficio to defend him.[33] It is settled that the failure of the record to disclose affirmatively that the trial judge advised the accused of his right to counsel is not sufficient ground to reverse conviction. The reason being that the trial court must be presumed to have complied with the procedure prescribed by law for the hearing and trial of cases, and that such a presumption can only be overcome by an affirmative showing to the contrary. Thus it has been held that unless the contrary appears in the record, or that it is positively proved that the trial court failed to inform the accused of his right to counsel, it will be presumed that the accused was informed by the court of such right.[34] In U.S. v. Labial,[35] this Court held: Adhering to the doctrine laid down in that case, the only question to be determined in this case is whether the failure of the record to disclose affirmatively that the trial judge advised the accused of their right to have counsel is sufficient ground to reverse the judgment of conviction and to send the case back for a new trial. Upon this point we are all agreed that in the absence of an affirmative showing that the court below did in fact fail to advise the accused of their rights under the provisions of Section 17 of General Orders No. 58, as amended by section 1 of Act No. 440, the mere omission from the record brought here upon appeal of an entry affirmatively disclosing that he did so, is not reversible error. In the absence of an affirmative showing to the contrary, the court below must be presumed in matters of this kind to have complied with the provisions of law prescribing the procedure to be followed in the trial had before him. While in People v. Miranda[36] this Court explicitly stated:

However, said counsel calls attention to the fact that the record is silent as to whether or not, at the time appellant was arraigned, the trial court informed him of his right to be assisted by an attorney, under section 3 of Rule 112 of the Rules of Court. This precise issue was determined in United States v. Labial (27 Phil., 87,88), in the sense that unless the contrary appears in the records, it will be presumed that the defendant was informed by the court of his right to counsel. *** If we should insist on finding every fact fully recorded before a citizen can be punished for an offense against the laws, we should destroy public justice, and give unbridled license to crime. Much must be left to intendment and presumption, for it is often less difficult to do things correctly than to describe them correctly. (United States vs. Labial,supra.) The same doctrine was reiterated in People vs. Abuyen (52 Phil. 722) and in United States vs. Custan (28 Phil. 19). We see no reason to modify it now. In the instant case, the trial court appointed two de oficio counsel who assisted the appellant at his arraignment, one of whom extensively cross-examined the first witness for the prosecution, Dr. Florante Baltazar.[37] Besides, it is only in this appeal that appellant raised the issue of the failure of the trial court to inform him of the right to counsel. At no time did he previously raise it in the trial court despite ample opportunity to do so. His consent to be assisted by counsel de oficio, coupled with said counsels extensive cross-examination of Dr. Baltazar, may even be considered a waiver of his right to question the alleged failure of the trial court to inform of his right to counsel.[38] The cases of People v. Domenden[39] and People v. Cachero[40] cited by appellant are inapplicable. In both casis the trial courts there clearly failed to inform the accused of their right to counsel nor appoint de oficio counsel during the arraignment. Nevertheless, we take this opportunity to admonish trial courts to ensure that their compliance with their pre-arraignment duties to inform the accused of his right to counsel, to ask him if he desires to have one, and to inform him that, unless he is allowed to defend himself in person or he has counsel of his choice, a de oficio counsel will be appointed for him, must appear on record. Turning to the alleged violation of appellants right to the 2-day period to prepare for trial, Section 9 of Rule 116 of the Rules of Court reads: Sec. 9. Time to prepare for trial. -- After a plea of not guilty, the accused is entitled to two (2) days to prepare for trial unless the court for good cause grants him further time. It must be pointed out that the right must be expressly demanded.[41] Only when so demanded does denial thereof constitute reversible error and a ground for new trial.[42] Further, such right may be waived, expressly or impliedly.[43] In the instant case, appellant did not ask for time to prepare for trial, hence, he effectively waived such right. During the succeeding hearings, appellant was represented by Atty. Temanil of the Public Attorneys Office in Quezon City, who entered his appearance as de parte, and not as de oficio, counsel. It is to be presumed that Atty. Temanils

services were obtained pursuant to the law creating the Public Attorneys Office (PAO), formerly the Citizens Legal Assistance Office (CLAO).[44] There is at all no showing that Atty. Temanil lacked the competence and skill to defend appellant. The latters contention that his counsel was not ready at all times because at the hearing on 20 January 1995 he asked for a continuation as he has not yet interviewed [his] client,[45] is misleading. Atty. Temanil made that statement after he cross-examined EDEN and after the judge realized that it was almost 1:00 oclock in the afternoon and both of them were already hungry, thus: ATTY. TEMANIL: I just want to make it on record, Your Honor that from the start of the trial the witness appears to be fluent and suffers no difficulty in answering the questions, even the questions propounded by the Private Prosecutor, Your Honor. COURT: Put that on record. That is true, Atty. Temanil, it is almost 1:00 oclock in the afternoon and we are both hungry now. ATTY. TEMANIL: I will just asked [sic] for continuance considering that I have not yet interviewed my client, Your Honor.[46] Neither is there merit in appellants claim that his counsel committed irregularities: (1) in not considering the futility of the testimony of Adoracion Cruz; (2) in not presenting the barangay captain in the evidence in chief for the defense, and EDENs mother and sister Fedelina in sur-rebuttal; and (3) in not crossexamining exhaustively EDEN. Adoracion Cruz was presented to corroborate appellants alibi that he was in the province and not in their rented room from 17 to 21 July 1994. On the other hand, the testimony of the barangay captain could not alter the fact that rape was committed in a rented room in a house along Makabayan Street in his barangay. Appellant neither testified that he did not occupy a house numbered 30A nor denied that he was living with EDEN and her sisters in that room. Besides, he and his children were not renting the entire house, but merely a room, which could probably be the unit numbered 30-A referred to by EDEN. As to the presentation of EDENs mother and sister Fedelina as sur-rebuttal witnesses to disprove the claim of EDEN that they coerced her into signing the affidavit of desistance, suffice it to state that there was nothing to show that they were in fact willing to refute EDENs claim. Finally, contrary to appellants allegation, a meticulous examination of the transcripts of the stenographic notes convinces this Court that Atty. Temanil sufficiently cross-examined EDEN. If he decided to terminate his cross-examination,

it could have been due to the futility of any further cross-examination which might only prove favorable to the prosecution, as it might have opened another window of opportunity for EDEN to strengthen her testimony. The second assigned error is equally unpersuasive. It raises the issue of the credibility of EDEN as a witness. One of the highly revered dicta Philippine jurisprudence has established is that this Court will not interfere with the judgment of the trial court in passing upon the credibility of opposing witnesses, unless there appears in the records some facts or circumstances of weight and influence which have been overlooked and, if considered, would affect the result. This is founded on practical and empirical considerations, i.e., the trial judge is in a better position to decide the question of credibility, since he personally heard the witnesses and observed their deportment and manner of testifying.[47] He had before him the essential aids to determine whether a witness was telling the truth or lying. Truth does not always stalk boldly forth naked; she often hides in nooks and crannies visible only to the minds eye of the judge who tried the case. To him appears the furtive glance, the blush of conscious shame, the hesitation, the sincere or flippant or sneering tone, the heat, the calmness, the yawn, the sigh, the candor or lack of it, the scant or full realization of the solemnity of an oath, the carriage and mien. [48] On the other hand, an appellate court has only the cold record, which generally does not reveal the thin line between fact and prevarication that is crucial in determining innocence or guilt.[49] At any rate, in view of the gravity of the offense charged and the extreme penalty of death imposed, this Court took painstaking effort and meticulous care in reviewing the transcripts of the stenographic notes of the testimonies of the witnesses. This Court is fully satisfied that EDEN told the truth that she was raped by her father, herein appellant, on 19 July 1994, in their rented room in Barangay Obrero, Quezon City. Her story was made even more credible by the simplicity and candidness of her answers, as well as by the fact that it came from an innocent girl writhing in emotional and moral shock and anguish. She must have been torn between the desire to seek justice and the fear that a revelation of her ordeal might mean the imposition of capital punishment on her father. By testifying in court, she made public a painful and humiliating secret, which others may have simply kept to themselves for the rest of their lives. She thereby jeopardized her chances of marriage, as even a compassionate man may be reluctant to marry her because her traumatic experience may be psychological and emotional impediment to a blissful union. Moreover, such a revelation divided her family and brought it shame and humiliation. If EDEN did testify regardless of these consequences and even allowed the examination of her private parts, she did so inspired by no other motive than to obtain justice and release from the psychological and emotional burdens the painful experience had foisted upon her. It was then improbable that EDEN fabricated a story of defloration and falsely charged her own father with a heinous crime. What appellant claims to be improbabilities in the testimony of EDEN are more apparent than real. The presence of her sisters in the small room did not at all make impossible the commission of rape. The evil in man has no conscience. The beast in him bears no respect for time and place; it drives him to commit rape

anywhere even in places where people congregate such as in parks, along the roadside within school premises, and inside a house where there are other occupants.[50] In People v. Opena,[51] rape was committed in a room occupied also by other persons. In the instant case, EDENs other companions in the room when she was molested by appellant were young girls who were all asleep. That EDEN was unable to resist or shout for help can easily be explained by the fact that appellant threatened to kill her. Whether he was armed was of no moment. That threat alone coming from her father, a person who wielded such moral ascendancy, was enough to render her incapable of resisting or asking for help. Intimidation in rape cases is not calibrated nor governed by hard and fast rules. Since it is addressed to the victims and is therefore subjective, it must be viewed in light of the victims perception and judgment at the time of the commission of the crime. It is enough that the intimidation produced fear fear that if the victim did not yield to the bestial demands of the accused, something far worse would happen to her at that moment. Where such intimidation existed and the victim was cowed into submission as a result thereof, thereby rendering resistance futile, it would be the height of unreasonableness to expect the victim to resist with all her might and strength. If resistance would nevertheless be futile because of intimidation, then offering none at all does not mean consent to the assault so as to make the victims submission to the sexual act voluntary.[52] In any event, in a rape committed by a father against his own daughter, as in this case, the formers moral ascendancy or influence over the latter substitutes for violence or intimidation.[53] Likewise, it must not be forgotten that at her tender age of 14 years, EDEN could not be expected to act with the equanimity of disposition and with nerves of steel, or to act like a mature and experienced woman who would know what to do under the circumstances, or to have courage and intelligence to disregard the threat.[54] Even in cases of rape of mature women, this Court recognized their different and unpredictable reactions. Some may shout; some may faint; and some may be shocked into insensibility; while others may openly welcome the intrusion.[55] Neither does the fact that EDEN continued to live with appellant in the same rented room disprove the rape. While she was hurt physically, psychologically and emotionally, yet the thought must have been irresistible and compelling that her assailant was her own father, who was both a father and mother to her since her mother was in Saudi Arabia and who provided her with the daily wherewithal to keep her alive. Besides, a less harsh life outside was uncertain. Instances are not few when daughters raped by their fathers stayed with the latter and kept in the deepest recesses of their hearts the evil deed even if the memory thereof haunted them forever. Nor is there merit in the insistent claim that EDENs affidavit of desistance must have necessarily contradicted her previous testimony. We have earlier quoted if full this affidavit of desistance. Plainly, nowhere therein did she retract her previous testimony or claim that she was raped by her father. In any case, EDEN withdrew her affidavit of desistance and solemnly declared that she was pressured by her mother and sister to sign it. Moreover, affidavits, being taken ex parte, are generally considered inferior to the testimony given in open court;[56] and

affidavits or recantation have been invariably regarded as exceedingly unreliable, since they can easily be secured from poor and ignorant witnesses. It would be a dangerous rule to reject the testimony taken before a court of justice simply because the witness who gave it later on changed his mind for one reason or another. Such a rule would make a solemn trial a mockery, and place the proceedings at the mercy of unscrupulous witnesses. [57] This Court has no doubt that appellant is guilty as charged. The penalty therefor is death under the first circumstance mentioned in Article 335(7) of the Revised Penal Code, as amended by R.A. No. 7659, which provides, in part, as follows: The death penalty shall also be imposed if the crime of rape is committed with any of the following attendant circumstances: 1.When the victim is under eighteen (18) years of age and the offender is a parent, ascendant, step-parent, guardian, relative by consanguinity or affinity within the third civil degree, or the common-law spouse of the parent of the victim. This law may be difficult to accept for those who believe that the verdict of death for a sin or crime is Gods exclusive prerogative. But the fundamental law of the land allows Congress, for compelling reasons, to impose capital punishment in cases of heinous crimes,[58] hence the passage of R.A. No. 7659. Hoc quidem per quam durum est sed ita lex scripta est. The law may be exceedingly hard but so the law is written and the Court is duty-bound to apply it in this case. To the appellant who inflicted his animal greed on his daughter in a disgusting coercion of incestuous lust, thereby forsaking that which is highest and noblest in his human nature and reducing himself to lower than the lowliest animal, the full force of the law must be weighed against him, for he deserves no place in society. All that we concede to him is a modification of the award of P75,000.00 as damages, which is hereby reduced to P50,000.00 in accordance with current case law. WHEREFORE, judgment is hereby rendered AFFIRMING the decision of the Regional Trial Court of Quezon City, Branch 106, in Criminal Case No. Q-94-59149 finding accused-appellant EDUARDO AGBAYANI y MENDOZA guilty beyond reasonable doubt as principal of the crime of rape defined and penalized under under Article 335 of the Revised Penal Code, as amended by R.A. No. 7659, and imposing upon him the penalty of DEATH, subject to the above modification as to the amount of indemnity. Two justices voted to impose upon the accused-appellant the penalty of reclusion perpetua. Upon the finality of this Decision, let certified true copies thereof, as well as the records of this case, be forwarded without delay to the Office of the President for possible exercise of executive clemency pursuant to Article 83 of the Revised Penal Code, as amended by Section 25 of R.A. No. 7659. With costs de oficio.

SO ORDERED. G.R. No. 114046 October 24, 1994 HONORATO GALVEZ and GODOFREDO DIEGO, petitioners, vs. COURT OF APPEALS (17TH DIVISION), First Asst. Provincial Prosecutor. DENNIS M. VILLA-IGNACIO of Pasig, Rizal; THE PEOPLE OF THE PHILIPPINES; and PNP P/SR. SUPT. RICARDO F. DE LEON, Camp Commander and Head of the PNP Custodial Group, Camp Crame, Cubao, Quezon City, respondents. Emerito M. Salva & Associates; Juanito L. Andrade; and Lazaro Law Firm for petitioners.

REGALADO, J.: Submitted for resolution in the present special civil action are: (1) the basic petition for certiorari and mandamuswith a petition for habeas corpus, to review the resolution issued by respondent Court of Appeals, dated February 18, 1994, in CA-G.R. SP No. 33261; 1 (2) the Urgent Motion 2 and Supplemental Urgent Motion 3 for Immediate Action on Petition for Habeas corpus; and (3) the Urgent Petition to Declare Judge Jaime N. Salazar, Jr. and First Assistant Provincial Prosecutor Dennis M. Villa-Ignacio for Contempt and to Annul Proceedings (with Immediate Prayer for another Cease and Desist Order). 4 On November 12, 1993, petitioners Honorato Galvez, the incumbent Mayor of San Ildefonso, Bulacan, and one Godofredo Diego were charged in three separate informations with homicide and two counts of frustrated homicide fot has been the rule that under the first paragraph of Section 14, Rule 110, the amendment of the information may also be made even if it may result in altering the nature of the charge so long as it Regional Trial Court of Malolos, Bulacan, Branch 14, and docketed as Criminal Cases Nos. 3642-M-93 to 3644-M-93. 5 Both accused posted their respective cash bail bonds and were subsequently released from detention. On November 15, 1993, Bulacan Provincial Prosecutor Liberato L. Reyes filed a Motion to Defer Arraignment and Subsequent Proceedings to enable him "to review the evidence on record and determine once more the proper crimes chargeable against the accused," 6 which was granted by Judge Villajuan in an order dated November 16, 1993. 7 Thereafter, pursuant to Department Order No. 369 of the Department of Justice, respondent Prosecutor Dennis M. Villa-Ignacio was designated Acting Provincial Prosecutor of Bulacan and was instructed to conduct a re-investigation of the aforesaid criminal cases filed against herein petitioners. 8 By virtue of a Manifestation with Ex-parte Motion dated November 23, 1993 9 filed by respondent prosecutor, the proceedings were again ordered suspended by Judge Villajuan until after the prosecution's request for change of venue shall have been

resolved by the Supreme Court, and the preliminary investigation being conducted by the former shall have been terminated. 10 It appears that on December 2, 1993, private complainants, through their counsel, Atty. Silvestre R. Bello III, had filed with the Supreme Court a Petition for Change of Venue of Criminal Cases Nos. 3642-M-93 to 3644-M-93, purportedly to safeguard the lives of the victims and their witnesses, and to prevent a miscarriage of justice. 11 On December 15, 1993, before petitioners could be arraigned in Criminal Cases Nos. 3642-M-93 to 3644-M-93, respondent prosecutor filed an Ex parte Motion to Withdraw Informations in said cases. 12 This motion was granted by Judge Villajuan also on December 15, 1993 and the cases were considered withdrawn from the docket of the court. 13 On the same day, Prosecutor Villa-Ignacio filed four new informations against herein petitioners for murder, two counts of frustrated murder, and violation of Presidential Decree No. 1866 for illegal possession of firearms 14 which were subsequently raffled to the sala of Judge Victoria Pornillos of Branch 10, Regional Trial Court of Malolos, Bulacan and were docketed therein as Criminal Cases Nos. 4004-M-93 to 4007-M-93. No bail having been recommended for the crime of murder, Judge Pornillos ordered the arrest of herein petitioners.15 On December 23, 1993, said presiding judge issued an order setting the arraignment of the accused for December 27, 1993. 16 On December 27, 1993, the scheduled arraignment before Judge Pornillos were reset due to the absence of respondent prosecutor. On even date, petitioners filed before Judge Villajuan a Motion for Reconsideration of his order of December 15, 1993 which granted the motion to withdraw the original informations. 17 Thereafter, a Motion to Quash the new informations for lack of jurisdiction was filed by petitioners before Judge Pornillos on January 3, 1994. 18 At the court session set for the arraignment of petitioners on January 24, 1994, Judge Pornillos issued an order denying the motion to quash and, at the same time, directed that a plea of not guilty be entered for petitioners when the latter refused to enter their plea. 19 In the meantime, and prior to the arraignment of herein petitioners before Judge Pornillos, an order was issued on January 20, 1994 by Judge Villajuan granting the motion for reconsideration filed by petitioners, ordering the reinstatement of Criminal Cases Nos. 3642-M-93 to 3644-M-93, and setting the arraignment of the accused therein for February 8, 1994. 20 On said date, however, the arraignment was suspended and, in the meanwhile, petitioners filed a petition for certiorari, prohibition and mandamus with respondent Court of Appeals, assailing the order dated January 24, 1994 issued by Judge Pornillos which denied petitioners' motion to quash filed in Criminal Cases Nos. 4004-M-93 and 4007-M-93. As earlier stated, respondent court dismissed the petition in its questioned resolution of February 18, 1994, hence this petition. I. On the Main Petition The main issue in this case involves a determination of the set of informations under which herein petitioners should be tried, that is, (a) the first

set of informations for homicide and frustrated homicide in Criminal Cases Nos. 3642-M-93 to 3644-M-93, or (b) the subsequent informations for murder, frustrated murder, and illegal possession of firearms in Criminal Cases Nos. 4004-M93 to 4007-M-93. Several corollary but equally important issues have likewise been addressed to us for resolution, to wit: 1. Whether the ex parte motion to withdraw the original informations is null and void on the ground that (a) there was no notice and hearing as required by Sections 4, 5 and 6, Rule 15 of the Rules of Court; and (b) the appropriate remedy which should have been adopted by the prosecution was to amend the informations by charging the proper offenses pursuant to Section 14 of Rule 110; 2. Whether the order granting the withdrawal of the original informations was immediately final and executory; 3. Whether Judge Pornillos was correct in denying the motion to quash and thereby acquired jurisdiction over the new informations considering that (a) the designated public prosecutor allegedly had no authority to file the second set of informations; and (b) the filing thereof constituted forum shopping; and 4. Whether the arraignment proceeding held on January 24, 1994 in Criminal Cases Nos. 4004-M-93 to 4007-M-93 was valid. We shall discuss these issues seriatim. 1. It is petitioners' submission that the prosecution's failure to serve them a copy of the motion to withdraw the original informations and to set said motion for hearing constitutes a violation of their right to be informed of the proceedings against them, as well as a violation of Sections 4, 5 and 6, Rule 15 of the Rules of Court. Hence, so they contend, the ex parte motion should be considered as a worthless scrap of paper and Judge Villajuan had no authority to act on it. Ergo, the order granting the same is null and void. Petitioners advance the theory that respondent prosecutor should have amended the original informations instead of withdrawing the same and filing new ones. They postulate that the principle of nolle prosequi does not apply in this case since the withdrawal or dismissal of an information is addressed solely to the sound and judicious discretion of the court which has the option to grant or deny it and the prosecution cannot impose its opinion on the court. It is further stressed that in case there is a need to change the nature of the offense charged, that is, from homicide to murder, by adding the qualifying circumstance of treachery, the only legal and proper remedy is through the filing of the corresponding amended information; and that the withdrawal of an information is allowed only where the new information involves a different offense which does not include or is not included in the offense originally charged.

Normally, an accused would not object to the dismissal of an information against him because it is to his best interest not to oppose the same. Contrarily, if the accused should deem such conditional or provisional dismissal to be unjust and prejudicial to him, he could object to such dismissal and insist that the case be heard and decided on the merits. 21 However, considering that in the original cases before Branch 14 of the trial court petitioners had not yet been placed in jeopardy, and the ex parte motion to withdraw was filed and granted before they could be arraigned, there would be no imperative need for notice and hearing thereof. In actuality, the real grievance of herein accused is not the dismissal of the original three informations but the filing of four new informations, three of which charge graver offenses and the fourth, an additional offense. Had these new informations not been filed, there would obviously have been no cause for the instant petition. Accordingly, their complaint about the supposed procedural lapses involved in the motion to dismiss filed and granted in Criminal Cases Nos. 3642-M-93 to 3644-M-93 does not impress us as a candid presentation of their real position. Petitioners' contention that the dismissal of the original informations and the consequent filing of the new ones substantially affected their right to bail is too strained and tenuous an argument. They would want to ignore the fact that had the original informations been amended so as to charge the capital offense of murder, they still stood to likewise be deprived of their right to bail once it was shown that the evidence of guilt is strong. Petitioners could not be better off with amended informations than with the subsequent ones. It really made no difference considering that where a capital offense is charged and the evidence of guilt is strong, bail becomes a matter of discretion under either an amended or a new information. Contrary to petitioners' submission, the absence of notice and hearing does not divest a trial court of authority to pass on the merits of the motion. It has been held that The order of the court granting the motion to dismiss despite absence of a notice of hearing, or proof of service thereof, is merely an irregularity in the proceedings. It cannot deprive a competent court of jurisdiction over the case. The court still retains its authority to pass on the merits of the motion. The remedy of the aggrieved party in such cases is either to have the order set aside or the irregularity otherwise cured by the court which dismissed the complaint, or to appeal from the dismissal and not certiorari. 22 Besides, when petitioners were given by Judge Villajuan the opportunity to file a motion for reconsideration, even assuming the alleged procedural infirmity in his issuance of the order of dismissal, the same was thereby deemed cured. This is especially so in this case since, on his order, the original informations were reinstated in Branch 14 of the trial court. The rule is now well settled that once a complaint or information is filed in court any disposition of the case, whether as to its dismissal or the conviction or the acquittal of the accused, rests in the sound discretion of the court. Although the prosecutor retains the direction and control of the prosecution of criminal cases even when the

case is already in court, he cannot impose his opinion upon the tribunal. For while it is true that the prosecutor has the quasijudicial discretion to determine whether or not a criminal case should be filed in court, once the case had already been brought therein any disposition the prosecutor may deem proper thereafter should be addressed to the court for its consideration and approval. 23 The only qualification is that the action of the court must not impair the substantial rights of the accused or the right of the People to due process of law. We reiterate once again the doctrine we enunciated and explained in Crespo vs. Mogul, etc., et al.: 24 Whether the accused had been arraigned or not and whether it was due to a reinvestigation by the fiscal or a review by the Secretary of Justice whereby a motion to dismiss was submitted to the Court, the Court in the exercise of its discretion may grant the motion or deny it and require that the trial on the merits proceed for the proper determination of the case. xxx xxx xxx The rule therefore in this jurisdiction is that once a complaint or information is filed in Court any disposition of the case as to its dismissal or the conviction or acquittal of the accused rests in the sound discretion of the Court. Although the fiscal retains the direction and control of the prosecution of criminal cases even while the case is already in Court he cannot impose his opinion on the trial court. The court is the best and sole judge on what to do with the case before it. The determination of the case is within its exclusive jurisdiction and competence. A motion to dismiss the case filed by the fiscal should be addressed to the Court who has the option to grant or deny the same. It does not matter if this is done before or after the arraignment of the accused or that the motion was filed after a reinvestigation or upon instructions of the Secretary of Justice who reviewed the records of the investigation. In such an instance, before a re-investigation of the case may be conducted by the public prosecutor, the permission or consent of the court must be secured. And, if after such re-investigation the prosecution finds a cogent basis to withdraw the information or otherwise cause the dismissal of the case, such proposed course of action may be taken but shall likewise be addressed to the sound discretion of the court. 25 It is not denied that in the present case, the court granted the motion of respondent prosecutor for the suspension of the proceedings until the re-investigation thereof shall have been terminated. Thereafter, the prosecutor arrived at a finding that petitioners should have been charged with murder, frustrated murder, and illegal possession of firearms. This prompted him to file an ex parte motion to withdraw the original informations for homicide and frustrated homicide. Although the motion did not state the reasons for the

withdrawal of the informations, nevertheless, the court in the exercise of its discretion granted the same, as a consequence of which a new set of informations was thereafter filed and raffled to another branch of the court. Petitioners now question the propriety of the procedure adopted by the prosecution, insisting that an amendment, not a new information, was required under the circumstances. It must here be emphasized that respondent prosecutor sought, and was subsequently granted, permission by the court to dismiss the original informations. It cannot therefore be validly claimed that the prosecutor exceeded his authority in withdrawing those informations because the same bore the imprimatur of the court. The issue is thus focused on whether or not under the given situation the court acted correctly in dismissing the original informations rather than ordering the amendment thereof. It has been observed that while the Rules of Court gives the accused the right to move for the quashal of the information, it is silent with respect to the right of the prosecutor to ask for a dismissal or withdrawal thereof. 26 A perusal of the 1985 Rules on Criminal Procedure will show that there are only two provisions concerning the dismissal of an information other than on motion of the accused, namely, Section 14 of Rule 110 and Section 11 of Rule 119. But then, it may be contended that these rules speak of a dismissal by the court when there is a mistake in charging the proper offense, but make no mention of a dismissal made upon application of the prosecution. That is not necessarily so. It is true that Section 11, Rule 119 is virtually a restatement of Section 14, Rule 110, providing as it does that: Sec. 11. When mistake has been made in charging the proper offense. When it becomes manifest at any time before judgment, that a mistake has been made in charging the proper offense, and the accused cannot be convicted of the offense charged, or of any other offense necessarily included therein, the accused shall not be discharged, if there appears to be good cause to detain him. In such case, the court shall commit the accused to answer for the proper offense and dismiss the original case upon the filing of the proper information. (Emphasis supplied.) Rule 119 is the rule specifically governing the trial stage where evidence is necessarily being presented, hence the trial court is now in a better position to conclude that manifestly the accused cannot be convicted of the offense charged or of one that it necessarily includes. It would primarily be the function of the court to motu proprioorder the dismissal of the case and direct the filing of the appropriate information. We do not discount the possibility of either the prosecution or the defense initiating such dismissal and substitution at that stage, although, from a realistic point of view, that would be a rare situation. This provision, therefore, is more directly and principally directed to the trial court to invest it with the requisite authority to direct by itself the dismissal and refiling of the informations therein contemplated.

Rule 110, on the other hand, provides the procedural governance for the prosecution of offenses. Section 14 thereof, quoted infra, provides in its second paragraph the procedure and requisites for the substitution of a defective information by the correct one. Although, just like Section 11 of Rule 119 the permissible stage for effecting that substitution is "at any time before judgment," unlike the latter situation it is sufficient that "it appears . . . that a mistake has been made in charging the proper offense, . . . ." The situation under said Section 14 contemplates a longer time span, inclusive of the period from the filing of the information up to and before trial. Since no evidence has been presented at that stage, the error would appear or be discoverable from a review of the records of the preliminary investigation. Of course, that fact may be perceived by the trial judge himself but, again, realistically it will be the prosecutor who can initially determine the same. That is why such error need not be manifest or evident, nor is it required that such nuances as offenses includible in the offense charged be taken into account. It necessarily follows, therefore, that the prosecutor can and should institute remedial measures for the dismissal of the original information and the refiling of the correct one, otherwise he would be recreant to his duties. It is interesting to note that in the American jurisdiction, such right is specifically recognized under Rule 48 (a) of the Federal Rules of Criminal Procedure which provides that the entry of a nolle prosequi by the Government is a permissible right, although requiring in all cases the approval of the court in the exercise of its judicial discretion.27 As a matter of fact, the prosecuting attorney is given the broad power, sole authority and discretion to enter anolle prosequi provided he does not act arbitrarily 28 and subject to the discretion of the court. In several cases, we have also impliedly recognized the propriety of such a procedure particularly in those instances where the prosecution is allowed to dismiss or withdraw an information on the ground of insufficiency of evidence. We have even gone further by imposing upon the fiscal, as he was then called, the duty to move for the dismissal of the information if he is convinced that the evidence is insufficient to establish, at least prima facie, the guilt of the accused. 29 In this case now before us, what is involved is a dismissal effected at the instance of the prosecutor by reason of a mistake in charging the proper offense, in order that new informations can be filed. The problem that may be posited, and should now be resolved, is when the fiscal may be allowed to move to dismiss an information and when he should merely move to amend it. Section 14 of Rule 110, which is invoked by petitioners, reads as follows: Sec. 14. Amendment. The information or complaint may be amended, in substance or form, without leave of court, at any time before the accused pleads; and thereafter and during the trial as to all matters of form, by leave and at the discretion of the court, when the same can be done without prejudice to the rights of the accused. If it appears at any time before judgment that a mistake has been made in charging the proper offense, the court shall dismiss the original complaint or information upon the filing of a new one charging

the proper offense in accordance with Rule 119, Section 11, provided the accused would not be placed thereby in double jeopardy, and may also require the witnesses to give bail for their appearance at the trial. The first paragraph provides the rule for amendment of the information or complaint, while the second paragraph refers to the substitution of the information or complaint. Under the second paragraph, the court can order the filing of another information to charge the proper offense, provided the accused would not be placed thereby in double jeopardy and that could only be true if the offense proved does not necessarily include or is not necessarily included in the offense charged in the original information. It has been the rule that under the first paragraph of Section 14, Rule 110, the amendment of the information may also be made even if it may result in altering the nature of the charge so long as it can be done without prejudice to the rights of the accused. Hence, in the case of Dimalibot vs. Salcedo, 30 the accused therein were originally charged with homicide and were released on bail. However, the then provincial fiscal, after a review of the affidavits of the witnesses for the prosecution, discovered that the killing complained of was perpetrated with the qualifying circumstances of treachery, taking advantage of superior strength, and employing means to weaken the defense of the victim. Consequently, an amended information for murder was filed against the accused who were ordered re-arrested without the amount of bail being fixed, the new charge being a capital offense. The Court ruled therein that the amendment was proper, pursuant to Section 13, Rule 106 of the 1940 Rules of Court (now Section 14, Rule 110 of the 1985 Rules on Criminal Procedure), thus: Here these rules properly apply, since it is undisputed that the herein accused were not yet arraigned before the competent court when the complaint for homicide was amended so as to charge the crime of murder. Upon the authority of said rules, the amendment could therefore be made even as to substance in order that the proper charge may be made. The claim that such amendment can only refer to matters of specification affecting the elements constituting the crime is not correct, for there is nothing in the rule to show that the nature of the amendment should only be limited to matters of specification. The change may also be made even if it may result in altering the nature of the charge so long as it can be done without prejudice to the rights of the defendant. Be that as it may, it is quite plausible under Section 14 of Rule 110 that, instead of an amendment, an information for homicide may also be dismissed before the accused pleads, to give way to the filing of a new information for murder. This may be deduced from the pronouncement of the Court in the aforecited case of Dimalibot, to wit: This clearly appears from the second part of Section 13 of Rule 106 which says that, if it appears before judgment that a mistake has been made in charging the proper offense, the court may dismiss the

original information and order the filing of a new one provided the defendant may not be placed in double jeopardy. If a new information may be ordered at any time before judgment no reason is seen why the court may not order the amendment of the information if its purpose is to make it conformable to the true nature of the crime committed. . . . In the subsequent case of Teehankee, Jr. vs. Madayag, et al., of Rule 110 was clarified to mean as follows:
31

however, Section 14

It may accordingly be posited that both amendment and substitution of the information may be made before or after the defendant pleads, but they differ in the following respects: 1. Amendment may involve either formal or substantial changes, while substitution necessarily involves a substantial change from the original charge; 2. Amendment before plea has been entered can be effected without leave of court, but substitution of information must be with leave of court as the original information has to be dismissed; 3. Where the amendment is only as to form, there is no need for another preliminary investigation and the retaking of the plea of the accused; in substitution of information, another preliminary investigation is entailed and the accused has to plead anew to the new information; and 4. An amended information refers to the same offense charged in the original information or to an offense which necessarily includes or is necessarily included in the original charge, hence substantial amendments to the information after the plea has been taken cannot be made over the objection of the accused, for if the original information would be withdrawn, the accused could invoke double jeopardy. On the other hand, substitution requires or presupposes that the new information involves a different offense which does not include or is not necessarily included in the original charge, hence the accused cannot claim double jeopardy. In determining, therefore, whether there should be an amendment under the first paragraph of Section 14, Rule 110, or a substitution of information under the second paragraph thereof, the rule is that where the second information involves the same offense, or an offense which necessarily includes or is necessarily included in the first information, an amendment of the information is sufficient; otherwise, where the new information charges an offense which is distinct and different from that initially charged, a substitution is in order.

In any event, we are inclined to uphold the propriety of the withdrawal of the original informations, there having been no grave abuse of discretion on the part of the court in granting the motion and, more importantly, in consideration of the fact that the motion to withdraw was filed and granted before herein petitioners were arraigned, hence before they were placed in jeopardy. Thus, even if a substitution was made at such stage, petitioners cannot validly claim double jeopardy, which is precisely the evil sought to be prevented under the rule on substitution, for the simple reason that no first jeopardy had as yet attached. Consequently, we hold that although the offenses charged under the three new informations necessarily include those charged under the original informations, the substitution of informations was not a fatal error. A contrary ruling, to paraphrase from our former pronouncements, would sacrifice substantial justice for formal nuances on the altar of procedural technicalities. Furthermore, petitioner's right to speedy trial was never violated since the new informations were filed immediately after the motion to withdraw the original informations was granted. 2. The controversy over the jurisdiction of Judge Pornillos to entertain and act upon the new informations for murder, frustrated murder and illegal possession of firearms, is grounded on three points of disagreement. Firstly, it is argued that the new informations were prematurely filed considering that the order granting the withdrawal of the original informations had not yet become final and executory and that, as a matter of fact, the same was subsequently reconsidered and the case reinstated by Judge Villajuan. Therefore, so petitioners postulate, Judge Pornillos could not acquire jurisdiction over the same offense involving the same incident and the same accused. Secondly, petitioners contend that the dismissal of the original informations and the filing of new ones which were raffled to another branch of the court constituted forum shopping, and was tainted with malice considering the indecent haste with which the motion to withdraw the informations was filed, the order granting the same was issued, and the new informations were filed, all of which took place on the same day. Pursuant to the doctrinal ruling that the court first acquiring jurisdiction excludes the other courts, it is theorized that the cognizance of the case taken by Judge Villajuan barred Judge Pornillos from assuming jurisdiction thereover. Finally, the designation of respondent Prosecutor Dennis Villa-Ignacio (who was then First Assistant Provincial Prosecutor of Pasig, Rizal) as Acting Provincial Prosecutor of Bulacan was arbitrary and without any justifiable reason. It follows, therefore, so petitioners vigorously argue, that in the absence of such authority, the informations should be considered null and void by reason of which Judge Pornillos did not acquire jurisdiction over the same. On the other hand, respondents question the propriety of petitioners' filing of a petition for certiorari prohibition and mandamus in the Court of Appeals against the order of the lower court denying petitioners' motion to quash, claiming that the proper remedy was to proceed to trial on the merits and thereafter raise on appeal, as special defenses, the grounds invoked in the motion to quash.

It is a general rule that a nolle prosequi or dismissal entered before the accused is placed on trial and before he is called on to plead is not equivalent to an acquittal, 32 and does not bar a subsequent prosecution for the same offense. 33 It is not a final disposition of the case. 34 Rather, it partakes of the nature of a nonsuit or discontinuance in a civil suit and leaves the matter in the same condition in which it was before the commencement of the prosecution. 35 A dismissal is different from an acquittal. An order of dismissal which is actually an acquittal is immediately final and cannot be reconsidered. 36 Furthermore, an acquittal is always based on the merits, that is, the defendant is acquitted because the evidence does not show that defendant's guilt is beyond reasonable doubt; but a dismissal does not decide the case on the merits or that the defendant is not guilty. Dismissals terminate the proceedings, either because the court is not a court of competent jurisdiction, or the evidence does not show that the offense was committed within the territorial jurisdiction of the court, or the complaint or information is not valid or sufficient in form and substance. 37 For dismissal to be a bar under double jeopardy, it must have the effect of acquittal. All these go to show, therefore, that the dismissal of Criminal Cases Nos. 3642-M-93 to 3644-M-93 did not amount to an acquittal of herein petitioners. Consequently, the same did not immediately become final, hence petitioners could still file a motion for the reconsideration thereof. Moreover, such dismissal does not constitute a proper basis for a claim of double jeopardy. 38 Since jeopardy had not yet attached, herein petitioners were not prejudiced by the filing of the new informations even though the order of dismissal in the prior case had not yet become final. Neither did it affect the jurisdiction of the court in the subsequent case. In American legal practice, where a motion for an order of nolle prosequi is made, the only power to deny the motion would be based on failure of the district attorney to judiciously exercise his discretion. 39 In most cases, the motion will be readily granted and should not be refused unless the court has some knowledge that it is based on an improper reason or a corrupt motive. But such a motion to dismiss will not also be approved unless the court is satisfied that the administration of justice requires that the prosecution be ended, or if there appears to be a clear violation of the law. 40 Whatever may be the reason therefor, a denial of the motion to withdraw should not be construed as a denigration of the authority of the special prosecutor to control and direct the prosecution of the case, 41 since the disposition of the case already rests in the sound discretion of the court. This brings us to the question as to whether or not an order of dismissal may be subsequently set aside and the information reinstated. Again, in American jurisprudence, the authorities differ somewhat as to whether a nolle prosequi may be set aside and the cause reinstated. 42 Some cases hold that the nolle prosequi may be recalled and that the accused may be tried on the same information, 43 but before it can be retraced, set aside, cancelled, or struck off, the permission or assent of the court must be had and obtained, and such cancellation or retraction must be duly entered. According to other authorities, however, the entry of an unconditional nolle prosequi, not on the ground that the information is insufficient on its face, is an end to the prosecution of that information, and

suchnolle prosequi cannot afterward be vacated and further proceedings had in that case. 44 Still in some cases, it has been held that a nolle prosequi may be set aside by leave of court, so as to reinstate proceedings on the information, or unless it was entered by mistake. 45 In our jurisdiction, we follow the rule which allows an order of dismissal to be set aside by leave of court. In one case, it was held that in the absence of any statutory provision to the contrary, the court may, in the interest of justice, dismiss a criminal case provisionally, that is, without prejudice to reinstating it before the order becomes final or to the subsequent filing of a new information for the offense. 46 The rule that in cases of concurrent jurisdiction the court first acquiring jurisdiction will retain it to the end to the exclusion of other tribunals, is not to be given unyielding effect in all cases and it does not apply where the jurisdiction of the first court has come to an end in any legal way, such as by nolle prosequi. 47 The rule on exclusions is intended to prevent confusion and conflicts in jurisdiction and to prevent a person from being twice tried for the same offense, but no accused has a vested right to be tried in any particular court of concurrent jurisdiction; and when one court of concurrent jurisdiction voluntarily relinquishes it by a nolle prosequi or dismissal of the case, there can be no legal or logical reason for preventing the other court from proceeding. 48 With much more reason will this rule apply where only branches of the same court, and not different courts, are involved in the jurisdictional conflict. There was no forum shopping in the lower court with respect to the case involved. While the procedure adopted by the prosecution was somewhat cumbersome, it was not in bad faith and, accordingly, it did not affect the legality of the proceedings. There is no showing, and petitioners failed to prove otherwise, that the assignment by raffle of the new informations to another branch of the same court was intended to prejudice herein petitioners, or to place them under less favorable circumstances, or to find a court which would act favorably on the prosecution's case. The authority of the special prosecutor appointed by the Secretary of Justice to sign and file informations has long been recognized in this jurisdiction and it has been held that such information cannot be quashed on that account. There is nothing so sacrosanct in the signing of complaints, holding of investigations, and conducting prosecutions that only an officer appointed by the President or one expressly empowered by law be permitted to assume these functions. 49 And any irregularity in the appointment does not necessarily invalidate the same if he may be considered a de facto officer. 50 Of course, where the person who signed the information was disqualified from appointment to such position, the information is invalid and the court does not acquire jurisdiction to try the accused thereon. 51 Such is not, however, the situation obtaining in the case at bar. It will be noted that respondent prosecutor was designated by the Secretary of Justice to handle the re-investigation and prosecution of the case against petitioners pursuant to Department Order No. 369. Petitioners failed to show any irregularity in the issuance of said directive.

At any rate, the power of supervision and control vested in the Secretary of Justice under Presidential Decree No. 1275 had been broadened beyond the confines of the old law, that is, Section 1679 of the Revised Administrative Code, wherein the power of the Secretary was then limited only to certain instances. Pertinently, in Aguinaldo, et al. vs. Domagas, et al., 52 we said: The Court notes, however; that Department of Justice Order No. 85 was issued pursuant to, among others, P.D. No. 1275 issued on 11 April 1978 which provides: Sec. 1. Creation of the National Prosecution Service; Supervision and Control of the Secretary of Justice. There is hereby created and established a National Prosecution Service under the supervision and control of the Secretary of Justice, to be composed of the Prosecution Staff in the Office of the Secretary of Justice and such number of Regional State Prosecution Offices, and Provincial and City Fiscal's Offices as are hereinafter provided, which shall be primarily responsible for the investigation and prosecution of all cases involving violations of penal laws. The power of supervision and control vested in the Secretary of Justice includes the authority to act directly on any matter within the jurisdiction of the Prosecution Staff, the Regional State Prosecution Office or the Office of the Provincial or City Fiscal and to review, modify or revoke any decision or action of the Chief of said staff or office. The power of supervision and control vested in the Secretary of Justice under P.D. No. 1275 had thus been broadened beyond the confines of the old law, i.e., Section 1679 of the Revised Administrative Code of 1917, where the power of the Secretary of Justice to designate acting fiscals or prosecutors to handle a particular case was limited to instances "when a provincial fiscal shall be disqualified by personal interest to act in a particular case or when for any reason he shall be unable, or shall fail to discharge any of the duties of his position." Indeed, the limitation upon which petitioners rely no longer subsisted under P.D. No. 1275. Having been duly designated in accordance with law, the panel of prosecutors had complete control of the investigation and prosecution of the case. . . . 3. Petitioners similarly dispute the legality of their arraignment on January 24, 1994, when Judge Pornillos entered a plea of not guilty for them after they refused to plead, without furnishing them copies of the information with the list of witnesses, after merely reading the informations against them and asking whether they understood the same, which were allegedly in palpable violation of Section 1, Rule

116. Petitioners aver that they were requesting for the suspension of the arraignment as they wanted to have a final copy of the order of January 24, 1994 which was merely read in open court, and to take the necessary steps to question the same by way of a motion for reconsideration or an appeal. In criminal cases, it is the duty of the accused, in addition to the other pleas authorized by law, to plead whether he is guilty or not of the crime charged. In that way and in that way only can an issue be created upon which the trial shall proceed. 53 Section 1 (c) of Rule 116 is quite explicit that where the accused refuses to plead, a plea of not guilty shall be entered for him. Hence, under such mandatory language, if the accused refuses to plead, the court must enter a plea of not guilty. The words are so plain and unambiguous that no construction is necessary. It actually calls for a literal application thereof. Any explanation or defense which petitioners would want to invoke can be properly raised during the trial, but they cannot refuse to enter their plea. Nonetheless, the alleged defect in their arraignment on January 24, 1994 is deemed to have been cured when they were again arraigned on February 18, 1994 with the assistance of counsel de oficio, and the information was read to them in the vernacular. In conclusion, considering that Branch 10 of the same trial court handling Criminal Cases Nos. 4004-M-93 to 4007-M-93 legally acquired jurisdiction over the new informations which we have likewise declared valid, petitioners may be prosecuted thereunder. II. On the Petition for Habeas corpus This petition is predicated mainly on petitioners' asseveration that the court which issued the warrant for their arrest had no jurisdiction over the case, hence their detention should be deemed illegal. We have earlier declared that Branch 10 of the trial court acquired jurisdiction over the new set of informations. Consequently, the warrant of arrest issued on the bases of said informations filed therein and the subsequent detention of herein petitioners pursuant thereto are valid. What instead has to be resolved is the corollary issue of whether the petition for habeas corpus was properly filed together with their present petition for certiorari andmandamus. The writs of habeas corpus and certiorari may be ancillary to each other where necessary to give effect to the supervisory powers of the higher courts. A writ of habeas corpus reaches the body and the jurisdictional matters, but not the record. A writ of certiorari reaches the record but not the body. Hence, a writ of habeas corpus may be used with the writ of certiorari for the purpose of review. 54 However, habeas corpus does not lie where the petitioner has the remedy of appeal or certiorari because it will not be permitted to perform the functions of a writ of error or appeal for the purpose of reviewing mere errors or irregularities in the proceedings of a court having jurisdiction over the person and the subject matter. 55

Neither can we grant the writ at this stage since a writ of habeas corpus is not intended as a substitute for the functions of the trial court. In the absence of exceptional circumstances, the orderly course of trial should be pursued and the usual remedies exhausted before the writ may be invoked. Habeas corpus is not ordinarily available in advance of trial to determine jurisdictional questions that may arise. 56 It has to be an exceptional case for the writ of habeas corpus to be available to an accused before trial. 57 In the absence of special circumstances requiring immediate action, a court will not grant the writ and discharge the prisoner in advance of a determination of his case in court. 58 In the case under consideration, petitioners have dismally failed to adduce any justification or exceptional circumstance which would warrant the grant of the writ, hence their petition therefor has to be denied. In addition, a petition for habeas corpus is not the appropriate vehicle for asserting a right to bail or vindicating its denial. In the case of Enrile vs. Salazar, etc., et al., 59 we held that: The criminal case before the respondent Judge was the normal venue for invoking the petitioner's right to have provisional liberty pending trial and judgment. The original jurisdiction to grant or deny bail rested with said respondent. The correct course was for petitioner to invoke that jurisdiction by filing a petition to be admitted to bail, claiming a right to bail per se by reason of the weakness of the evidence against him. Only after that remedy was denied by the trial court should the review jurisdiction of this Court have been invoked, and even then, not without first applying to the Court of Appeals if appropriate relief was also available there. III. On the Motion to Cite for Contempt The records show that on February 24, 1994, this Court issued a temporary restraining order, pursuant to its resolution in Administrative Matter No. 94-1-13RTC which is a petition for change of venue filed by the Vinculados, requiring Judges Felipe N. Villajuan and Victoria Villalon-Pornillos to cease and desist from hearing the criminal cases involving herein petitioners which were pending before them. 60 Subsequently, another resolution was issued in said cases, dated March 1, 1994, with the following directive: ACCORDINGLY, without prejudice to the final determination as to which of the two (2) sets of information will be upheld or prevail, the Executive Judge of the Regional Trial Court of Malolos, Bulacan is hereby directed to transfer all the aforementioned criminal cases filed against Mayor Honorato Galvez, et al. now in the Regional Trial Court of Malolos, Bulacan, to the Executive Judge, Regional Trial Court of Quezon City for raffle as one (1) single case among its branches and for the branch concerned, after raffle, to proceed with all deliberate dispatch after the issues raised in CA-G.R. SP No. 33261 have been resolved with finality. 61

As a consequence, the seven informations which were docketed as Criminal Cases Nos. Q-94-55481 to Q-94-55487 were assigned to and are now pending trial on the merits before Branch 103 of the Regional Trial Court of Quezon City, presided over by Judge Jaime N. Salazar, Jr. Petitioners now assert that Judge Salazar and Prosecutor Villa-Ignacio proceeded with the trial of the cases despite the aforestated directives in the above cited resolutions. We find no merit in the motion to cite them for contempt. The records reveal that there was a manifestation dated May 31, 1994 62 filed by the Solicitor General wherein the latter manifested his conformity to the agreement made between the prosecution and the defense before Judge Salazar, the pertinent part of which agreement is as follows: 1. During the hearing on May 26, 1994, the prosecution, through Senior State Prosecutor Dennis Villa-Ignacio, the defense through Justice Alfredo Lazaro, and this Honorable Court agreed that the trial in these cases shall proceed on condition that: (a) the defense shall not be deemed to have waived any issue or objection it has raised before the Supreme Court in G.R. No. 114046; and (b) that the trial shall also be without prejudice to whatever decision and resolution the Supreme Court may render in the case before it. Counsel for petitioners, retired Justice Alfredo Lazaro, takes issue with said agreement on the pretension that the same is not the true agreement of the parties, but he failed to state what they actually agreed upon. Withal, the resolutions of this Court in the petition for change of venue, as well as the cease and desist order issued therein, are clearly directed against the two aforenamed regional trial judges in Malolos, Bulacan. By no stretch of the imagination can we interpret the same to include Judge Jaime N. Salazar, Jr. of Quezon City. For that matter, the issues involved in this petition for certiorari do not necessarily require a suspension of the proceedings before the present trial court considering that the main petition hinges only on a determination of which set of informations shall constitute the indictments against petitioners and for which charges they shall stand trial. Whichever set of informations prevails, the evidence of the prosecution and defense will more or less be the same and can be utilized for the charges therein. Hence, no cogent reason exists for the suspension of the proceedings before the court below. As a final word, while it may well be that both sets of information validly exist for the nonce, to allow both of them to subsist will only serve to confuse and complicate the proceedings in the cases therein. Brushing aside procedural technicalities, therefore, it becomes exigent to now consider and declare the four informations for murder, frustrated murder and illegal possession of firearms as having amended and superseded the original three informations for homicide and frustrated homicide, there being no substantial rights of herein petitioners which may be affected thereby. Correspondingly, the three informations for homicide and frustrated homicide should be ordered withdrawn from the Quezon City trial court's docket.

WHEREFORE, judgment is hereby rendered DISMISSING the petition for certiorari and mandamus together with the petition for habeas corpus; DENYING, for lack of merit, the motion to cite respondent judge and prosecutor for contempt and to annul proceedings; and ORDERING the withdrawal and invalidation of the three informations for homicide and frustrated homicide against petitioners from the docket of Branch 103 of the Regional Trial Court of Quezon City. SO ORDERED. Marcelo v. Court of Appeals (Case Digest) EDWARD T. MARCELO, DIONILO D. MARFIL, CELIA C. CABURNAY, and DANIEL T. PASCUAL, petitioners, vs. THE COURT OF APPEALS, THE PEOPLE OF THE PHILIPPINES, HON. PEDRO T. SANTIAGO, in his capacity as The Presiding Judge of the Regional Trial Court of Quezon City, Branch 101, and THE QUEZON CITY PROSECUTOR, respondents. G.R. No. 106695 August 4, 1994 DAVIDE, JR., J.: Facts: In a complaint-affidavit sworn to on 18 March 1991 and filed with the Office of the City Prosecutor of Quezon City, Jose T. Marcelo charged the petitioners with falsification of public documents committed by forging the signature of Jose P. Marcelo, Sr. in six voting trust agreements (VTAs). Submitted in support of the affidavit-complaint were the findings of the National Bureau of Investigation (NBI) and of the PC/PNP Crime Laboratory that the signature on the VTAs purporting to be that of Jose P. Marcelo, Sr. and the specimen or standard signature of the latter were not written by one and the same person. The VTAs were purportedly executed in Quezon City and acknowledged before petitioner Dionilo Marfil, a notary public. After conducting a preliminary investigation, Assistant City Prosecutor Domingo Israel found more than sufficient evidence of the forgery of the signature of Jose P. Marcelo, Sr., as found and concluded by two (2) national police agencies, the NBI and PCCL, and recommended the filing of the case in court. On 30 May 1991, an information for falsification of public documents was filed with the Regional Trial Court (RTC) of Quezon City, docketed as Criminal Case No. Q-9121285, and raffled to Branch 96 thereof (hereinafter Bersamin court). On 6 June 1991, the petitioners filed with the Office of the City Prosecutor of Quezon City a Motion for Review seeking the deferment of the filing of the information or if one had been filed, the suspension of the criminal proceedings and the reversal

of the Israel resolution. On 15 November 1991, the Review Committee handed down a resolution, approved by Acting City Prosecutor Lydia Navarro on 29 November 1991, recommending the reversal of the Israel resolution and the withdrawal of the information in Criminal Case No. Q-91-21285. Then on 5 December 1991, the petitioners filed a Manifestation and Motion informing the Bersamin court of the reversal and praying for the dismissal of the case. This was followed on 10 December 1991 by the motion of Assistant City Prosecutor Conrado M. Jamolin which prayed for the withdrawal of the information in Criminal Case No. Q-91-21285 because of the resolution of the review committee. The private prosecutor opposed this motion. In the meantime too, specifically on 10 December 1991, the private complainant filed with the Secretary of Justice an appeal from the 15 November 1991 resolution of the Review Committee. On 13 December 1991, Judge Bersamin, agreeing with the findings and conclusions of the Review Committee, issued an order, the dispositive portion of which reads: ACCORDINGLY, the Motion to Dismiss of the accused and the Motion to Withdraw Information of the public prosecutor are hereby granted and this case is hereby dismissed without costs. On 27 January 1992, then Secretary of Justice Silvestre R. Bello III handed down a resolution granting the complainants appeal, reversing the 15 November 1991 Resolution of the Review Committee, and ordering the filing of a new information. ISSUE: whether a pre-arraignment dismissal of a criminal case by the trial court, which relied on the reversal by the Review Committee of the Office of the City Prosecutor of the investigating prosecutors resolution to file the information, bars the filing of a new information for the same offense after the Secretary of Justice reversed the resolution of the review committee. Ruling: SC ruled that the trial court in a criminal case which takes cognizance of an accuseds motion for review of the resolution of the investigating prosecutor or for reinvestigation and defers the arraignment until resolution of the said motion must act on the resolution reversing the investigating prosecutors finding or on a motion to dismiss based thereon only upon proof that such resolution is already final in that no appeal was taken therefrom to the Department of Justice. It may be observed that the granting of both motions is a serious contradiction in that upon withdrawal of the information, which is the logical consequence of the grant of the motion to withdraw, there no longer remained any case to dismiss. In fine, the withdrawal of the information rendered moot the motion to dismiss.

The withdrawal of the information in Criminal Case No. Q-91- 21285, or even the dismissal of the said case as decreed by the Bersamin court, did not bar the filing of a new information as directed by the Secretary of Justice in his Resolution of 27 January 1992. No jeopardy had attached as a result of the earlier termination of Criminal Case No. Q-91-21285 because the petitioners therein had not been arraigned and had, in fact, asked for its dismissal for a cause other than that which would constitute double jeopardy. On the contrary, the filing of the new information in Criminal Case No. Q-92-28104 straightened the course of criminal justice which had earlier gone awry due to the precipitate action of the Bersamin court. Nor may it be said that the prosecutor who filed the information had no authority to do so. The Santiago court, therefore, correctly denied the petitioners motion to quash in Criminal Case No. Q-92-28104 and the Court of Appeals committed no reversible error in dismissing the petition in CA-G.R. SP No. 27681. It must also be noted that the petitioners had already been arraigned in Criminal Case No. Q-92-28104 and had participated in the trial on the merits by attending the reception of the testimonies of the prosecution witnesses and even terminating the cross-examination of some of them. WHEREFORE, the instant petition is DENIED. The challenged decision of the Court of Appeals in CA-G.R. SP No. 27681 is hereby AFFIRMED. SO ORDERED. SOTERA PAULINO MARCELO, GABRIELA M. ANGELES, SIMEONA CUENCO, EMILIA MARCELO and RUBEN MARCELO, petitioners, vs. HON. COURT OF APPEALS, FERNANDO CRUZ and SERVANDO FLORES,respondents. DECISION VITUG, J.: The reversal of the 28th November 1996 decision[1] of the Court of Appeals setting aside that of the Regional Trial Court (RTC), Branch 19, of Malolos, Bulacan, is sought in this petition for review on certiorari. Petitioners seek the reinstatement of the RTC decision which has ordered respondents Fernando Cruz and Servando Flores to return the ownership and possession of a portion of unregistered and untitled land located in Sta. Lucia, Angat, Bulacan, to herein petitioners. It would appear that on 06 October 1982, herein petitioners, heirs of the deceased Jose Marcelo, filed with the Regional Trial Court of Malolos, Bulacan, an action for the recovery of a portion of unregistered land in Sta. Lucia, Angat, Bulacan. The complaint, later amended on 12 October 1983, averred that two parcels of land in Sta. Lucia, declared for taxation purposes under Tax Declarations No. 2880 and No. 2882, owned by the late Jose Marcelo and his spouse, Sotera

Paulino-Marcelo, had been encroached, to the extent of 7,540[2] square meters thereof, by respondents Fernando Cruz and Servando Flores. In their answer, respondent Cruz and Flores denied the allegations of petitioners, assailing at the same time the jurisdiction of the trial court to act on the complaint which, it was claimed, had effectively asserted a cause of action for ejectment (unlawful detainer). The appellate court adopted the summary of evidence made by the trial court; thus: Evidence adduced by the plaintiffs through the testimony of plaintiff Gabriela Angeles showed that the parcel of land subject of litigation covering Lot 3098 and embraced under Tax Declaration No. 2882 (Exh. A) was originally owned by spouses Jose Marcelo and Sotera Paulino and they had been in continuous possession of said property since 1939. Following the death of plaintiffs father in 1965, they discovered in 1967 that a portion of said property had been encroached by defendant Fernando Cruz. Plaintiffs caused the relocation survey of said property and per plan of Lot 3096 and Lot 3098 of the Angat Cadastre as surveyed for the heirs of Jose Marcelo (Exh. B), 7540 square meters of Lot 3098 had been encroached by defendant Fernando Cruz as indicated in the shaded portion of said plan (Exh. B-1). Defendant Fernando Cruz sold his property with an area of 13,856 square meters to defendant Servando Flores pursuant to a deed of sale (Kasulatan ng Bilihan) dated November 3, 1968 (Exh. C) which sale, includes the encroached portion (7,540 square meters of plaintiffs property) Defendant Fernando Cruz heretofore purchased the said property from Engracia dela Cruz and Vicente Marta and Florentino all surnamed Sarmiento, pursuant to a Kasulatan ng Partisyon sa Labas ng Hukuman at Bilihang Patulayan dated November 19, 1960 (Exh. D) covering an area of 6,000 square meters. The Tax Declaration No. 4482 (Exh. E) covering the property in the name of Jorge Sarmiento and Engracia Cruz covered an area of 6,800[3] square meters. As soon as the said property was sold to Fernando Cruz, the adjoining property described and classified as parang with an area of 7,856 square meters was declared by said Fernando Cruz in his name which circumstance, increased his landholding to 13,856 square meters (Exh. F). The said property was subsequently sold by defendant Fernando Cruz to defendant Servando Flores. According to Gabriela, they attempted to cultivate the disputed portion sometime in 1968, but were barred from doing so by defendant Servando Flores who claimed that the area was part of the land he bought from co-defendant Fernando Cruz. On the other hand, both defendants testified to refute plaintiffs evidence. They invariably declared that the portion sought to be recovered by plaintiffs is part of the land which defendant Fernando Cruz acquired in 1960 from the Heirs of Jorge Sarmiento; that as stated in their document (Exh 2), the land sold to defendant Fernando Cruz contained 6,000 square meters of palayero or riceland and 7,856 square meters of parang or pasture land; that defendant Fernando Cruz caused the entire parcel to be surveyed sometime in 1967 (Exhs. 3 & 4), which he then declared for taxation purposes under Tax Declaration No. 8505 (Exh. F); that on

November 3, 1968 defendant Fernando Cruz sold the whole lot to defendant Servando Flores (Exh. I), who thereupon occupied and cultivated it.[4] Evaluating the evidence of the contending parties, the trial court found and ratiocinated: The crux of the matter at issue apparently resolves on the so-called pasture land (parang) supposedly sold by the Sarmientos and Engracia de la Cruz to defendant Fernando Cruz. The said 'parang' was never included and/or embraced in the Tax Declaration No. 4882 (Exh. E) of the Sarmientos at the time of the said sale in favor of defendant Fernando Cruz pursuant to an extrajudicial partition with sale dated November 19, 1960 (Exh. D). This is evident as indicated by the fact that the same was only declared by Fernando Cruz in his name in 1961 as evidenced by the tax declaration issued in his favor (Exh. F). On the other hand, the said parang is a part and parcel of plaintiffs property to which they had been in possession thereof prior to World War II and evidenced by Tax Declaration No. 2882 (Exh. A). The plan of Lot 3096 and Lot 3098 of the Angat Cadastre (Exhs. B and B-1) inevitably indicated that what has been encroached by defendants refers to the parang of 7,540 square meters which defendant Fernando Cruz declared the same in his name in 1961. This explains the unnecessary increase of his property from 6,000 square meters which he purchased from the Sarmientos pursuant to extrajudicial partition with sale and embraced under Tax Declaration No. 4882 (Exh. E), to 13,856 square meters.[5] The trial court thereupon ruled in favor of petitioners; the dispositive portion of its decision concluded: WHEREFORE, judgment is hereby rendered against the defendants ordering the following: a. b To return the ownership and possession of 7,540 square meters to the plaintiffs as indicated in the relocation survey plan; and To pay attorneys fees in the amount of P5,000.00;

No actual and/or moral damages (sic) is awarded for lack of factual evidence. The counterclaim is hereby dismissed for lack of factual and/or legal basis.[6] Respondents Cruz and Flores went to the Court of Appeals; in its now assailed decision, the appellate court reversed the judgment of the court a quo. Petitioners moved for a consideration; the motion, however, was denied. In this latest recourse, petitioners assail the holding of the Court of Appeals that the action initiated in 1982 by petitioners against respondent Flores would not prosper on the theory that Flores already has acquired ownership of the disputed land by ordinary acquisitive prescription. Petitioners argue that 1. The respondent court erred in not applying the doctrine laid down by this Honorable Court in Tero vs. Tero, 131 SCRA 105 considering that respondents never

acquired the 7,540 square meters lawfully, as the respondent court already stated that what was sold to respondent Cruz was the 6,800 square meters which he then sold to respondent Flores, hence respondents can not account as to how they acquire said lot, whereas the petitioner proved the 7,540 square meters formed part of 19,231 square meters of their parents in their possession since 1939. 2. The respondent court erred in disregarding the findings of facts of the trial court, and substitute its own perception of the facts contrary to the incontrovertible evidence.[7] Petitioners assert that the property sold by the Sarmientos to respondent Cruz on 19 November 1960, under a Kasulatan ng Partisyon sa Labas ng Hukuman at Bilihang Patuluyan, covers only the palayero or riceland, which measure about 6,000 square meters, and that the parang, containing 7,856 square meters, has not been included. The petition must be denied. Contrary to the insistence of petitioners, the Kasulatan ng Partisyon sa Labas ng Hukuman at Bilihang Patuluyan. executed on 19 March 1960 by Engracia dela Cruz (widow of Jorge Sarmiento) and her children Vicente Sarmiento, Maria Sarmiento and Florentino Sarmiento, pertained not only to the palayero but also to the parang as well; this agreement provided thus: 1. Na akong si Engracia de la Cruz at ang aking yumao ng asawang si Jorge Sarmiento (nuong nabubuhay ito) ay nakapagpundar ng isang lupa na ang buong description ay gaya ng sumusunod: Isang parselang lupang PALAYERO na may kasamang PARANG (Cogonales) na matatagpuan sa Barrio Ng Santa Lucia, Angat, Bulacan, P.I. Ang Palayero ay may sukat na 6,000 metros cuadrados, klasipikado 2-b, amillarado P270.00 Tax No. 4482; at ang parang ay may sukat na 7,856 metros cuadrados. Humahangga sa Norte, kay Antonio de la Rosa; Este, kina Fabian Garcia at Juan Geronimo; Sur, Kina Miguel Illescas, Ciriaco Reyes, y Juan de la Cruz; Oeste, Juan de la Cruz hoy Jose Marcelo y Mariano de la Cruz hoy Felip de Leon. Walang mejoras at ang hangganan sa paligid ay makikilala sa pamamagitan ng matutuwid na sikang o pilapil na buhay. 2. Ayon sa Tax No. 4482 ay lupang palayero lamang ang nakatala, subalit itoy mayroong kasamang parang na hindi lamang naipatala niyang nakaraang pasukan ng lupa sa tanggapan ng Assessor Provincial, kayat ngayon ay magalang naming hinihiling na matala ang naturang parang.[8] (Emphasis supplied) Shortly after the execution of the deed of sale in his favor, respondent Cruz declared both parcels, i.e., the palayero and the parang, for taxation purposes in 1960 in the Office of the Provincial Assessor and forthwith a new tax declaration was issued in his name for the entire 13,856 square meter property. The trial court itself likewise found that the sale by the Sarmientos to respondent Cruz covered both the riceland and the pasture land; it said:

x x x. It is worthy to note that the ownership of the adjoining property by defendant Fernando Cruz originated from an extrajudicial partition with sale (Kasulatan ng Partisyon sa Labas ng Hukuman at Bilihang Patuluyan dated November 19, 1960 x x x. Under the said document, Engracia de la Cruz and her children Vicente, Marta, and Florentino, all surnamed Sarmiento, sold to defendant Fernando Cruz a rice land containing an area of 6,000 square meters and embraced under Tax Declaration No. 4482 and a pasture land (parang) containing an area of 7,856 square meters. x x x[9] In turn, respondent Cruz sold, on 03 November 1968, the 13,856 square meters of land to respondent Flores under a Kasulatan ng Bilihan. Respondent Flores immediately took possession of the property to the exclusion of all others and promptly paid the realty taxes thereon. From that time on, Flores had been in possession of the entire area in the concept of an owner and holding it in that capacity for almost fourteen (14) years before petitioners initiated their complaint on 06 October 1982. Acquisitive prescription is a mode of acquiring ownership by a possessor through the requisite lapse of time. In order to ripen into ownership, possession must be in the concept of an owner, public peaceful and uninterrupted.[10] Thus, mere possession with a juridical title,such as, to exemplify, by a usufructuary, a trustee, a lessee, an agent or a pledgee, not being in the concept of an owner, cannot ripen into ownership by acquisitive prescription,[11] unless the juridical relation is first expressly repudiated and such repudiation has been communicated to the other party.[12] Acts of possessory character executed due to license or by mere tolerance of the owner would likewise be inadequate.[13]Possession, to constitute the foundation of a prescriptive right, must be en concepto de dueno, or, to use the common law equivalent of the term, that possession should be adverse; if not, such possessory acts, no matter how long, do not start the running of the period of prescription.[14] Acquisitive prescription of dominion and other real rights may be ordinary or extraordinary. Ordinary acquisitive prescription requires possession of things in good faith and with just title for the time fixed by law; [15] without good faith and just title, acquisitive prescription can only be extraordinary in character. As regards, real or immovable property, Article 1134 of the Civil Code provides: ART. 1134. Ownership and other real rights over immovable property are acquired by ordinary prescription through possession of ten years. Ordinary acquisitive prescription demands, as aforesaid, that the possession be in good faith and with just title.[16] The good faith of the possessor consists in the reasonable belief that the person from whom the thing is received has been the owner thereof and could thereby transmit that ownership. [17] There is, upon the other hand, just title when the adverse claimant comes into possession of the property through any of the modes recognized by law for the acquisition of ownership or other real rights, but that the grantor is neither the owner nor in a position to transmit the right.[18] In Doliendo vs. Biarnesa,[19] the Supreme Court has explained the law in Article 1130 of the Civil Code which states that the title for prescription must be true and valid. Thus:

We think that this contention is based on a misconception of the scope and effect of the provisions of this article of the Code in its application to ordinary prescription. It is evident that by a titulo verdadero y valido in this connection we are not to understand a titulo que por si solo tiene fuerza de transferir el dominio sin necesidad de la prescricion (a title which of itself is sufficient to transfer the ownership without the necessity of the lapse of the prescription period); and we accept the opinion of a learned Spanish law writer who holds that the titulo verdadero y valido as used in this article of the code prescribes a titulo colorado and not merely putativo; a titulo colorado being one which a person has when he buys a thing, in good faith, from one whom he believes to be the owner, and a titulo putativo being one which is supposed to have preceded the acquisition of a thing, although in fact it did not, as might happen when one is in possession of a thing in the belief that it had been bequeathed to him. (Viso Derecho Civil, Parte Segunda, p. 541)[20] The records of the case amply supports the holding of the appellate court that the requirements for ordinary prescription hereinabove described have indeed been duly met; it explained: In the instant case, appellant Servando Flores took possession of the controverted portion in good faith and with just title. This is so because the said portion of 7,540 square meters was an integral part of that bigger tract of land which he bought from Fernando Cruz under public document (Exh. I) As explicitly mentioned in the document of sale (Exh. I) executed in 1968, the disputed portion referred to as parang was included in the sale to appellant Flores. Parenthetically, at the time of the sale, the whole area consisting of the riceland and pasture land was already covered by a tax declaration in the name of Fernando Cruz (Exh. F) and further surveyed in his favor (Exhs. 3&4). Hence, appellant Flores possession of the entire parcel which includes the portion sought to be recovered by appellees was not only in the concept of an owner but also public, peaceful and uninterrupted. While it is true that the possession of the entire area by his predecessor-in-interest (Fernando Cruz) may not have been peaceful as it was indeed characterized with violence which resulted in the death of Jose Marcelo, this cannot be said of appellant Flores possession of the property, in respect of which no evidence to the contrary appears on record.[21] This Court finds no cogent reasons to reverse the above findings of the appellate court and thus gives its affirmance to the assailed decision. WHEREFORE, the petitioner for review on certiorari is DENIED. No costs. SO ORDERED.

Peter Paul Dimatulac and Veronica Dimatulac, petitioners vs. Hon. Sensinando Villon, et. al,respondents. Facts:

SP03 Virgilio Dimatulac was shot dead at his residence inPampanga. A complaint for murder was filed in theMTC and after preliminary investigation, JudgeDesignate David issued warrants of arrest against theaccused. Only David, Mandap, Magat, and Yambao were arrestedand it was only Yambao who submitted his counter-affidavit. Judge David then issued a resolution findin greasonable ground that the crime of murder has been committed and that the accused is probably guilty hereof. Though it was not clear whether Pampanga AssistantProvincial Prosecutor Sylvia Alfonso-Flores acted motu proprio, or upon motion of the private respondents, she conducted a reinvestigation and resolved that the Yabuts and Danny were in conspiracy, along with the other accused, and committed homicide. Before the information for homicide was filed, thePetitioner appealed the resolution of Alfonso-Flores tothe Secretary of Justice. However, ProvincialProseutor Maranag ordered for the release of David,Mandap, Magat, and Naguit. An information forhomicide was also filed before the Regional Trial Court. Judge Raura approved the cash bonds of the Yabuts and r ecalled the warrants of arrest against them. Private Prosecutor Amado Valdez then filed a Motion to issue hold departure order and Urgent Motion to defer proceedings. Judge Roura deferred the resolution of the first Motion and denied the second. He also set the arraignment of the accused. The petitioners filed a Motion to inhibit Judge Roura for hastily setting the date for arraignment pending the appeal in the DOJ and for prejudging the matter. They also filed a Petition for prohibition with the Court of Appeals. Public Prosecutor Datu filed a Manifestation and Comment with the trial court and opposed the inhibition of Roura. He also stated that he will nolonger allow the private prosecutor to participate.Judge Roura voluntarily inhibited himself and was replaced by Judge Villon. The Petitioners filed with the RTC a Manifestation submitting documentary evidence to support theircontention that the offense committed was murder. Judge Villon ordered for the resetting of the arraignment. The Yabuts entered a plea of not guilty. The petitioners then filed a Urgent Motion to set aside arraignment. Secretary Guingona of the DOJ resolved the appeal in favor of the petitioners. He also ruled that treachery was present. The Yabuts opposed the Manifestation because they have already been arraigned and they would be put under double jeopardy. The Secretary of Justice then set aside his order and theappeal was held not and academic due to the previous arraignment of the accused for homicide. Judge Villon denied the Motion to set aside arraignment.The motion for reconsideration was also denied. Hence, this petition for certiorari/prohibition and mandamus. Issues: Whether the Office of the Provincial Prosecutor committed grave abuse of discretion in reinvestigating the case without having therespondents within the custody of the law and forfiling the information pending the appeal of the resolution with the DOJ.

Whether Hon. Villon acted with grave abuse of discretionin proceeding with the arraignment and for denyingthe Motions to set aside the arraignment. Whether the Secretary of Justice committed grave abuse of discretion in reconsidering his order. Decision: Petition is GRANTED. Alfonso-Reyes was guilty of having acted with graveabuse of discretion for conducting a reinvestigation despitethe fact that the Yabuts were still at large. Though Sec. 5,Rule 112 states that the prosecutor is not bound by thefindings of the judge who conducted the investigation, theresolution should be based on the review of the record andevidence transmitted. Hence, she should have sustained therecommendation since all the accused, except Yambao,failed to file their counter-affidavits. It is impossible forAlfonso-Reyes to not have known the appeal filed with theDOJ. The filing of an appeal is provided in Sec. 4, Rule 112 ofthe Rules of Court. There is nothing in the law whichprohibits the filing of an appeal once an information is filed. Judge Roura acted with grave abuse of discretion fordeferring the resolution to the motion for a hold departureorder. Since the accused were out on bail, the Motion shouldhave been granted since they could have easily fled. Thoughhe is not bound to the resolution of the DOJ, he should haveperused the documents submitted. The DOJ was also in grave abuse of its discretion for setting aside its order. In doing so, it has relinquished its power of control and supervision of the Public Prosecutor. The state has been deprived of due process. Hence, the dismissal of the case is null and void and double jeopardy cannot be invoked by the accused.

J. P. WEBB, petitioner, vs.HONORABLE RAUL E. DE LEON, the Presiding Judge of the Regional Trial Court of LAURO VIZCONDE, intervenor. G.R. No. 121234 August 23, 1995HUBERT G.R. No. 121245 August 23, 1995 MICHAEL A. GATCHALIAN, petitioner, vs. HONORABLE RAUL E. DE LEON, the Presiding Judge of the Regional Trial Court of Paraaque, Branch 258, HONORABLE ZOSIMO V. ESCANO, the Presiding Judge of the Regional Trial Court of Paraaque, Branch 259, PEOPLE OF THE PHILIPPINES, ZENON L. DE GUIYAB, JR., ROBERTO LAO, PABLO FORMARAN, and NATIONAL BUREAU OF INVESTIGATION, and HONORABLE AMELITA G. TOLENTINO, the Presiding Judge of the Regional Trial Court of Paraaque, Branch 274, respondents. G.R. No. 121297 August 23, 1995 ANTONIO L. LEJANO, petitioner, vs. HONORABLE RAUL E. DE LEON, the Presiding Judge of the Regional Trial

Court of Paraaque, Branch 258, HONORABLE ZOSIMO V. ESCANO, the Presiding Judge of the Regional Trial Court of Paraaque, Branch 259, PEOPLE OF THE PHILIPPINES, ZENON L. DE GUIA, JOVENCITO ZUO, LEONARDO GUIYAB, JR., ROBERTO LAO, PABLO FORMARAN, and NATIONAL BUREAU OF INVESTIGATION, and HONORABLE AMELITA G. TOLENTINO, the Presiding Judge of the Regional Trial Court of Paraaque, Branch 274,respondents.

PUNO, J.: Before the Court are petitions for the issuance of the extraordinary writs of certiorari, prohibition and mandamuswith application for temporary restraining order and preliminary injunction to: (1) annul and set aside the Warrants of Arrest issued against petitioners by respondent Judges Raul E. de Leon and Amelita Tolentino in Criminal Case No. 95-404; (2) enjoin the respondents from conducting any proceeding in the aforementioned criminal case; and (3) dismiss said criminal case or include Jessica Alfaro as one of the accused therein. 1 From the records of the case, it appears that on June 19, 1994, the National Bureau of Investigation (NBI) filed with the Department of Justice a letter-complaint charging petitioners Hubert Webb, Michael Gatchalian, Antonio J. Lejano and six (6) other persons, 2 with the crime of Rape with Homicide. Forthwith, the Department of Justice formed a panel of prosecutors headed by Assistant Chief State Prosecutor Jovencio R. Zuo to conduct the preliminary investigation 3 of those charged with the rape and killing on June 30, 1991 of Carmela N. Vizconde; 4her mother Estrellita Nicolas-Vizconde, 5 and her sister Anne Marie Jennifer 6 in their home at Number 80 W. Vinzons, St., BF Homes, Paraaque, Metro Manila. During the preliminary investigation, the NBI presented the following: (1) the sworn statement dated May 22, 1995 of their principal witness, Maria Jessica M. Alfaro who allegedly saw the commission of the crime; 7 (2) the sworn statements of two (2) of the former housemaids of the Webb family in the persons of Nerissa E. Rosales and Mila S. Gaviola; 8 (3) the sworn-statement of Carlos J. Cristobal who alleged that on March 9, 1991 he was a passenger of United Airlines Flight No. 808 bound for New York and who expressed doubt on whether petitioner Webb was his co-passenger in the trip; (4) the sworn statement of Lolita Birrer, a former live-in partner of Gerardo Biong, who narrated the manner of how Biong investigated and tried to cover up the crime at bar; 9 (5) the sworn statements 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 dates 14 and that he was issued by the State of California Driver's License No. A8818707 on June 14, 1991. 15 Petitioner Webb likewise submitted the letter dated July 25, 1995 of Mr. Robert Heafner, Legal Attache of the US Embassy, citing certain records tending to confirm, among others, his arrival at San Francisco, California on March 9, 1991 as a passenger in United Airlines Flight No. 808. The other respondents Hospicio "Pyke" Fernandez, Michael Gatchalian, Antonio "Tony Boy" Lejano, Peter Estrada, Miguel Rodriguez and Gerardo Biong submitted sworn statements, responses, and a motion to dismiss denying their complicity in the rape-killing of the Vizcondes. 16 Only the respondents Joey Filart and Artemio "Dong" Ventura failed to file their counter-affidavits though they were served with subpoena in their last known address. 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 Information 19 against petitioners and their coaccused with the Regional Trial Court of Paraaque. 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. I Petitioners fault the DOJ Panel for its finding of probable cause. They insist that the May 22, 1995 sworn statement of Jessica Alfaro is inherently weak

and uncorroborated. They hammer on alleged material inconsistencies between her April 28, 1995 and May 22, 1995 sworn statements. They assail her credibility for her misdescription of petitioner Webb's hair as semi-blonde. They also criticize the procedure followed by the DOJ Panel when it did not examine witnesses to clarify the alleged incredulities and inconsistencies in the sworn statements of the witnesses for the NBI. We start with a restatement of the purpose of a preliminary investigation. Section 1 of Rule 112 provides that a preliminary investigation should determine " . . . whether there is a sufficient ground to engender a wellgrounded 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. 22Other jurisdictions utilize the term man of reasonable caution 23 or the term ordinarily prudent and cautious man.24 The terms are legally synonymous and their reference is not to a person with training in the law such as a prosecutor or a judge but to the average man on the street. 25 It ought to be emphasized that in determining probable cause, the average man weighs facts and circumstances without resorting to the calibrations of our technical rules of evidence of which his knowledge is nil. Rather, he relies on the calculus of common sense of which all reasonable men have an abundance. Applying these basic norms, we are not prepared to rule that the DOJ Panel gravely abused its discretion when it found probable cause against the petitioners. Petitioners belittle the truthfulness of Alfaro on two (2) grounds: (a) she allegedly erroneously described petitioner Webb's hair as semi-blond and (b) she committed material inconsistencies in her two (2) sworn statement, thus: 26 xxx xxx xxx To illustrate, the following are some examples of inconsistencies in the two sworn statements of Alfaro:

On whether Alfaro knew Carmela before the incident in question First Affidavit: She had NOT met Carmela before June 29, 1991. Second Affidavit: "I met her in a party sometime in February, 1991." On whether Alfaro saw the dead bodies First Affidavit: She did not see the three dead persons on that night. She just said "on the following day I read in the newspaper that there were three persons who were killed . . ." Second Affidavit: "I peeped through the first door on the left. I saw two bodies on top of the bed, bloodied, and in the floor, I saw Hubert on top of Carmela." On the alleged rape of Carmela Vizconde First Affidavit: She did not see the act of rape. Second Affidavit: She saw Hubert Webb "with bare buttocks, on top of Carmela and pumping, her mouth gagged and she was moaning and I saw tears on her eyes." On how Webb, Lejano, and Ventura entered the Vizconde house First Affidavit: "by jumping over the fence, which was only a little more than a meter high." Second Affidavit: They "entered the gate which was already open." On whether Alfaro entered the Vizconde house First Affidavit: She never entered the house. Second Affidavit: "I proceeded to the iron grill gate leading to the dirty kitchen." In its Resolution, the DOJ Panel ruled that these alleged misdescription and inconsistencies did not erode the credibility of Alfaro. We quote the pertinent ruling, viz.: 27 xxx xxx xxx

As regards the admissibility of Alfaro's statements, granting for purposes of argument merely that she is a co-conspirator, it is well to note that confessions of a co-conspirator may be taken as evidence to show the probability of the co-conspirator's participation in the commission of the crime (see People vs. Lumahang, 94 Phil. 1084). Furthermore, it is a well-established doctrine that conspiracy need not be proved by direct evidence of prior agreement to commit the crime. Indeed, "only rarely would such a prior agreement be demonstrable since, in the nature of things, criminal undertakings are only rarely documented by agreements in writing. Thus, conspiracy may be inferred from the conduct of the accused before, during and after the commission of the crime, showing that the several accused had acted in concert or in unison with each other, evincing a common purpose or design." (Angelo vs. Court of Appeals, 210 SCRA 402 [1992], citations omitted; People vs. Molleda, 86 SCRA 699). Neither can we discredit Alfaro merely because of the inconsistencies in her two sworn statements. InAngelo, the Court refused to discredit the testimony of a witness accusing therein petitioner for the slaying of one Gaviano Samaniego even though said witness failed to name Angelo in his affidavit which was executed five (5) months earlier. Granting, the Court continued, that a part of the witness' testimony is untrue, such circumstance is not sufficient to discredit the entire testimony of the witness. On August 7, 1995, another counsel for respondent Webb submitted his memorandum suggesting that the instant complaint "should not be decided within the month to give time to the NBI to coordinate with the FBI on the latter's inquiry into the whereabouts of Hubert Webb . . . and to check on our U.S.-based witnesses." In said memorandum, counsel for respondent Webb calls for the application of the maxim falsus in uno, falsus in omnibus arising from the inconsistencies of Alfaro's statements, among others. This is untenable. As held in Angelo: There is no rule of law which prohibits a court from crediting part of the testimony of a witness as worthy of belief and from simultaneously rejecting other parts which the court may find incredible or dubious. The maxim falsus in uno, falsus in omnibus is not a rule of law, let alone a general rule of law which is universally applicable. It is not a legal presumption either. It is merely a latinism describing the conclusion reached by a court in a particular case after ascribing to the evidence such weight or lack of weight that the court deemed proper. In the case before us, complainant reasoned out that Alfaro was then having reservations when she first executed the first statement and

held back vital information due to her natural reaction of mistrust. This being so, the panel believes that the inconsistencies in Alfaro's two sworn statements have been sufficiently explained especially specially so where there is no showing that the inconsistencies were deliberately made to distort the truth. Consequently, the probative value of Alfaro's testimony deserves full faith and credit. As it has been often noted, ex parte statements are generally incomplete because they are usually executed when the affiant's state of mind does not give her sufficient and fair opportunity to comprehend the import of her statement and to narrate in full the incidents which transpired (People vs. Sarellana, 233 SCRA 31 [1994]; Angelo vs. Court of Appeals, supra). In the case at bar, there is no dispute that a crime has been committed and what is clear before us is that the totality of the evidence submitted by the complainant indicate a prima faciecase that respondents conspired in the perpetration of the imputed offense. We note that the May 22, 1995 sworn statement of Alfaro was given with the assistance of counsel 28 and consists of six (6) pages, in single space reciting in rich details how the crime was planned and then executed by the petitioners. In addition, the DOJ Panel evaluated the supporting sworn statements of Nerissa Rosales and Mila Gaviola, former housemaids of the Webbs, Carlos J. Cristobal, a passenger in United Airlines Flight No. 808 and Lolita Birrer, a paramour of Gerardo Biong. The Panel assayed their statements as follows: 29 xxx xxx xxx According to Nerissa E. Rosales, a former housemaid of the Webb family, on June 29, 1991, between 7:00 o'clock and 8:00 o'clock in the evening, Hubert was at home inside his room with two male visitors. She knew it because she and her co-housemaid, Loany, were instructed by Hubert to bring them three glasses of juice. It was the last time she saw Hubert and was later told by then Congressman Webb that Hubert was in the United States. While Mila S. Gaviola, another former housemaid of the Webb family and who served as a laundry woman, claims, aside from corroborating the statement of Nerissa Rosales, that on June 30, 1991, she woke up at around 4:00 in the morning and as what she used to do, she entered the rooms of the Webbs to get their clothes to be washed. As a matter of fact, in that early morning, she entered Hubert's room and saw Hubert, who was only wearing his pants, already awake and smoking while he was sitting on his bed. She picked up Hubert's scattered clothes and brought them together with the clothes of the other members of the family to the laundry area. After taking her breakfast, she began washing the clothes of the Webbs. As she was washing the clothes of Hubert Webb, she noticed fresh bloodstains in his shirt. After she finished the laundry, she went to the servant's quarters. But feeling uneasy, she decided to go up to the stockroom near Hubert's room to see what he was doing. In the said stockroom, there is a small door going to Hubert's room and in that door there is a small opening

where she used to see Hubert and his friends sniffing on something. She observed Hubert was quite irritated, uneasy, and walked to and from inside his room. On that day, she noticed Hubert left the house at around 1:00 in the afternoon and came back at around 4:00 in the same afternoon and went inside his room using the secret door of the house. It was the last time that she saw Hubert until she left the Webb family. On the other hand, Carlos J. Cristobal alleged that on March 9, 1991, at about 10:00 in the morning, he was at the Ninoy Aquino International Airport as he was then scheduled to take the United Airlines Flight No. 808 at 2:00 in the afternoon for New York. At the airport's lobby, he saw then Congressman Freddie Webb with a male companion. He greeted him and Webb answered: "Mabuti naman, at ito, ihahatid ko ang anak ko papuntang Florida." He knew Freddie Webb because he often watched him then in a television show "Chicks to Chicks." He observed that the man whom Freddie Webb referred to as his son, was of the same height as Freddie. The son referred to has fair complexion with no distinguishing marks on his face. He (son of Webb) was then wearing a striped white jacket. When he and his children were already inside the plane, he did not see Freddie anymore, but he noticed his son was seated at the front portion of the economy class. He never noticed Freddie Webb's son upon their arrival in San Francisco. He claims that, while watching the television program "DONG PUNO LIVE" lately, he saw the wife of Freddie Webb with her lawyer being interviewed, and when she described Hubert as "moreno" and small built, with a height of five feet and seven inches tall, and who was the one who left for United States on March 9, 1991, he nurtured doubts because such description does not fit the physical traits of the son of Freddie, who left with him for United States on the same flight and date. Lolita Birrer, alleged that she know Gerardo Biong because she had an affair with him for almost three (3) years and in fact, she had a child with him who is now four (4) years old. Their relationship started in February, 1991 until she broke up with him in September 1993. She recalls that on June 29, 1991, at around 6:00 p.m., Biong invited her to play mahjong at the canteen of a certain Aling Glo located at the back of the Paraaque Municipal Hall. At about 2:30, in the early morning of January 30, 1991, the radio operator of the Paraaque police told Biong that he has a phone call. Before Biong went to the radio room, she was instructed to take him over and after somebody won the game, she followed Biong at the radio room where she overheard him uttering, "Ano?, Saan? Mahirap yan, Paano, o sige, aantayin kita, O ano?, dilaw na taxi, o sige." When he put the phone down, Biong told her, "Mayroon lang akong rerespondehan, ikaw muna ang maupo" and then, he went outside the canteen apparently waiting for somebody. Twenty minutes later, a

taxi, colored yellow, arrived with a male passenger sitting at the backseat and parked near the canteen. After it made some signals by blinking its headlight, Biong rode thereat at the front seat beside the driver and then, they left. She was not able to recognize the male passenger because the window of the taxi was tinted. Biong came back at around 7:00 of the same morning and when he arrived, he immediately washed his hands and face, and took his handkerchief from his pocket which he threw at the trash can. She asked him why he threw his handkerchief and he answered, "Hmp . . . amoy tae." She inquired what happened in BF Homes and he replied, "Putang inang mga batang iyon, pinahirapan nila ako." Biong later invited her for breakfast, but they first went to his office where she observed him doing something in his steel cabinet while he appeared to be uneasy. Moments later, Galvan, another policeman of Paraaque, arrived and said, "Oy Biong, may tatlong patay sa BF, imbestigahan mo" to which Biong answered, "Oo susunod na ako." Biong went to the office of Capt. Don Bartolome who offered to accompany him and with whom she asked permission to go with them. Before they proceeded to the place where the killings happened, she asked Biong if he knew the exact address and the latter immediately responded, "Alam ko na yon." She was surprised because Galvan never told him the place of the incident. As soon as they arrived at the Vizconde's residence, Biong instructed the housemaids to contact the victim's relatives, while the security guard fetched the barangay chairman and the president of the Homeowners Association. When all these persons were already in the house, Biong started recording the wounds of the victim. Inside the master's bedroom, she saw Biong took a watch from the jewelry box. Because she could not tolerate the foul odor, she and Capt. Bartolome went out of the room and proceeded to the dining area. On top of the dining table, she saw the scattered contents of a shoulder bag. Moments later, Biong came out from the room and proceeded to the front door to remove the chain lock; asked the keys from the housemaid and it was only then that the main door was opened. Biong noticed a stone in front of the broken glass of the door and requested Capt. Bartolome to go inside the servant's quarters as he doubted the housemaids' claim that they heard nothing unusual. Using the handle of his gun, Biong broke the remaining glass of the door panel. Bartolome then came out of the room and told Biong that he can hear the sound of the glass being broken. At the garage, Biong also noticed same marks on the hood of the car. On the following day, at around 12:00 noon, Biong arrived in her house together with the Vizconde housemaids. When Biong was preparing to take a bath, she saw him remove from his pocket the things she also saw from Vizconde's residence, to wit: calling cards, driver's license, ATM card, a crossed check worth P80,000.00, earrings, a ring, bracelet, necklace, and the watch he took from the jewelry box inside the room

of the Vizcondes. These jewelry items were later pawned by Biong for P20,000.00 at a pawnshop in front of Chow-Chow restaurant in Santos Avenue, Paraaque. The next day, she saw Biong took from his locker at the Paraaque Police Station an imported brown leather jacket, which the latter claimed to have been given to him by the person who called him up in the early morning of June 30, 1991. Since then, Biong has been wearing said jacket until they broke up sometime in 1993. She observed that Biong seemed not interested in pursuing the investigation of the Vizconde case. In fact, when Biong and this group picked up Mike Gatchalian and brought him to the Paraaque Police Station, she was surprised that Biong halted the investigation when Gatchalian was profusely sweating while being interrogated. After the father of Gatchalian talked to Colonel Pureza, the latter called up and instructed Biong to bring Gatchalian to him (Colonel Pureza) and that was the last thing she remembered regarding this case. The DOJ Panel then weighed these inculpatory evidence against the exculpatory evidence of petitioners. It ruled:30 xxx xxx xxx The voluminous number of exhibits submitted by respondent Webb to support his defense of denial and alibi notwithstanding, the panel, after a careful and thorough evaluation of the records, believes that they cannot outweigh the evidence submitted by the complainant. Alibi cannot prevail over the positive identification made by a prosecution witness. Verily, alibi deserves scant consideration in the face of positive identification especially so where the claim of alibi is supported mainly by friends and relatives (People vs. Apolonia, 235 SCRA 124 [1994]; People vs. Lucas, 181 SCRA 316 and a long line of cases). Similarly, denial is a self-serving negative which cannot be given greater evidentiary weight than the declaration of a credible witness who testified on affirmative matters (People vs. Carizo, 233 SCRA 687 [1994]). Indeed, denial, like alibi, is weak and becomes even more weaker when arrayed against the positive identification by the witness for the prosecution (People vs. Onpaid, 233 SCRA 62 [1994]). Surprisingly, Gatchalian's defense of alibi was not corroborated by Lejano, whom he claimed was with him watching video tapes at the Syyap residence. Other than claiming that he "was not and could not have been at or near the area of the Vizconde residence at the time of the alleged commission of the crime," respondent Lejano proffered no evidence to substantiate his claim of alibi. xxx xxx xxx

On the other hand, respondent Webb seeks to enhance the acceptability of his alibi in the form of documents tending to show that he was thousands of miles away when the incident occurred. We have carefully deliberated and argued on the evidence submitted by respondent Webb in support of his absence from the country since March 9, 1991 to October 26, 1992 and found the same wanting to exonerate him of the offense charged. The material dates in this case are June 29 and 30, 1991. While respondent Webb may have submitted proof tending to show that he was issued a California driver's license on June 14, 1991, there is no showing that he could not have been in the country on the dates above mentioned. Neither do we find merit in the allegation that respondent Webb personally bought a bicycle on June 30, 1991 in California in view of his positive identification by Alfaro and the two (2) househelps of the Webb family who testified that he was here in the country on said dates. Additionally, the issuance of receipt evidencing the purchase of a bicycle in California is no conclusive proof that the name appearing thereon was the actual buyer of the merchandise. Given these conflicting pieces of evidence of the NBI and the petitioners, we hold that the DOJ Panel did not gravely abuse its discretion when it found probable cause against the petitioners. A finding of probable cause needs only to rest on evidence showing that more likely than not a crime has been committed and was committed by the suspects. Probable cause need not be based on clear and convincing evidence of guilt, neither on evidence establishing guilt beyond reasonable doubt and definitely, not on evidence establishing absolute certainty of guilt. As well put in Brinegar v. United States, 31 while probable cause demands more than "bare suspicion," it requires "less than evidence which would justify . . . conviction." A finding of probable cause merely binds over the suspect to stand trial. It is not a pronouncement of guilt. Considering the low quantum and quality of evidence needed to support a finding of probable cause, we also hold that the DOJ Panel did not, gravely abuse its discretion in refusing to call the NBI witnesses for clarificatory questions. The decision to call witnesses for clarificatory questions is addressed to the sound discretion of the investigator and the investigator alone. If the evidence on hand already yields a probable cause, the investigator need not hold a clarificatory hearing. To repeat, probable cause merely implies probability of guilt and should be determined in a summary manner. Preliminary investigation is not a part of trial and it is only in a trial where an accused can demand the full exercise of his rights, such as the right to confront and cross-examine his accusers to establish his innocence. In the case at bar, the DOJ Panel correctly adjudged that enough evidence had been adduced to establish probable cause and clarificatory hearing was unnecessary. II

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

Sec. 3. Requisites for issuing search warrant. A search warrant shall not issue but upon probable cause in connection with one specific offense to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the things to be seized. Sec. 4. Examination of complainant; record. The judge must, before issuing the warrant, personally examine in the form of searching questions and answers, in writing and under oath the complainant and any witnesses he may produce on facts personally known to them and attach to the record their sworn statements together with any affidavits submitted. Sec. 5. Issuance and form of search warrant. If the judge is thereupon satisfied of the facts upon which the application is based, or that there is probable cause to believe that they exist, he must issue the warrant, which must be substantially in the form prescribed by these Rules. We discussed the difference in the Procedure of issuing warrants of arrest and search warrants in Soliven vs. Makasiar, 33 thus: xxx xxx xxx The second issue, raised by Beltran, calls for an interpretation of the constitutional provision on the issuance of warrants of arrest. The pertinent provision reads: Art. III, Sec. 2. The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. The addition of the word "personally" after the word "determined" and the deletion of the grant of authority by the 1973 Constitution to issue warrants to "other responsible officers as may be authorized by law," has apparently convinced petitioner Beltran that the Constitution now requires the judge to personally examine the complainant and his witnesses in his determination of probable cause for the issuance of warrants of arrest. This is not an accurate interpretation.

What the Constitution underscores is the exclusive and personal responsibility of the issuing judge to satisfy himself of the existence of probable cause. In satisfying himself of the existence of probable cause for the issuance of a warrant of arrest, the judge is not required to personally examine the complainant and his witnesses. Following established doctrine and procedure, he shall: (1) personally evaluate the report and the documents submitted by the fiscal regarding the existence of probable cause and, on the basis thereof, issue a warrant; or (2) if on the basis thereof he finds no probable cause, he may disregard the fiscal's report and require the submission of supporting affidavits of witnesses to aid him in arriving at a conclusions as to the existence of probable cause. Sound policy dictates this procedure, otherwise judges would be unduly laden with the preliminary examination and investigation of criminal complaints instead of concentrating on hearing and deciding cases filed before their courts. Clearly then, the Constitution, the Rules of Court, and our case law 34 repudiate the submission of petitioners that respondent judges should have conducted "searching examination of witnesses" before issuing warrants of arrest against them. They also reject petitioners' contention that a judge must first issue an order of arrest before issuing a warrant of arrest. There is no law or rule requiring the issuance of an Order of Arrest prior to a warrant of arrest. In the case at bar, the DOJ Panel submitted to the trial court its 26-page report, the two (2) sworn statements of Alfaro and the sworn statements of Carlos Cristobal and Lolita Birrer 35 as well as the counter-affidavits of the petitioners. Apparently, the painstaking recital and analysis of the parties' evidence made in the DOJ Panel Report satisfied both judges that there is probable cause to issue warrants of arrest against petitioners. Again, we stress that before issuing warrants of arrest, judges merely determinepersonally the probability, not the certainty of guilt of an accused. In doing so, judges do not conduct a de novo hearing to determine the existence of probable cause. They just personally review the initial determination of the prosecutor finding a probable cause to see if it is supported by substantial evidence. The sufficiency of the review process cannot be measured by merely counting minutes and hours. The fact that it took the respondent judges a few hours to review and affirm the probable cause determination of the DOJ Panel does not mean they made no personal evaluation of the evidence attached to the records of the case. 36 Petitioners' reliance on the case of Allado vs. Diokno 37 is misplaced. Our Allado ruling is predicated on the utter failure of the evidence to show the existence of probable cause. Not even the corpus delicti of the crime was established by the evidence of the prosecution in that case. Given the clear insufficiency of the evidence on record, we stressed the necessity for the trial judge to make a further personal examination of the complainant and his witnesses to reach a correct assessment of the existence or non-existence of

probable cause before issuing warrants of arrest against the accused. The case at bar, however, rests on a different factual setting. As priorly discussed, the various types of evidence extant in the records of the case provide substantial basis for a finding of probable cause against the petitioner. The corpus delicti of the crime is a given fact. There is an eyewitness account of the imputed crime given by Alfaro. The alibi defense of petitioner Webb is also disputed by sworn statements of their former maids. It was therefore unnecessary for the respondent judges to take the further step of examining ex parte the complainant and their witnesses with searching questions. III Petitioners also complain about the denial of their constitutional right to due process and violation of their right to an impartial investigation. They decry their alleged hasty and malicious prosecution by the NBI and the DOJ Panel. They also assail the prejudicial publicity that attended their preliminary investigation. We reject these contentions. The records will show that the DOJ Panel did not conduct the preliminary investigation with indecent haste. Petitioners were given fair opportunity to prove lack of probable cause against them. The fairness of this opportunity is well stressed in the Consolidated Comment of the Solicitor General, viz.: Again, there is no merit in this contention. Petitioners were afforded all the opportunities to be heard. Petitioner Webb actively participated in the preliminary investigation by appearing in the initial hearing held on June 30, 1995 and in the second hearing on July 14, 1995; and by filing a "Motion for Production and Examination of Evidence and Documents" on June 27, 1995 (p. 4, Petition), a "Reply to the compliance and Comment/Manifestation to the Motion for Production and Examination of Evidence" on July 5, 1995 (p. 6, Petition), a "Comment and Manifestation" on July 7, 1995 (p. 6, Petition), his "Counter-Affidavit" on July 14, 1995 (pp. 6-7, Petition) and a "Motion to Resolve" on August 1, 1995. Numerous letter-requests were also sent by the petitioner Webb's counsel to the DOJ Panel requesting the latter to furnish him a copy of the reports prepared by the FBI concerning the petitioner's whereabouts during the material period (Annexes "L", "L-1" and "L-2" of the Supplemental Petition dated August 14, 1995). In fact, not satisfied with the decision of the DOJ Panel not to issuesubpoena duces tecum to Atty. Arturo L. Mercader, Jr., petitioner Webb filed a "Petition for Injunction, Certiorari, Prohibition and Mandamus" with the Regional Trial Court, Branch 63 of Makati in order to compel said Atty. Mercader, Jr. to produce the first sworn statement of Alfaro for submission to the DOJ Panel. (p. 4, Petition) The said court dismissed the petition after Mercader produced and submitted to the DOJ Panel the first sworn statement of Alfaro, without ruling on the admissibility and credence of the two (2) conflicting and inconsistent sworn statements of the principal witness, Alfaro. (Attached hereto is a copy of the order of

Judge Ruben A. Mendiola, RTC-Makati, Branch 63 dated July 28, 1995) marked as Annex "F." It must also be pointed out that despite the declaration by the DOJ Panel that the preliminary investigation was to be terminated after the hearing held on July 14, 1995, the panel continued to conduct further proceedings, e.g. comparison of the photo-copies of the submitted documents with the originals on July 17, 1995. (p. 7, Petition) The panel even entertained the "Response" submitted by accused Miguel Rodriguez on July 18, 1995. (p. 17 Resolution) In addition to these, the panel even announced that any party may submit additional evidence before the resolution of the case. (p. 8, Petition) From the time the panel declared the termination of the preliminary investigation on July 14, 1995, twenty-seven (27) days elapsed before the resolution was promulgated, and the information eventually filed in the Regional Trial Court of Paraaque on August 10, 1995. This notwithstanding the directive of Section 3(f) Rule 112 of the Revised Rules of Court that the investigating officer shall resolve the case within ten (10) days from the termination of the preliminary investigation. The DOJ Panel precisely allowed the parties to adduce more evidence in their behalf and for the panel to study the evidence submitted more fully. This directly disputes the allegation of the petitioners that the resolution was done with indecent haste in violation of the rights of the petitioners. During the period of twentyseven (27) days, the petitioners were free to adduce and present additional evidence before the DOJ Panel. Verily, petitioners cannot now assert that they were denied due process during the conduct of the preliminary investigation simply because the DOJ Panel promulgated the adverse resolution and filed the Information in court against them. Petitioners cannot also assail as premature the filing of the Information in court against them for rape with homicide on the ground that they still have the right to appeal the adverse resolution of the DOJ Panel to the Secretary of Justice. The filing of said Information is in accord with Department of Justice Order No. 223, series of 1993, dated June 25, 1993. We quote its pertinent sections, viz.: Sec. 4. Non-Appealable Cases; Exceptions. No appeal may be taken from a resolution of the Chief State Prosecutor/Regional State Prosecutor/Provincial or City Prosecutor finding probable causeexcept upon showing of manifest error or grave abuse of discretion. Notwithstanding the showing of manifest error or grave abuse of discretion, no appeal shall be entertained where the appellant had already been arraigned. If the appellant is arraigned during the pendency of the appeal, said appeal shall be dismissed motu propio by the Secretary of Justice.

An appeal/motion for reinvestigation from a resolution finding probable cause, however, shall not hold the filing of the information in court. Sec. 2. When to appeal. The appeal must be filed within a period of fifteen (15) days from receipt of the questioned resolution by the party or his counsel. The period shall be interrupted only by the filing of a motion for reconsideration within ten (10) days from receipt of the resolution and shall continue to run from the time the resolution denying the motion shall have been received by the movant or his counsel. (Emphasis supplied) Without doubt then, the said DOJ Order No. 223 allows the filing of an Information in court after the consummation of the preliminary investigation even if the accused can still exercise the right to seek a review of the prosecutor's recommendation with the Secretary of Justice. Next, petitioners fault the DOJ Panel for not including Alfaro in the Information considering her alleged conspiratorial participation in the crime of rape with homicide. The non-inclusion of Alfaro is anchored on Republic Act No. 6981, entitled "An Act Providing For A Witness Protection, Security And Benefit Program And For Other Purposes" enacted on April 24, 1991. Alfaro qualified under its Section 10, which provides: xxx xxx xxx Sec. 10. State Witness. Any person who has participated in the commission of a crime and desires to a witness for the State, can apply and, if qualified as determined in this Act and by the Department, shall be admitted into the Program whenever the following circumstances are present: (a) the offense in which his testimony will be used is a grave felony as defined under the R.P.C. or its equivalent under special laws; (b) there is absolute necessity for his testimony; (c) there is no other direct evidence available for the proper prosecution of the offense committed; (d) his testimony can be substantially corroborated on its material points; (e) he does not appear to be most guilty; and (f) he has not at anytime been convicted of any crime involving moral turpitude. An accused discharged from an information or criminal complaint by the court in order that he may be a State Witness pursuant to Sections

9 and 10 of Rule 119 of the Revised Rules of Court may upon his petition be admitted to the Program if he complies with the other requirements of this Act. Nothing in this Act shall prevent the discharge of an accused so that he can be used as a Witness under Rule 119 of the Revised Rules of Court. Upon qualification of Alfaro to the program, Section 12 of the said law mandates her non-inclusion in the criminal Complaint or Information, thus: xxx xxx xxx Sec. 12. Effect of Admission of a State Witness into the Program. The certification of admission into the Program by the Department shall be given full faith and credit by the provincial or city prosecutor who is required NOT TO INCLUDE THE WITNESS IN THE CRIMINAL COMPLAINT OR INFORMATION and if included therein, to petition the court for his discharge in order that he can be utilized as a State Witness. The court shall order the discharge and exclusion of the said accused from the information. Admission into the Program shall entitle such State Witness to immunity from criminal prosecution for the offense or offenses in which his testimony will be given or used and all the rights and benefits provided under Section 8 hereof. The validity of these provisions is challenged by petitioner Webb. It is urged that they constitute ". . . an intrusion into judicial prerogative for it is only the court which has the power under the Rules on Criminal Procedure to discharge an accused as a state witness." The argument is based on Section 9, Rule 119 38which gives the court the prerogative to approve the discharge of an accused to be a state witness. Petitioner's argument lacks appeal for it lies on the faulty assumption that the decision whom to prosecute is a judicial function, the sole prerogative of courts and beyond executive and legislative interference. In truth, the prosecution of crimes appertains to the executive department of government whose principal power and responsibility is to see that our laws are faithfully executed. A necessary component of this power to execute our laws is the right to prosecute their violators. The right to prosecute vests the prosecutor with a wide range of discretion the discretion of whether, what and whom to charge, the exercise of which depends on a smorgasbord of factors which are best appreciated by prosecutors. We thus hold that it is not constitutionally impermissible for Congress to enact R.A. No. 6981 vesting in the Department of Justice the power to determine who can qualify as a witness in the program and who shall be granted immunity from prosecution. 39 Section 9 of Rule 119 does not support the proposition that the power to choose who shall be a state witness is an inherent judicial prerogative. Under this provision, the court, is given the power to discharge a state witness only because it has already acquired jurisdiction over the crime and the accused. The discharge of an accused is part of the exercise of jurisdiction but is not a recognition of an inherent judicial function. Moreover, the Rules of Court have never been interpreted to

be beyond change by legislation designed to improve the administration of our justice system. R.A. No. 6981 is one of the much sought penal reform laws to help government in its uphill fight against crime, one certain cause of which is the reticence of witnesses to testify. The rationale for the law is well put by the Department of Justice, viz.: "Witnesses, for fear of reprisal and economic dislocation, usually refuse to appear and testify in the investigation/prosecution of criminal complaints/cases. Because of such refusal, criminal complaints/cases have been dismissed for insufficiency and/or lack of evidence. For a more effective administration of criminal justice, there was a necessity to pass a law protecting witnesses and granting them certain rights and benefits to ensure their appearance in investigative bodies/courts." 40 Petitioner Webb's challenge to the validity of R.A. No. 6981 cannot therefore succeed. Further, petitioners charge the NBI with violating their right to discovery proceedings during their preliminary investigation by suppressing the April 28, 1995 original copy of the sworn statement of Alfaro and the FBI Report. The argument is novel in this jurisdiction and as it urges an expansive reading of the rights of persons under preliminary investigation it deserves serious consideration. To start with, our Rules on Criminal Procedure do not expressly provide for discovery proceedings during the preliminary investigation stage of a criminal proceeding. 41 Sections 10 and 11 of Rule 117 do provide an accused the right to move for a bill of particulars and for production or inspection of material evidence in possession of the prosecution. 42 But these provisions apply after the filing of the Complaint or Information in court and the rights are accorded to the accused to assist them to make an intelligent plea at arraignment and to prepare for trial. 43 This failure to provide discovery procedure during preliminary investigation does not, however, negate its use by a person under investigation when indispensable to protect his constitutional right to life, liberty and property. Preliminary investigation is not too early a stage to guard against any significant erosion of the constitutional right to due process of a potential accused. As aforediscussed, the object of a preliminary investigation is to determine the probability that the suspect committed a crime. We hold that the finding of a probable cause by itself subjects the suspect's life, liberty and property to real risk of loss or diminution. In the case at bar, the risk to the liberty of petitioners cannot be understated for they are charged with the crime of rape with homicide, a non-bailable offense when the evidence of guilt is strong. Attuned to the times, our Rules have discarded the pure inquisitorial system of preliminary investigation. Instead, Rule 112 installed a quasi-judicial type of preliminary investigation conducted by one whose high duty is to be fair and impartial. 44 As this Court emphasized in Rolito Go vs. Court of Appeals, 45 "the right to have a preliminary investigation conducted before being bound over for trial for a criminal offense, and hence formally at risk of incarceration or some other penalty, is not a mere formal or technical right; it is a substantive right." A preliminary investigation should therefore be scrupulously conducted so that the constitutional right to liberty of a potential

accused can be protected from any material damage. We uphold the legal basis of the right of petitioners to demand from their prosecutor, the NBI, the original copy of the April 28, 1995 sworn statement of Alfaro and the FBI Report during their preliminary investigation considering their exculpatory character, and hence, unquestionable materiality to the issue of their probable guilt. The right is rooted on the constitutional protection of due process which we rule to be operational even during the preliminary investigation of a potential accused. It is also implicit in section (3) (a) of Rule 112 which requires during the preliminary investigation the filing of a sworn complaint, which shall ". . . state the known address of the respondent and be accompanied by affidavits of the complainant and his witnesses as well as other supporting documents . . ." In laying down this rule, the Court is not without enlightened precedents from other jurisdictions. In the 1963 watershed case of Brady v. Maryland 46 the United States Supreme Court held that "suppression of evidence favorable to an accused upon request violates due process where the evidence is material to guilt or punishment, irrespective of the good faith or bad faith of the prosecution." Its progeny is the 1935 case ofMooney v. Holohan 47 which laid down the proposition that a prosecutor's intentional use of perjured testimony to procure conviction violates due process. Thus, evolved jurisprudence firming up the prosecutor's duty to disclose to the defense exculpatory evidence in its possession. 48 The rationale is well put by Justice Brennan in Brady 49 "society wins not only when the guilty are convicted but when criminal trials are fair." Indeed, prosecutors should not treat litigation like a game of poker where surprises can be sprung and where gain by guile is not punished. But given the right of petitioners to compel the NBI to disclose exculpatory evidence in their favor, we are not prepared to rule that the initial nonproduction 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. G.R. No. 81389 February 21, 1989 PEOPLE OF THE PHILIPPINES, petitioner, vs. HON. RENATO C. DACUDAO, Presiding Judge of the Regional Trial Court of Cebu, Branch XIV, and REY CHRISTOPHER PACLIBAR, and NERO DESAMPARADO alias TOTO DESAMPARADO alias WALDAS,respondents. The Solicitor General for petitioner. Bernardito A. Florido for private respondents.

GUTIERREZ, JR., J.: The question presented for resolution in this petition for certiorari and prohibition is whether or not the prosecution was deprived of procedural due process on account of the grant of bail to the accused without any hearing on the motion for bail. The facts have been summarized as follows;

1. On August 11, 1987, an Information for Murder with the qualifying circumstances of treachery and evident premeditation was filed before the Regional Trial Court of Cebu, Branch XIV, presided by respondent Judge Renato C. Dacudao, against accused Rey Christopher Paclibar and Nero Desamparado for the death of Cesarlito Nolasco. The case was docketed as Criminal Case No. CBU-11463. Upon arraignment, accused Rey Christopher Paclibar entered a plea of 'not guilty' to the offense charged. 2. On September 18, 1987, accused Rey Christopher Paclibar filed a motion for bail, furnishing the Provincial Fiscal of Cebu with a copy thereof. 3. On September 29, 1987, and without conducting a hearing in the application for bail, respondent Judge summarily issued the following Order: ORDER Considering the motion for bail and the opposition thereto, and, on the basis of the complaint at bar and the sworn statement of Patrolman Elpidio Desquitado, Tadeo Abello and Romeo Torrizo all of the Integrated National Police, Bantayan (Cebu) Police Station, which constitute the essential evidence (so far) of the prosecution in this case, this Court hereby resolves to grant the motion for bail presented by Atty. Bernardito A. Florida and to this end hereby fixes the bailbond for the accused Rey Christopher Paclibar at P50,000.00. SO ORDERED. 4. From the foregoing Order, private prosecutor Alex R. Monteclar filed a motion for reconsideration alleging that "THE GRANTING OF BAIL TO THE ACCUSED WITHOUT A HEARING IS VIOLATIVE OF PROCEDURAL DUE PROCESS, HENCE. NULL AND VOID and thus praying, as follows: WHEREFORE, in the light of the foregoing, it is respectfully prayed of this Honorable Court to: 1. Reconsider its order dated 29th September l987 granting bail to the accused Rey Christopher Paclibar and set it aside for being null and void; 2. To order the immediate hearing of the Motion to Bail to determine whether the evidence for the prosecution would warrant the denial of bail;

'3. To recommit the accused to jail (CPDRC) immediately until such time the Honorable Court shall have resolved the Motion to Bail.' 5. Acting on the motion for reconsideration and the opposition thereto filed by accused Rey Christopher Paclibar, respondent judge issued on November 20, 1987 the following order: ORDER 'The Court hereby resolves to hold in abeyance its resolution on the Prosecution's motion for reconsideration of the Court's order dated September 29, 1987 granting bail to the accused, pending the presentation by the Prosecution of evidence, which it promised to present, in support of its proposition that the evidence of guilt against the accused in this case is strong, and that therefore the accused should not have been admitted to bail. Unless and until the prosecution adduces the requisite evidence, the Court sees no reason to reconsider its order of September 29, 1987 which was predicated upon the postulate that the Prosecution evidence thus far attached to the records does not make out a very strong case for murder, as this evidence consists simply of the sworn statement of Pat. Desquitado, Tadeo Abello and Romeo Torrizo of the INP, Bantayan, Cebu, none of whom, by their own account, witnesses (sic) the slaying of the deceased Lito Nolasco by the accused Rey Christopher Paclibar. 'The Court hereby gives the prosecution five (5) days from receipt of this order within which to submit a pleading or motion for reconsideration of the ruling of the Court. 'In the meantime reset the continuation of the hearing of this case on December 16, 1987 at 2:30 P.M. Fiscal Napoleon Alburo, Attys. Alex Monteclar and Bernardito Florida as well as Atty. Amado Olis are all notified of this order in open court. The accused is similarly notified. Notify the bondsman of the accused. 'SO ORDERED.' (pp. 95-98, Rollo) The petitioner now advances the following issue: that "Respondent Judge acted without jurisdiction and with grave abuse of discretion in refusing to recommit the accused Rey Christopher Paclibar to jail during the pendency of the hearing of the motion to bail." (p. 6, Petition)

Before resolving this issue, we must stress that a private prosecutor in a criminal case has no authority to act for the People of the Philippines before this Court. It is the Government's counsel, the Solicitor General who appears in criminal cases or their incidents before the Supreme Court. At the very least, the Provincial Fiscal himself, with the conformity of the Solicitor General, should have raised the issue before us, instead of the private prosecutor with the conformity of one of the Assistant Provincial Fiscals of Cebu. In the interest of a speedy determination of the case, however, and considering the stand taken by the Office of the Solicitor General whom we asked to comment, we have decided to resolve this petition on its merits, with a warning to the private prosecutor and the Assistant Provincial Fiscal to follow the correct procedure in the future. The respondent court acted irregularly in granting bail in a murder case without any hearing on the motion asking for it, without bothering to ask the prosecution for its conformity or comment, and, as it turned out later, over its strong objections. The court granted bail on the sole basis of the complaint and the affidavits of three policemen, not one of whom apparently witnessed the killing. Whatever the court possessed at the time it issued the questioned ruling was intended only for prima facie determining whether or not there is sufficient ground to engender a wellfounded belief that the crime was committed and pinpointing the persons who probably committed it. Whether or not the evidence of guilt is strong for each individual accused still has to be established unless the prosecution submits the issue on whatever it has already presented. To appreciate the strength or weakness of the evidence of guilt, the prosecution must be consulted or heard. It is equally entitled as the accused to due process. Thus, this Court, in People v. San Diego (26 SCRA 522 [1968]), held: The question presented before us is, whether the prosecution was deprived of procedural due process. The answer is in the affirmative. We are of the considered opinion that whether the motion for bail of a defendant who is in custody for a capital offense be resolved in a summary proceeding or in the course of a regular trial the prosecution must be given an opportunity to present, within a reasonable time, all the evidence that it may desire to introduce before the court should resolve the motion for bail. If, as in the criminal case involved in the instant special civil action, the prosecution should be denied such an opportunity, there would be a violation of procedural due process, and the order of the court granting bail should be considered void on that ground. The orders complained of dated October 7, 9 and 12, 1968, having been issued in violation of procedural due process, must be considered null and void. The court's discretion to grant bail in capital offenses must be exercised in the light of a summary of the evidence presented by the prosecution; otherwise, it would be uncontrolled and might be capricious or whimsical. Hence, the court's order granting or refusing bail must contain a summary of the evidence for the prosecution followed by its conclusion whether of not the evidence of guilt is strong. The orders of October 7, 9 and 12, 1968, granting bail to the

five defendants are defective in form and substance because they do not contain a summary of the evidence presented by the prosecution. They only contain the court's conclusion that the evidence of guilt is not strong. Being thus defective in form and substance, the orders complained of cannot, also on this ground, be allowed to stand. (at p. 524; Emphasis supplied) Certain guidelines in the fixing of a bailbond call for the presentation of evidence and reasonable opportunity for the prosecution to refute it. Among them are the nature and circumstances of the crime, character and reputation of the accused, the weight of the evidence against him, the probability of the accused appearing at the trial, whether or not the accused is a fugitive from justice, and whether or not the accused is under bond in other cases. (Section 6, Rule 144, Rules of Court) It is highly doubtful if the trial court can appreciate these guidelines in an ex-parte determination where the Fiscal is neither present nor heard. The effort of the court to remedy the situation by conducting the required hearing after ordering the release of the accused may be a face-saving device for the Judge but it cannot serve the purpose of validating the void order granting bail and stamping an imprimatur of approval on a clearly irregular procedure. The defense counsel insists that the accused should be entitled to bail considering the abolition of the death penalty in the 1986 Constitution. He advances the argument that due to the abolition of the death penalty, murder is no longer a capital offense being no longer punishable with death. This is erroneous because although the Constitution states that the death penalty may not be imposed unless a law orders its imposition for heinous crimes (Constitution, Art. III, Section 19 [1], it does not follow that all persons accused of any crime whatsoever now have an absolute right to bail. In Art. 111, Sec. 13 of the Constitution, "capital offenses" is replaced by the phrase "offenses punishable by reclusion perpetua." Bail is not a matter of right as regards persons charged with offenses punishable by reclusion perpetua when the evidence of guilt is strong. Thus, Sec. 5, Art. 114 of the Rules of Criminal Procedure requires a hearing before resolving a motion for bail by persons charged with offenses punishable by reclusion perpetua where the prosecution may discharge its burden of showing that the evidence of guilt is strong. The case at bar, which is murder, is punishable by reclusion perpetua. In its comment, the defense interposes an objection to the petition on the ground that it is premature and therefore, should be dismissed. It contends that certiorari will not lie unless the inferior court has, through a motion for reconsideration, the opportunity to correct the errors imputed to it. The general rule is that a motion for reconsideration should first be availed of before a petition for certiorari and prohibition is filed. (Cebu Institute of Technology [CIT] v. Ople, 156 SCRA 529 [1987]) However, this rule does not apply when special circumstances warrant immediate or more direct action. A motion for reconsideration may be dispensed with in cases like this where execution has been ordered and the need for relief is extremely urgent (Phil. British Assurance Co., Inc. v. Intermediate Appellate Court, 150 SCRA 520 [1989]). In the case at bar, the petitioner is left with no plain, speedy, and adequate remedy in the ordinary course of law considering

that the respondent court insists on the continuation of the hearing of the criminal case even while the accused is free to roam around. Moreover, there is an allegation that the accused is harassing, threatening and coercing witnesses who are now afraid to testify. (pp. 87-88, Rollo) Finally, the defense contends that the Judge did not commit any error because actually the complaint in the Municipal Circuit Trial Court is for homicide only (Annex A. p. 60, Rollo), and the recommended Information was also for homicide (Annex B, p. 61, Rollo). We note, however, that when the same was filed with the Regional Trial Court, it was already an Information for murder. The amendment or changing of an information prior to the plea of the accused is allowed there being no prejudice to him. Thus, in the case of Gaspar v. Sandiganbayan (144 SCRA 415 [1986]), this Court held that, "no actual double jeopardy exists where the petitioner had not yet pleaded guilty to the offense." WHEREFORE, the petition is hereby GRANTED. The order granting bail is SET ASIDE and the accused is ordered recommitted to jail pending the hearing on the bail application. SO ORDERED.

G.R. No. 99287 June 23, 1992 PEOPLE OF THE PHILIPPINES, petitioner, vs. HON. MARTIN S. VILLARAMA, JR., AND JAIME MANUEL, respondents.

MEDIALDEA, J.: This petition for certiorari seeks to reverse the decision and the order of the Regional Trial Court, National Capital Region at Pasig, Metro Manila dated February 25 and March 13, 1991, respectively in Criminal Case No. 1345-D entitled "People of the Philippines v. Jaime Manuel y Ohide" for violation of Section 16, Article 111, RA 6425, as amended. Briefly, the antecedent facts of the case are as follows: On August 24, 1990, Jaime Manuel y Ohide was charged with violation of Section 16, Republic Act No. 6425, as amended. The penalty prescribed in the said section is imprisonment ranging from six years and one day to twelve years and a fine ranging from six thousand to twelve thousand pesos. The information against him reads:

That on or about the 21st day of August, 1990, in the Municipality of San Juan, Metro Manila, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, without the corresponding license or prescription did then and there willfully, unlawfully and feloniously have in his possession, custody and control 0.08 grams of Methamphetamin Hydrocloride (Shabu) wrapped with an aluminum foil, which is a regulated drug. CONTRARY TO LAW. (p. 15, Rollo) During the arraignment, the accused entered a plea of not guilty. Thereafter, trial ensued. On November 21, 1990, the prosecution rested its case. On January 9, 1991, counsel for private respondent verbally manifested in open court that private respondent was willing to change his former plea of "not guilty" to that of "guilty" to the lesser offense of violation of Section 17, R.A. No. 6425, as amended. The said section provides a penalty ofimprisonment ranging from six months and one day to four years and a fine ranging from six hundred to four thousand pesos shall be imposed upon any pharmacist, physician, dentist, veterinarian, manufacturer, wholesaler who violates or fails to keep the records required under Section 25 of the Act; if the violation or failure involves a regulated drug. That same day, the respondent Judge issued an order (Annex "B," p. 17, Rollo) directing private respondent to secure the consent of the prosecutor to the change of plea, and set the promulgation of decision on January 30, 1991. On January 30, 1991, respondent Judge postponed the promulgation of the decision to February 18, 1991 to give private respondent another opportunity to secure the consent of the prosecutor. Also, on the said date, the private respondent filed his Request to Plead Guilty to a Lesser Offense. On February 18, 1991, respondent Judge issued another order (Annex "D," p. 19, Rollo) postponing the promulgation of decision to February 25, 1991 to give private respondent further opportunity to secure the consent of the prosecutor. On February 20, 1991, the prosecutor filed his Opposition to the Request to Plead Guilty to a Lesser Offense (annex "E," p. 20, Rollo) on the grounds that: (1) the prosecution already rested its case on November 21, 1990; (2) the possibility of conviction of private respondent of the crime originally charged was high because of the strong evidence of the prosecution; and (3) the valuable time which the court and the prosecutor had expended would be put to waste. On February 21, 1991, private respondent filed his Reply to Opposition with Leave of Court to Plead Guilty to a Lesser Offense (annex F, p. 21, Rollo), alleging therein, among other matters, that the Rules on Criminal Procedure does not fix a specific period within which an accused is allowed to plead guilty to a lesser offense. Subsequently, on February 25, 1991, respondent Judge rendered a decision granting the accused's motion, to wit: It may well be appropriate at this time to state that the accused is not availing of the "voluntary plea of guilt" as a mitigating circumstance envisioned under Article 13, paragraph 7 of the Revised Penal Code. The accused simply wants to avail of Section 2, Rule 116 of the Rules. As pointed out by Atty. Fernando Fernandez of the PAO, there is nothing in the said provision which requires that the same be availed of prior to the presentation of the evidence for the prosecution. It is conceded though, as pointed out by the prosecution, that such is a

waste of time on the part of the Office of the Provincial Prosecutor and of the Court, nonetheless, this Court, having in mind Section 2 of Rule 1 which provides that the rules shall be liberally construed in order to promote their object and to assist the parties in obtaining just, speedy and inexpensive determination of every action and proceeding and also for humanitarian considerations, hereby APPROVES and GRANTS the Motion at bar. Moreover, such an admission of guilt by the accused indicates his submission to the law and a moral disposition on his part to reform. (Vide: People vs. Coronel, G.R. No. L-19091, June 30, 1966) Let it be made of record however that the Court is not putting a premium on the change of heart of the accused in mid-stream. WHEREFORE, finding the accused JAIME MANUEL Y CHIDE @ Manny guilty beyond reasonable-doubt of the crime of violation of Section 17, Article III, Republic Act No. 6425, as amended, he is hereby sentenced to a straight prison term of two (2) years and one (1) day of prision correccional, to pay a fine of Two Thousand Pesos (P2,000.00) with subsidiary imprisonment in case of insolvency and to pay the costs. In the service of his sentence, the accused shall be credited in full with the period of his preventive imprisonment. Pursuant to Section 20, Article IV of Republic Act No. 6425, as amended, let the 0.08 grams of methamphetamine hydrochloride (shabu) subject matter of this case be confiscated and forfeited in favor of the Government and be turned over to the Dangerous Drugs Board Custodian, NBI, to be disposed of according to law. SO ORDERED. (Rollo, pp. 24-25) Forthwith, the prosecutor filed a Motion for Reconsideration of the aforestated decision but the same was denied in the order of March 13, 1991, which states: It is the considered view of this Court that Section 2, Rule 116 of the Rules should not be interpreted to the letter in "victimless crimes" such as this case, possession of regulated drugs, which is more of a "social disease" case so to speak and in the light of (the) provision itself that "with the consent of the offended party and the fiscal." Is the fiscal the offended party? Moreover as the records show, the Office of the Provincial Fiscal has not been very consistent on this "lesser offense plea" thing. It would perhaps be in consonance with justice that a guideline be laid down by the said Office, if only to apprise the public, the Court and the accused on when said consent is to be given by the fiscal as a matter of course and when it will be withheld. For to leave the same undefined is in the

mind of this Court, not conducive to a "just, speedy and inexpensive determination of every action and proceeding. SO ORDERED. (Rollo, pp. 41-42) Hence, this petition raising the following issues: I. WHETHER OR NOT RESPONDENT JUDGE ERRED IN GRANTING PRIVATE RESPONDENT'S REQUEST TO PLEAD GUILTY TO A LESSER OFFENSE BECAUSE THE REQUEST WAS FILED OUT OF TIME AND THE CONSENT THERETO OF THE PROSECUTOR AND THE OFFENDED PARTY WAS NOT OBTAINED. II. WHETHER OR NOT RESPONDENT JUDGE ERRED IN CONVICTING PRIVATE RESPONDENT OF THE LESSER OFFENSE OF VIOLATION OF SECTION 17, REPUBLIC ACT NO. 6425, AS AMENDED, INSTEAD OF THE OFFENSE ORIGINALLY CHARGED OF VIOLATION OF SECTION 16 OF THE SAME LAW, IN VIEW OF THE ABSENCE OF A VALID CHANGE OF PLEA. (Rollo, pp. 74-75) In the resolution of January 20, 1992, We issued a temporary restraining order to enjoin the respondent Judge from enforcing the questioned judgment in the aforesaid criminal case (Rollo, p. 86). The petition is meritorious. Plea bargaining in criminal cases, is a process whereby the accused and the prosecution work out a mutually satisfactory disposition of the case subject to court approval (see Black Law Dictionary, 5th Ed., 1979, p. 1037). It usually involves the defendant's pleading guilty to a lesser offense or to only one or some of the counts of a multi-count indictment in return for a lighter sentence than that for the graver charge (ibid). Ordinarily, plea-bargaining is made during the pre-trial stage of the criminal proceedings. However, the law still permits the accused sufficient opportunity to change his plea thereafter. Thus, Rule 116 of the Rules of Court, Section 2 thereof, provides: Sec. 2. Plea of guilty to a lesser offense. The accused, with the consent of the offended party and the fiscal, may be allowed by the trial court to plead guilty to a lesser offense, regardless of whether or not it is necessarily included in the crime charged, or is cognizable by a court of lesser jurisdiction than the trial court. No amendment of the complaint or information is necessary. A conviction under this plea, shall be equivalent to a conviction of the offense charged for purposes of double jeopardy. However, the acceptance of an offer to plead guilty to a lesser offense under the aforequoted rule is not demandable by the accused as a matter of right but is a

matter that is addressed entirely to the sound discretion of the trial court (Manuel v. Velasco, et al., G.R. No. 94732, February 26, 1991, En Banc Resolution). In the case at bar, the private respondent (accused) moved to plead guilty to a lesser offense after the prosecution had already rested its case. In such situation, jurisprudence has provided the trial court and the Office of the Prosecutor with yardstick within which their discretion may be properly exercised. Thus, in People v. Kayanan (L-39355, May 31, 1978, 83 SCRA 437, 450), We held that the rules allow such a plea only when the prosecution does not have sufficient evidence to establish guilt of the crime charged. In his concurring opinion inPeople v. Parohinog (G.R. No. L-47462, February 28, 1980, 96 SCRA 373, 377), then Justice Antonio Barredo explained clearly and tersely the rationale of the law: . . . (A)fter the prosecution had already rested, the only basis on which the fiscal and the court could rightfully act in allowing the appellant to charge his former plea of not guilty to murder to guilty to the lesser crime of homicide could be nothing more nothing less than the evidence already in the record. The reason for this being that Section 4 of Rule 118 (now Section 2, Rule 116) under which a plea for a lesser offense is allowed was not and could not have been intended as a procedure for compromise, much less bargaining. As evident from the foregoing, the trial court need not wait for a guideline from the Office of the Prosecutor before it could act on the accused's motion to change plea. As soon as the fiscal has submitted his comment whether for or against the said motion, it behooves the trial court to assiduously study the prosecution's evidence as well as all the circumstances upon which the accused made his change of plea to the end that the interests of justice and of the public will be served. A reading of the disputed rulings in this case failed to disclose the strength or weakness of the prosecution's evidence. Apparently, the judgment under review dwelt solely on only one of the three objections (i.e. waste of valuable time already spent by the court and prosecution) interposed by the Fiscal which was the least persuasive. It must be recalled that the other two grounds of objection were that the prosecution had already rested its case and that the possibility of conviction of the private respondent of the crime originally charged was high because of the strong evidence of the prosecution. Absent any finding on the weight of the evidence in hand, the respondent judge's acceptance of the private respondent's change of plea is improper and irregular. The counsel for the private respondent argues that only the consent of the fiscal is needed in crimes involving, violation of RA 6425 as amended because there is no offended party to speak Of and that even the latter's consent is not an absolute requirement before the trial court could allow the accused to change his plea. We do not agree. The provision of Section 2, Rule 116 is clear. The consent of both the Fiscal and the offended party is a condition precedent to a valid plea of guilty to a lesser offense (see Manuel v. Velasco, et al., supra, p. 6). The reason for this is obvious. The Fiscal has full control of the prosecution of criminal actions (Cinco, et al. v. Sandiganbayan, et al., G.R. Nos. 92362-67, October 15, 1991). Consequently, it is his duty to always prosecute the proper offense, not any lesser

or graver one, when the evidence in his hands can only sustain the former (seePeople v. Parohinog, supra, concurring opinion of then Justice Barredo, p. 377; also Vda. de Bagatua, et al. v. Revilla, et al., 104 Phil. 393, 395-396). It would not also be correct to state that there is no offended party in crimes under RA 6425 as amended. While the acts constituting the crimes are not wrong in themselves, they are made so by law because they infringe upon the rights of others. The threat posed by drugs against human dignity and the integrity of society is malevolent and incessant (People v. Ale, G.R. No. 70998, October 14, 1986, 145 SCRA 50, 58). Such pernicious effect is felt not only by the addicts themselves but also by their families. As a result, society's survival is endangered because its basic unit, the family, is the ultimate victim of the drug menace. The state is, therefore, the offended party in this case. As guardian of the rights of the people, the government files the criminal action in the name of the People of the Philippines. The Fiscal who represents the government is duty bound to defend the public interests, threatened by crime, to the point that it is as though he were the person directly injured by the offense (see United States v. Samio, 3 Phil. 691, 696). Viewed in this light, the consent of the offended party, i.e. the state, will have to be secured from the Fiscal who acts in behalf of the government. Lastly, the counsel for the private respondent maintains that the private respondent's change of plea and his conviction to the lesser offense of violation of Section 17, RA No. 6425 as amended is no longer open to review otherwise his constitutional right against double jeopardy will be violated. Such supposition has no basis. The right against double jeopardy given to the accused in Section 2, Rule 116 of the Rules of Court applies in cases where both the fiscal and the offended party consent to the private respondent's change of plea. Since this is not the situation here, the private respondent cannot claim this privilege. Instead, the more pertinent and applicable provision is that found in Section 7, Rule 117 which states: Sec. 7. Former conviction or acquittal; double jeopardy. xxx xxx xxx However, the conviction of the accused shall not be a bar to another prosecution for an offense which necessarily includes the offense charged in the former complaint or information under any of the following instances: (a) . . . ; (b) . . . ; (c) the plea of guilty to the lesser offense was made without the consent of the Fiscal and of the offended party; xxx xxx xxx

Under this rule, the private respondent could still be prosecuted under the original charge of violation of Section 16 of RA 6425 as amended because of the lack of consent of the Fiscal who also represents the offended party,i.e., the state. More importantly, the trial court's approval of his change of plea was irregular and improper. ACCORDINGLY, the petition is hereby GRANTED. The judgment and order of the Regional Trial Court, National Capital Region at Pasig, Branch 156 dated February 25 and March 13, 1991, respectively in Criminal Case No. 1345-D (People v. Manuel y Ohide) are REVERSED and SET ASIDE. The said criminal case is hereby remanded to the trial court for continuation of trial on the original charge of violation of Section 16 of Republic Act No. 6425 as amended. The temporary restraining order issued in this case is made permanent. No costs. SO ORDERED. G.R. Nos. 131799-801 February 23, 2004

THE PEOPLE OF THE PHILIPPINES, appellee vs. FELICIANO ULIT y TAMPOY, appellant. DECISION CALLEJO, SR., J.: Before the Court on automatic review is the Decision1 dated December 17, 1997 of the Regional Trial Court of Makati City, Branch 62, in Criminal Cases Nos. 97-385 to 97-388 finding appellant Feliciano Ulit y Tampoy guilty beyond reasonable doubt of two counts of qualified rape.2 In the same decision, the appellant was convicted of two counts of acts of lasciviousness. For each count of rape, the trial court sentenced him to suffer the supreme penalty of death, while for each count of acts of lasciviousness, the appellant was sentenced to suffer imprisonment "from eight (8) years, eight (8) months and one (1) day of prision mayor in its medium period, as minimum, to fifteen (15) years, six (6) months and twenty (20) days of reclusion temporal in its medium period, as maximum." The appellant was, likewise, ordered to indemnify the victim Lucelle Serrano, the amount of P50,000 for each count of rape and P20,000 for each count of acts of lasciviousness. The Indictments Upon the sworn complaint of the victim Lucelle Serrano, four Informations were filed against her uncle, the appellant. The docket number and the accusatory portion of each Information reads: Criminal Case No. 97-385 That sometime in the month of November 1996, in the City of Makati, Metro Manila, Philippines, a place within the jurisdiction of this Honorable Court, the above-named

accused, who is the uncle of the complainant LUCELLE SERRANO y ULIT, hence, her relative by consanguinity within the third civil degree, while armed with a knife, by means of force, violence and intimidation, did then and there willfully, unlawfully and feloniously have carnal knowledge of the complainant LUCELLE SERRANO y ULIT, an eleven (11) year old girl, without her consent and against her will, to her damage and prejudice. CONTRARY TO LAW.3 Criminal Case No. 97-386 That sometime in the month of February 1997, in the City of Makati, Metro Manila, Philippines, a place within the jurisdiction of this Honorable Court, the above-named accused, who is the uncle of complainant LUCELLE SERRANO y ULIT, hence her relative by consanguinity within the third civil degree, while armed with a knife, by means of force, violence and intimidation, did then and there willfully, unlawfully and feloniously have carnal knowledge of the complainant LUCELLE SERRANO y ULIT, an eleven (11) year old girl, without her consent and against her will, to her damage and prejudice. CONTRARY TO LAW.4 Criminal Case No. 97-387 That sometime in the month of December 1996, in the City of Makati, Metro Manila, Philippines, a place within the jurisdiction of this Honorable Court, the above-named accused, with lewd design by means of force, violence and intimidation, did then and there willfully, unlawfully and feloniously commit acts of lasciviousness upon complainant LUCELLE SERRANO y ULIT, an eleven (11) year old girl, by then and there kissing her and touching her sexual organ, without her consent and against her will, to her damage and prejudice. CONTRARY TO LAW.5 Criminal Case No. 97-388 That on or about the 2nd day of March 1997, in the City of Makati, Metro Manila, Philippines, a place within the jurisdiction of this Honorable Court, the above-named accused, with lewd design by means of force, violence and intimidation, did then and there willfully, unlawfully and feloniously commit acts of lasciviousness upon complainant LUCELLE SERRANO y ULIT, an eleven (11) year old girl, by then and there dragging her inside a bathroom and repeatedly kissing her on her checks [sic], without her consent and against her will, to her damage and prejudice. CONTRARY TO LAW.6 The appellant, assisted by counsel, pleaded not guilty during the arraignment. Joint trial of all the cases ensued.

In the meantime, Lucelle was undergoing psychiatric treatment at the Philippine General Hospital. On May 5, 1997, the prosecution presented her as its first witness. On direct examination, Lucelle testified that she was born on February 19, 1986.7 In November 1996, her uncle, the appellant, did something to her. When the prosecution asked her what happened, Lucelle did not answer. When asked if she wanted to continue with her testimony, again, she did not respond. The trial was reset to June 2 and 9, 1997. When trial resumed on June 9, 1997, Lucelle was questioned by the prosecution on direct examination, but still, she gave no answer. She cried profusely in open court. When asked by the court if she wanted to proceed with the trial, she remained silent. The trial was reset anew to July 9 and 14, 1997. In the meantime, the trial court ordered that Lucelle be subjected to physical and psychological examinations at the National Center for Mental Health (NCMH). Dr. Rochelflume Samson examined Lucelle and submitted her Report dated August 29, 1997 with the following remarks and recommendation: Based on clinical history, mental status examination and psychological evaluation, this patient is suffering from Post-Traumatic Stress Disorder. This illness is characterized by intense fear and feeling of helplessness whenever she recalls her traumatic experience of being raped. It causes her intense psychological distress whenever asked to talk about the rape scene or incident. Thus, she avoids recollections of the trauma. At present, she is still manifesting symptoms described above. She would be having difficulties testifying in court because of this. She requires psychiatric treatment at the Out-Patient Section.8 During the trial on July 14, 1997, Lucelle refused to take the witness stand. The trial was reset to July 21, 1997. During the hearing on October 20, 1997, the prosecution presented Lucelle anew to continue with her testimony on direct examination. She declared that the appellant raped her in November 1996 and many other times thereafter in her residence at No. 7104 San Maximo Street, Makati City. Instead of asking questions to elicit the facts and circumstances before and during the commission of the crimes, the prosecutor asked Lucelle to identify her signature in her sworn statement9 and to affirm the truth of its contents. She did so. The public prosecutor then marked the sworn statement in evidence as Exhibit "H," and then manifested to the court that he had no more questions for the witness on direct examination. On clarificatory questions by the court, Lucelle testified that she was born on February 19, 1986. The appellant mounted her, removed her pants, poked a knife at her and threatened her.10 On cross-examination, Lucelle testified that the appellant was her mothers older brother. In November 1996, she was not enrolled in any school. Her father was working at a construction firm, the appellant was employed at the Department of

Environment and Sanitation in Makati City, while her grandmother, who lived with her, worked as a maid in Bel Air Subdivison. Her mother worked for one of her fathers cousins. On re-direct examination, the prosecution elicited from Lucelle that the appellant raped her in November 1996 at 11:00 p.m. inside the room of her aunt Marina in her grandmothers house at No. 7104 San Maximo Street, Olympia, Makati City, and that her aunt, Marina, and her Ate Sharon were inside the room. When asked where her aunt and Ate Sharon were when she was being raped in her aunts room, Lucelle did not respond. When asked why she did not respond to the questions propounded to her during the previous hearings and why she had been crying in open court, Lucelle replied that she was afraid of her uncle, the appellant. In her sworn statement,11 Lucelle alleged that sometime in November 1996, she was sleeping in a room in the house. It was about 6 oclock in the evening. She was awakened when she felt someone kissing her on the cheek. When she opened her eyes, she saw her uncle, the appellant, armed with a bladed weapon (balisong). He poked the weapon on the left side of her neck. He warned her that if she told her parents, he would kill her. He removed her panties, undressed himself and mounted her. He then inserted his penis into her vagina. She felt pain in her private part and cried. The appellant, thereafter, left the room. Also during the month of November 1996, the appellant continued kissing her whenever her parents were out of the house. In December 1996, Lucelle was in the room when the appellant entered and kissed her and mashed her private parts. Sometime in February 1997, the appellant again abused her (sinalbahe) while she was in the same room. It was about 11 oclock in the evening. He again warned her not to divulge to her parents what he did to her. At 9:00 p.m. on March 2, 1997, Lucelle urinated in the bathroom and when she was about to go out, the appellant entered, pushed her inside and kissed her on her cheeks several times. Celso Serrano, Lucelles father, testified that sometime in November 1996, at dawn, he was in bed and noticed that the appellant was in the bedroom of his cousin-inlaw. Sometime later, he went to the bathroom. He then heard his wife ask the appellant where he had come from and the latter replied that he just came from the roof of the house. On another occasion, one early Sunday morning, he noticed blood stains on Lucelles short pants. When she declared that she had her monthly period, he gave her P5.00 with which to buy sanitary napkins. Lucelle refused to accept the money. He suggested that she wash herself but she just nodded her head. When he asked her why she refused to accept the money, Lucelle replied that she was afraid to tell him because she might be killed. Lourdes Serrano testified that she was Lucelles mother. Lucelle was born on February 19, 1986.12 She and her husband Celso Serrano and their daughter Lucelle resided with her mother, Guadalupe Ulit, at No. 7104 San Maximo Street, Olympia, Makati City. Her sister Marina and the appellant, her brother, also resided in the same house. The family slept together in the evenings in the sala of the house while Marina slept in her bedroom. At times, Marina allowed her niece Lucelle to sleep in her bedroom. At 11:00 p.m. on February 19, 1997, Lourdes noticed that Lucelle was not at her side. The appellant, who usually also slept in the sala, was not there either. Lourdes went to Marinas bedroom and saw Lucelle in bed (papag), covered

with a blanket. Beside her was the appellant who was wearing a pair of short pants and undershirt. When the appellant saw Lourdes, he slid down from the bed, went under the papag, and furtively left the room. When Lourdes removed the blanket, she saw Lucelle lying sideways with her knees up to her chin (nakabaluktot). Lucelle was trembling with fear. When Lourdes asked Lucelle what happened, she did not respond. Lourdes left the room and went back to the sala. She wanted to talk to the appellant but decided against it when she saw him seated in the sala, playing with his balisong. Lourdes further testified that at 9:00 p.m. on March 2, 1997, she and her husband were having dinner when she noticed that Lucelle was nowhere to be found. She looked for her daughter in the house, but failed to find her. She then asked her cousin Nita if she had seen Lucelle. Nita replied in the negative. When Lourdes asked Nita if Lucelle was inside the bathroom, Nita responded that the appellant was using it. Momentarily, Lourdes saw the appellant emerge from the bathroom. He was in his short pants and his shirt was on his shoulder. He was perspiring profusely. Lourdes was flabbergasted when she saw Lucelle come out of the bathroom after the appellant. Lucelle was crying and looked pale. When Lourdes asked Lucelle why she was crying, she told her mother that she had just urinated. The appellant later told her sister Lourdes that he did not do anything to Lucelle. Believing that the appellant had been abusing their daughter, Celso and Lourdes brought Lucelle on March 5, 1997, to Barangay Chairman Romeo Medina. On their way, Lucelle adamantly refused to tell her parents what the appellant did to her. However, when they reached the barangay headquarters, Lucelle told the barangay chairman that the appellant sexually abused her. Thereafter, Lourdes filed a complaint with the barangay chairman against the appellant for sexually molesting Lucelle. Barangay Tanod Fernando David testified that on March 6, 1997, the barangay chairman ordered him and Barangay Tanod Antonio Echavez to invite and bring the appellant to the barangay hall. The barangay chairman asked the appellant if he raped Lucelle and the latter replied that he did. A Sinumpaang Salaysay was prepared in the Office of the Barangay Chairman in which the appellant admitted that he raped Lucelle in February 1997, and on March 2, 1997, despite her resistance, and that he threatened to kill her and her family if she divulged the incidents to her parents.13 The appellant signed his statement in the presence of the barangay chairman and the barangay tanods. From the barangay headquarters, the appellant was brought to the Makati City Police Headquarters where Celso, Lourdes and Lucelle filed a complaint against him for rape and acts of laciviousness. SPO4 Lilia Hogar of the Womens Desk Unit took the sworn statements of Lourdes and Lucelle.14 She conducted a custodial investigation of the appellant who was without counsel during which the latter admitted having raped the victim. SPO4 Hogar also prepared a report on her investigation of the victims complaint.15 On July 28, 1997, Dr. Armie M. Soreta-Umil, NBI Medico-Legal Officer, testified that on March 12, 1997, she conducted genital and vaginal examinations on Lucelle and

submitted Living Case Report No. MG-97-355 which contained the following findings: GENERAL PHYSICAL EXAMINATION: Height: 141 cm. Weight: 78 lbs. Normally developed, fairly nourished, conscious, coherent, cooperative, ambulatory subject. Breasts, developing, conical, firm. Areolae, light-brown, 2.6 cms. in diameter. Nipples, light-brown, protruding, 0.8 cm. in diameter. No extragenital physical injuries noted. GENERAL EXAMINATION: Pubic hair, fully grown, moderate. Labia majora, gaping. Labia minora, coaptated. Fourchette, lax. Vestibular mucosa, pinkish. Hymen, tall, thick, intact, distensible. Hymenal orifice, admits a tube 2.5 cms. in diameter. Vaginal walls, lax. Rugosities, shallow. CONCLUSIONS 1.) No evident sign of extragenital physical injuries noted on the body of the subject at the time of examination. 2.) Hymen, intact but distensible, and its orifice wide (2.5 cms. in diameter) as to allow complete penetration by an average-sized adult Filipino male organ in full erection without producing any genital injury.16 When the prosecution offered in evidence the appellants Sinumpaang Salaysay before the barangay chairman17as part of the testimony of Barangay Tanod Fernando David, the appellant objected to its admission on the ground that the appellant was not assisted by counsel and that, he was forced and coerced into signing the same. Nevertheless, the trial court admitted the statement as part of Davids testimony. The appellants counsel, likewise, objected to the admissibility of Lucelles sworn statement on the ground that she was incompetent to give the same because of her mental illness. The trial court admitted the sworn statement of Lucelle in evidence as part of her testimony. After the prosecution had rested its case, the trial court reset the hearing to November 5, 1997 for the appellant to adduce his evidence. When the case was called for trial on that date, his counsel manifested to the court that the appellant was changing his plea in Criminal Cases Nos. 97-385 and 97-387 from "not guilty" to "guilty." He also manifested that he would no longer adduce any evidence in his defense in Criminal Cases Nos. 97-386 and 97-388 because the prosecution failed to prove his guilt beyond reasonable doubt for the crimes charged therein. The trial court suspended the proceedings and gave the appellant forty-five minutes to

confer with his counsel. When trial resumed, the appellant reiterated his earlier manifestation. When told by the court that he could be sentenced to death for the rape charges, the appellant stood pat on his decision to plead guilty in Criminal Cases Nos. 97-385 and 97-387, and to no longer present any evidence in his defense in the other two cases. The appellant was re-arraigned in Criminal Cases Nos. 97-385 and 97-387 with the assistance of the same counsel and entered his plea of guilty to the charges. On December 15, 1997, the trial court rendered judgment convicting the appellant of all the crimes charged. The decretal portion of the decision reads: WHEREFORE, premises considered, judgment is hereby rendered as follows: 1. In Criminal Case Nos. 97-385 and 97-386, for rape, the prosecution has proven beyond reasonable doubt the guilt of the accused, FELICIANO ULIT Y TAMPOY, as principal in the two counts of statutory rape defined and penalized under Article 335 of the Revised Penal Code, as amended. He is hereby declare[d] CONVICTED in each of the cases. Accordingly he is sentenced to suffer the supreme penalty [of] DEATH in each of the two cases; and indemnify the victim LUCELLE SERRANO, in the amount of P50,000 as moral damages for each of the cases; 2. In Criminal Case Nos. 97-387 and 97-388, for acts of lasciviousness, the prosecution has proven beyond reasonable doubt the guilt of the accused, FELICIANO ULIT Y TAMPOY, as principal in two counts of acts of lasciviousness defined under Article 336 of the Revised Penal Code and penalized under Section 5(b) of R.A. 7610. He is hereby declared CONVICTED in each of the two cases; and, accordingly, he is sentenced to suffer in each of the cases an indeterminate prison term from eight (8) years, eight (8) months and one (1) day of prision mayor in its medium period, as minimum, to fifteen (15) years, six (6) months and twenty (20) days of reclusion temporal in its medium period, as maximum; and, indemnify the victim, LUCELLE SERRANO, in the amount of P20,000 as moral damages for each of the cases. SO ORDERED.18 The trial court declared that even prescinding from the appellants plea of guilty, the prosecutor adduced proof beyond reasonable doubt of the guilt of the appellant for qualified rape in Criminal Cases Nos. 97-385 and 97-386. The trial court ruled that although Lucelle did not testify on the contents of her sworn statement19 the same were admissible in evidence as part of the res gestae. The appellant did not appeal from the decision in Criminal Cases Nos. 97-387 and 97-388. In view of the trial courts imposition of the death penalty on the appellant in Criminal Cases Nos. 97-385 and 97-386, the said cases were brought to this Court on automatic appeal. The appellant assails the decision of the trial court with the lone assignment of error, to wit:

THE TRIAL COURT ERRED IN SENTENCING THE ACCUSED FELICIANO ULIT WITH A DEATH PENALTY DESPITE HIS ADMISSION OF GUILT.20 The appellant does not contest his conviction for rape in Criminal Cases Nos. 97-385 and 97-386, and the validity of the proceedings in the said cases in the trial court. He pleads, however, that he be spared the death penalty. He asserts that he was so remorseful for the crimes he committed and that he pleaded guilty in Criminal Cases Nos. 97-385 and 97-387; he no longer presented any evidence in Criminal Case No. 97-388 so that the proceedings before the court would be shortened and simplified. Nevertheless, the appeal in a criminal case is a review de novo and the court is not limited to the assigned errors.21 An appeal thus opens the whole case for review, and the appellate tribunal may consider and correct errors though unassigned and even reverse the decision of the trial court on the grounds other than those the parties raised as errors.22 Appellants Plea of Guilty in Criminal Case No. 97-385 was Imprudently Made. In Criminal Case No. 97-385, the appellant was charged with qualified rape, i.e., the rape of his niece, who was a minor, punishable by death under Article 335 of the Revised Penal Code, as amended by Republic Act No. 7659. Undoubtedly, the appellant was charged with a capital offense. When the appellant informed the trial court of his decision to change his plea of "not guilty" to "guilty," it behooved the trial court to conduct a searching inquiry into the voluntariness and full comprehension of the consequences of his plea as mandated by Section 6, Rule 116 of the Revised Rules of Criminal Procedure. In People vs. Camay,23 this Court enumerated the following duties of the trial court under the rule: 1. The court must conduct a searching inquiry into the voluntariness and full comprehension [by the accused] of the consequences of his plea; 2. The court must require the prosecution to present evidence to prove the guilt of the accused and precise degree of his culpability; and 3. The court must require the prosecution to present evidence in his behalf and allow him to do so if he desires.24 The raison detre for the rule is that the courts must proceed with extreme care where the imposable penalty is death, considering that the execution of such sentence is irrevocable. Experience has shown that even innocent persons have at times pleaded guilty. Improvident pleas of guilty to a capital offense on the part of the accused must be averted since by admitting his guilt before the trial court, the accused would forfeit his life and liberty without having fully understood the meaning, significance and the dire consequences of his plea.25 There is no hard and fast rule as to how the trial judge may conduct a searching inquiry. It has been held, however, that the focus of the inquiry must be on the voluntariness of the plea and the full or complete comprehension by the accused of

his plea of guilty so that it can truly be said that it is based on a free and informed judgment. In People vs. Aranzado,26 we formulated the following guidelines as to how the trial court may conduct its searching inquiry: (1) Ascertain from the accused himself (a) how he was brought into the custody of the law; (b) whether he had the assistance of a competent counsel during the custodial and preliminary investigations; and (c) under what conditions he was detained and interrogated during the investigations. These the court shall do in order to rule out the possibility that the accused has been coerced or placed under a state of duress either by actual threats of physical harm coming from malevolent or avenging quarters. (2) Ask the defense counsel a series of questions as to whether he had conferred with, and completely explained to, the accused the meaning and consequences of a plea of guilty. (3) Elicit information about the personality profile of the accused, such as his age, socio-economic status, and educational background, which may serve as a trustworthy index of his capacity to give a free and informed plea of guilty. (4) Inform the accused the exact length of imprisonment or nature of the penalty under the law and the certainty that he will serve such sentence. Not infrequently indeed an accused pleads guilty in the hope of a lenient treatment or upon bad advice or because of promises of the authorities or parties of a lighter penalty should he admit guilt or express remorse. It is the duty of the judge to see to it that the accused does not labor under these mistaken impressions. (5) Require the accused to fully narrate the incident that spawned the charges against him or make him reenact the manner in which he perpetrated the crime, or cause him to supply missing details or significance.27 In People vs. Ostia,28 we held that the trial court is also required to probe thoroughly into the reasons or motivations, as well as the facts and circumstances for a change of plea of the accused and his comprehension of his plea; explain to him the elements of the crime for which he is charged as well as the nature and effect of any modifying circumstances attendant to the commission of the offense, inclusive of mitigating and aggravating circumstances, as well as the qualifying and special qualifying circumstances, and inform him of the imposable penalty and his civil liabilities for the crime for which he would plead guilty to.29 In this case, the trial court failed to make a searching inquiry into the appellants voluntariness and full comprehension of his plea of guilty. This is evident by the transcript of stenographic notes taken on November 5, 1998: ATTY. MANALO

Your Honor, at todays reception of defense evidence, accused informed this representation that he will no longer present evidence and instead willing to change his plea from not guilty to that of guilty. This accuseds representation is therefore praying that he be allowed to change his plea from that of not guilty to guilty. COURT You better confer with your client and explain to him the consequences of his intended change of plea from not guilty to that of guilty. ATTY. MANALO Yes, Your Honor. COURT (to the accused) Is your counsels manifestation true, that you would like to change your plea from not guilty to that of guilty and that you are no longer presenting evidence in Criminal Cases Nos. 97-386 and 97-388? ACCUSED Yes, Your Honor. COURT (to the accused) You talk with your lawyer and think twice before asking the court to change your plea of not guilty to that of guilty. The Court will call your case again. COURT (to the accused) Mr. Ulit, earlier your counsel informed the court that you would like to change your plea from not guilty to that of guilty, in Criminal Case No. 97-385, for rape and Criminal Case No. 97-387, for Acts of Lasciviousness, do you affirm the manifestation of your counsel? ACCUSED Yes, Your Honor. COURT

(to accused) Do you know that you are accused here for the crime of rape, a capital offense which carries with it a capital punishment? ACCUSED Yes, Your Honor. COURT (to accused) Despite your knowledge that you are charged with a capital offense which carries with it a capital penalty you still insists that you are pleading guilty? ACCUSED Yes, Your Honor. COURT (to accused) Was there anyone who forced you to change your plea of not guilty to that of guilty? ACCUSED None, Your Honor. COURT (to accused) Do you know that by pleading guilty you will be sentenced in accordance with [what] the law provides? ACCUSED Yes, Your Honor. COURT (to accused) Do you know that the penalty provided for by law is death penalty because the Information states that the victim is eleven years old and your niece and that you used a deadly weapon in the commission of the rape? ACCUSED

Yes, Your Honor. I am willing to plead guilty. COURT Alright, arraign the accused.30 First. The trial court did not ask the appellant his reasons for changing his plea, from not guilty to that of guilty, and the cogent circumstances that led him to decide to do so. Second. It appears in the Informations filed by the Public Prosecutor that the appellant opted not to avail himself of his right to a regular preliminary investigation and refused to execute a waiver under Article 125 of the Revised Penal Code. The records also show that the appellant executed a Sinumpaang Salaysay while detained at the barangay hall where he confessed to having raped the victim in February 1997 and March 2, 1997. However, the trial court did not ask the appellant whether he was assisted by counsel when he was brought to the Office of the Public Prosecutor for inquest investigation. Neither did the court a quo inquire about the circumstances and the appellants reasons for refusing to execute the said waiver. The records show that when the prosecution offered the appellants Sinumpaang Salaysay in evidence to prove that he confessed to having raped the victim in February 1997 and March 2, 1997, the appellant objected thereto on the ground that he was not assisted by counsel and that he was coerced into signing the same. Third. The trial court also failed to ascertain from the appellant whether he was assisted by counsel when he executed his Sinumpaang Salaysay while detained at the barangay hall; and, if he was not so assisted by counsel, whether he had waived his right thereto, before and when he signed his Sinumpaang Salaysay. Fourth. The trial court failed to ask the appellant why he was pleading guilty to a rape committed in November 1996, when in his Sinumpaang Salaysay,31 he confessed to having raped the victim only in February 1997 and March 2, 1997. The appellant did not admit having raped her in November 1996 as alleged in the Information in Criminal Case No. 97-385. The trial court did not even inquire from the appellant who prepared and typed his Sinumpaang Salaysay and if the contents of his statement were explained to him before he signed the same. Fifth. The trial court did not explain the following to the appellant, in plain and simple terms so as to be understood by him: (a) the elements of the crime of qualified rape; (b) the circumstances of relationship and the minority of the victim; and (c) that his plea of guilty to qualified rape would not mitigate the penalty for the crime in light of Article 63 of the Revised Penal Code.

Sixth. It was not explained to the appellant that if convicted of qualified rape, he would be civilly liable to the victim in the amount of P50,000 as moral damages and P75,000 as civil indemnity ex delicto. Seventh. Neither did the trial court inquire from the appellants counsel whether the meaning and the consequences of a guilty plea were explained to the appellant in a language or dialect known to and understood by him. Eight. The trial court failed to delve into and ascertain from the appellant his age, educational attainment and socio-economic status. Ninth. The trial court failed to ask the appellant to narrate the facts and circumstances surrounding the incident of qualified rape as charged in Criminal Case No. 97-385. Tenth. The appellant was not asked if he desired to adduce evidence in Criminal Case No. 97-385 in spite of his plea of guilty. As a rule, this Court has set aside convictions based on pleas of guilty in capital offenses because of the improvidence thereof, and when such plea is the sole basis of the condemnatory judgment.32 However, where the trial court receives, independently of his plea of guilty, evidence to determine whether the accused committed the crimes charged and the precise degree of his criminal culpability therefor, he may still be convicted if there is ample proof on record, not contingent on the plea of guilty, on which to predicate conviction.33 In this case, the prosecution had already rested its case when the appellant decided to change his plea. In fact, the trial court granted the prosecutions motion that the evidence it had presented be considered proof of the degree of culpability of the appellant. It is, thus, incumbent upon this Court to determine whether the evidence adduced by the prosecution in Criminal Case No. 97-385 is sufficient to establish beyond reasonable doubt the appellants guilt for qualified rape. In determining the guilt of the accused in rape cases, the Court is guided by the following considerations: (a) that an accusation of rape can be made with facility; it is difficult to prove, but more difficult for the person accused, though innocent, to disprove; (b) that in view of the intrinsic nature of the crime which usually involves two persons, the testimony of the complainant must be scrutinized with extreme caution; and (c) that the evidence for the prosecution must stand or fall on its own merits and cannot be allowed to draw strength from the weakness of the evidence of the defense.34 It, likewise, bears stressing that in all criminal prosecutions, without regard to the nature of the defense which the accused may raise, the burden of proof remains at all times upon the prosecution to establish his guilt beyond reasonable doubt.35 The Prosecution Adduced Proof of the Appellants Guilt Beyond Reasonable Doubt of the Crime

of Rape in Criminal Case No. 97-385 We have reviewed the evidence on record and we are convinced that the prosecution adduced proof beyond reasonable doubt that the appellant raped the victim in November 1996. The victim declared in her sworn statement, on direct examination and her testimony on clarificatory questions made by the trial court, that indeed, the appellant raped her in November 1996. Quoted hereunder is the testimony of Lucelle on direct and on re-direct examination: Fiscal Q So, matapos mong ituro ang tiyuhin mo, ano ang ginawa niya sa iyo? A Ginahasa niya ako. Q Ilang ulit kang ginahasa? A Marami po. Q Kailan ka ginahasa ng tiyuhin mo? A November po. Q 19? A 1996, po. Q Saan ka ginahasa? A 7104 San Maximo St., Makati City, po.36 Fiscal Q Humigit-kumulang, anong oras ng gabi nang gahasain ka ng Tito Ely mo noong Nobyembre 1996? A Alas onse po ng gabi. Q Samakatuwid, hindi na siya nagtratrabaho, wala na siya sa trabaho? A Wala na po. Q Saang lugar ka ginahasa? A Sa 7104 San Maximo St.

Q Sa loob ba ng bahay? A Opo. Q Saang parte ng bahay ka ginahasa ng Tito mo? A Sa kuwarto po.37 ... COURT Q Noong Nobyembre 1996, ayon sa iyo ay ginahasa ka ng iyong Tito. Saan ka ginahasa ng Tito mo? A Sa 7104 San Maximo St., po. Q Doon din sa bahay na iyong tinitirhan? A Opo.38 In her Sworn Statement,39 Lucelle narrated in detail how the appellant ravished her: 06. T: Kailan ka unang senalbahe ng iyong TITO ELY? S: Noon pong Nobyembre 1996 hindi ko na po matandaan ang petsa, mga bandang 6:00 ng gabi po nang ako ay natutulog sa loob po ng kuwarto ay nagising na lang po ako nang maramdaman ko na may humahalik sa aking pisngi, at nang ako po ay magising ay nakita ko po si TITO ELY na may hawak na balisong na humigit kumulang po sa 10 pulgada ang haba na nakatutok sa aking kaliwang leeg habang humahalik po sa aking pisngi at ang sabi ay kung ako daw po ay magsusumbong sa aking magulang ay papatayin po niya (TITO ELY) ako. Pagkatapos po ay hinubaran po ako ng panty at naghubad na rin po si TITO ELY ng kanyang short pants at pumatong na po sa akin. Ipinasok po ni TITO ELY and kanyang (TITO ELY) ari sa aking "PEPE" at ako po ay nasaktan at umiyak na lang po ako at nang makaraos po si TITO ELY ay umalis na lang .40 We do not agree with the ruling of the trial court that the contents of the sworn statement of Lucelle are hearsay, simply because she did not testify thereon and merely identified her signatures therein. By hearsay evidence is meant that kind of evidence which does not derive its value solely from the credence to be attributed to the witness herself but rests solely in part on the veracity and competence of some persons from whom the witness has received the information.41 It signifies all evidence which is not founded upon the personal knowledge of the witness from whom it is elicited, and which, consequently, is not subject to crossexamination.42 The basis for the exclusion appears to lie in the fact that such testimony is not subject to the test which can ordinarily be applied for the ascertainment of truth of testimony, since the declarant is not present and available for cross-examination. In criminal cases, the admission of hearsay evidence would

be a violation of the constitutional provision while the accused shall enjoy the right to confront and cross-examine the witness testifying against him.43 Generally, the affidavits of persons who are not presented to testify on the truth of the contents thereof are hearsay evidence.44Such affidavit must be formally offered in evidence and accepted by the court; otherwise, it shall not be considered by the court for the simple reason that the court shall consider such evidence formally offered and accepted.45 In this case, Lucelle testified on and affirmed the truth of the contents of her sworn statement which she herself had given. As gleaned from the said statement, she narrated how and when the appellant raped and subjected her to lascivious acts. She was cross-examined by the appellants counsel and answered the trial courts clarificatory questions. The prosecution offered her sworn statement as part of her testimony and the court admitted the same for the said purpose without objection on the part of the appellant. The Prosecution Proved Beyond Reasonable Doubt that the Appellant Raped the Victim in February 1997 The trial court convicted the appellant of rape in Criminal Case No. 97-386 on the basis of Lucelles sworn statement,46 the testimony of her mother, Lourdes Serrano, the appellants statement47 executed in the Barangay Chairmans Office, and the testimony of Dr. Armie Soreta-Umil. We agree with the trial courts findings and conclusion. First. In Lucelles sworn statement,48 she declared that the appellant subjected her to sexual abuse. Second. Lourdes saw Lucelle in bed (papag) in Marinas room, covered with a blanket beside the appellant who was wearing a pair of short pants and undershirt. He slid down from the papag, went under the bed and slipped outside. When Lourdes removed the blanket, she saw Lucelle trembling with fear, lying sidewise, her knees near her chin (nakabaluktot). Third. The appellant admitted to the barangay chairman on March 5, 1997, that he raped Lucelle in February 1997: Na, noong isang araw ng PEBRERO 1997, sa loob ng kuwarto ng aking kapatid na babae, pumasok ako na nadatnang nakahiga si LUCILLE ULIT sa isang papag na anyong natutulog. Lumapit ako sa kanya at pinaghihipuan sa maseselang parte ng kanyang katawan at nang siyay magising tinakot ko siyang huwag sisigaw, habang siya ay aking hinuhubaran ng "Short" na kasama pati ang kanyang "panty." Nagpupumiglas siya habang ako ay nakadagan sa kanya na noon din ay hinuhubad ko ang aking "brief." Pinaghahalikan ko po siya habang siya ay nagpupumiglas at umiiyak at noon din ay aking pinasok ang aking ari sa kanyang ari. Umiiyak siya habang ang aking ari ay labas masok sa kanyang ari. Nang ako ay makaraos ay tinakot ko siyang huwag magsusumbog sa kanyang mga magulang.49

Although the appellant was not assisted by counsel at the time he gave his statement to the barangay chairman and when he signed the same, it is still admissible in evidence against him because he was not under arrest nor under custodial investigation when he gave his statement.50 The exclusionary rule is premised on the presumption that the defendant is thrust into an unfamiliar atmosphere and runs through menacing police interrogation procedures where the potentiality for compulsion, physical and psychological, is forcefully apparent. As intended by the 1971 Constitutional Convention, this covers "investigation conducted by police authorities which will include investigations conducted by the municipal police, the PC and the NBI and such other police agencies in our government."51 The barangay chairman52 is not deemed a law enforcement officer for purposes of applying Section 12(1) and (3) of Article III of the Constitution. Under these circumstances, it cannot be successfully claimed that the appellants statement before the barangay chairman is inadmissible. The Sufficiency of Evidence on Lucelles Relationship with the Appellant, her Minority, and the Propriety of the Imposition of the Death Penalty The appellants conviction for two counts of rape having been duly established by the prosecution, we now come to the question of the penalty to be meted upon him. Article 335 of the Revised Penal Code, as amended by Section 11 of Republic Act No. 7659, which was the law in effect at the time of the commission of the subject rapes, provides in part: ART. 335. When and how rape is committed. - Rape is committed by having carnal knowledge of a woman under any of the following circumstances. 1. By using force or intimidation; 2. When the woman is deprived of reason or otherwise unconscious; and 3. When the woman is under twelve years of age or is demented. The crime of rape shall be punished by reclusion perpetua. Whenever the crime of rape is committed with the use of a deadly weapon or by two or more persons, the penalty shall be reclusion perpetua to death. ... The death penalty shall also be imposed if the crime of rape is committed with any of the following attendant circumstances:

1. When the victim is under eighteen (18) years of age and the offender is a parent, ascendant, step-parent, guardian, relative by consanguinity or affinity within the third civil degree, or the common-law spouse of the parent of the victim. ... The qualifying circumstances of minority and relationship must concur. More importantly, they must be both alleged and proved, in order to qualify the crime of rape and warrant the imposition of the death penalty.53 In addition to the requirement that the qualifying and aggravating circumstance must be specifically alleged in the information, it must be established with certainty that the victim was below eighteen (18) years of age or that she was a minor at the time of the commission of the crime. It must be stressed that the severity of the death penalty, especially its irreversible and final nature once carried out, makes the decisionmaking process in capital offenses aptly subject to the most exacting rules of procedure and evidence.54 The relationship between the appellant and the victim has been adequately established. The allegations in both Informations that the appellant is the victims "uncle," "a relative by consanguinity within the third civil degree" is specific enough to satisfy the special qualifying circumstance of relationship. In People v. Ferolino,55 we said In this case the allegation that FERLYN is ANTONIO's niece is not specific enough to satisfy the special qualifying circumstances of relationship. If the offender is merely a relation - not a parent, ascendant, step-parent, or guardian or common law spouse of the mother of the victim - it must be alleged in the information that he is "a relative by consanguinity or affinity [as the case may be] within the third civil degree." That relationship by consanguinity or affinity was not alleged in the informations in these cases. Even if it was, it was still necessary to further allege that such relationship was within the third civil degree.56 The prosecutions evidence has also shown that the appellant is the victims uncle, being the older brother of the victims mother, a fact that the appellant himself admitted. The same cannot, however, be said with respect to the age of the victim. In People v. Pruna,57 the Court, after noting the divergent rulings on proof of age of the victim in rape cases, set out certain guidelines in appreciating age, either as an element of the crime or as qualifying circumstance: 1. The best evidence to prove the age of the offended party is an original or certified true copy of the certificate of live birth of such party. 2. In the absence of a certificate of live birth, similar authentic documents such as baptismal certificate and school records which show the date of birth of the victim would suffice to prove age.

3. If the certificate of live birth or authentic document is shown to have been lost or destroyed or otherwise unavailable, the testimony, if clear and credible, of the victim's mother or a member of the family either by affinity or consanguinity who is qualified to testify on matters respecting pedigree such as the exact age or date of birth of the offended party pursuant to Section 40, Rule 130 of the Rules on Evidence shall be sufficient under the following circumstances: a. If the victim is alleged to be below 3 years of age and what is sought to be proved is that she is less than 7 years old; b. If the victim is alleged to be below 7 years of age and what is sought to be proved is that she is less than 12 years old; c. If the victim is alleged to be below 12 years of age and what is sought to be proved is that she is less than 18 years old. 4. In the absence of a certificate of live birth, authentic document, or the testimony of the victim's mother or relatives concerning the victim's age, the complainant's testimony will suffice provided that it is expressly and clearly admitted by the accused. 5. It is the prosecution that has the burden of proving the age of the offended party. The failure of the accused to object to the testimonial evidence regarding age shall not be taken against him. 6. The trial court should always make a categorical finding as to the age of the victim.58 In the present case, no birth certificate or any similar authentic document was presented and offered in evidence to prove Lucelles age. While the victim testified that she was born on February 19, 1986, therefore 11 years old when the appellant twice raped her, the same will not suffice as the appellant did not expressly and clearly admit the same as required by Pruna. The corroboration of Lucelles mother as to her age is not sufficient either, as there is no evidence that the said certificate of birth was lost or destroyed or was unavailable without the fault of the prosecution. The fact that there was no objection from the defense regarding the victims age cannot be taken against the appellant since it is the prosecution that has the burden of proving the same. Moreover, the trial court did not make a categorical finding of the victims minority, another requirement mandated by Pruna. Another issue that needs to be settled is the third paragraph of Article 335 of the Revised Penal Code, as amended, which provides that, "[w]henever rape is committed with the use of a deadly weapon or by two or more persons, the imposable penalty shall be reclusion perpetua to death." The evidence on record shows that the appellant raped Lucelle with the use of a deadly weapon in both rape incidents as alleged in both informations, and under

Article 335 of the Revised Penal Code, as amended by Republic Act No. 7659, the imposable penalty for the crime is reclusion perpetua to death. In the determination of whether the death penalty should be imposed on the appellant, the presence of an aggravating circumstance in the commission of the crime is crucial. In the cases at bar, although the relationship of uncle and niece between the appellant and the victim has been duly proven, the alternative circumstance of relationship under Article 15 of the Revised Penal Code cannot be appreciated as an aggravating circumstance against the appellant. While it is true that the alternative circumstance of relationship is always aggravating in crimes against chastity, regardless of whether the offender is a relative of a higher or lower degree of the offended party, it is only taken into consideration under Article 15 of the Revised Penal Code "when the offended party is the spouse, ascendant, descendant, legitimate, natural or adopted brother or sister, or relative by affinity in the same degree of the offender." The relationship of uncle and niece is not covered by any of the relationships mentioned.59 Hence, for the prosecutions failure to prove the age of the victim by any means set forth in Pruna, and considering that the relationship of uncle and niece is not covered by any of the relationships mentioned in Article 15 of the Revised Penal Code, as amended, the appellant can only be convicted of rape in its aggravated form, the imposable penalty for which is reclusion perpetua to death. There being no modifying circumstances attendant to the commission of the crimes, the appellant should be sentenced to suffer reclusion perpetua for each count of rape, conformably to Article 69 of the Revised Penal Code. The victim is entitled to moral damages without need of proof other than the fact of the rape itself because it is assumed that the victim has suffered moral injuries entitling her to such an award.60 We find the trial courts award of P50,000 as moral damages to the victim in each rape to be in order. However, the trial court erred in not awarding civil indemnity to the victim in each case, the same being mandatory upon the finding of the fact of rape.61 Thus, this Court awards the victim the sum of P50,000 as civil indemnity for each count of rape. In addition to this, appellant is ordered to pay the victim P25,000 as exemplary damages, the qualifying aggravating circumstance of use of a deadly weapon having attended the commission of the crime.62 WHEREFORE, the Decision of the Regional Trial Court of Makati City, Branch 62, in Criminal Cases Nos. 97-385 to 97-388 is AFFIRMED with MODIFICATION. The appellant Feliciano Ulit y Tampoy is found GUILTY beyond reasonable doubt of two counts of rape in Criminal Cases Nos. 97-385 and 97-386, and in each case, is hereby sentenced to suffer the penalty of reclusion perpetua and ordered to pay the victim, Lucelle Serrano, P50,000 as moral damages; P50,000 as civil indemnity; and P25,000 as exemplary damages. Costs de oficio.

SO ORDERED. G.R. No. 76100 April 18, 1990 SALEM ALEX PALO y TOYUR, petitioner, vs. HON. FRANCIS J. MILITANTE, Presiding Judge, Regional Trial Court of Cebu, 7th Judicial Region, Branch XII, respondent. Rolindo A. Navarro for petitioner.

REGALADO, J.: The petition at bar seeks to nullify the following a Judgment of conviction, dated June 11, 1986, sentencing petitioner to suffer imprisonment of six (6) years and one (1) day and to pay a fine of P6,000.00 and the costs of suit; (b) Order of respondent judge, dated August 25, 1986, denying petitioner's application for probation; and (c) Order of respondent judge, dated September 19, 1986, denying petitioner's omnibus motion for reconsideration. The facts which gave rise to the foregoing judicial issuances follow. On May 10, 1986, agents of the Narcotics Command in Cebu City apprehended petitioner who was in possession of three (3) sticks of marijuana cigarettes. He was subsequently charged with violation of the second paragraph of Section 8, Article II of Republic Act No. 6425, otherwise known as the Dangerous Drugs Act of 1972, as amended. During the plea bargaining on June 11, 1986, petitioner, through his counsel de oficio, manifested his desire to plead guilty to the offense charged provided that he be meted a sentence that would qualify him to apply for probation. The prosecution did not manifest any objection. Thus, upon being duly arraigned on the same date, petitioner, also assisted by his counsel de oficio, pleaded guilty. After respondent judge clarified to petitioner the consequences of his plea, a judgment of conviction was promulgated sentencing petitioner to suffer imprisonment of six (6) years and one (1) day and to pay a fine of P6,000.00, together with the costs of suit. 1 Immediately thereafter, petitioner, through counsel, manifested that he was applying for probation and prayed that his bond be allowed to continue until his probation may have been granted. Respondent judge granted the prayer and issued an order, dated June 11, 1986, allowing petitioner to remain on provisional liberty under the same bond. 2 On June 13, 1986, respondent judge, acting on petitioner's application for probation, ordered the Probation Officer of the City of Cebu to conduct a post-sentence investigation on the petitioner. 3

However, on August 25, 1986, respondent judge issued an order motu proprio denying the application for probation and ordering petitioner to serve his sentence. It was explained in the order that petitioner was not entitled to probation in view of a memorandum circular coming from the Probation Administration, dated July 15, 1986, which states, inter alia, that persons sentenced to serve a maximum term of imprisonment of more than six (6) years are not entitled to probation. 4 In view of this development, petitioner was re-arrested and committed to jail on September 5, 1986. On September 15, 1986, petitioner, through his counsel de parte, filed an omnibus motion for reconsideration and for the withdrawal of an improvident plea of guilty. 5 The comments of the prosecution indicated no objection to said motion. 6 After hearing the omnibus motion for reconsideration on September 19, 1986, respondent judge denied the same,7 hence the present special civil action for the extraordinary writ of certiorari. In a resolution dated October 27, 1986, the Court, through the First Division, issued a temporary restraining order enjoining respondent judge from enforcing his order of August 25, 1986. The following issues are raised by petitioner for resolution, viz: 1. Whether or not respondent judge gravely abused his discretion in denying petitioner's omnibus motion for reconsideration; 2. Whether or not petitioner may still withdraw his improvident plea of guilty; and 3. Whether or not Batas Pambansa Bilang 76 was repealed by Presidential Decree No. 1990 so as to disqualify petitioner from the benefits of probation. 8 To bolster his recourse, petitioner insists that his plea of guilty was improvident because he was not properly apprised of the consequences of his plea and that the only conceivable consequence he had in his mind at the time he pleaded guilty to the charge was that he would be extended the benefits of probation instead of going to jail after his conviction. He advances the view that his motion to withdraw his improvident plea of guilty was timely because the filing of an application for probation suspends the running of the period for perfecting an appeal or to withdraw an improvident plea of guilty. He further argues that Batas Pambansa Blg. 76, which qualifies accused persons sentenced to six (6) years and one (1) day imprisonment to the benefits of probation, has not been repealed expressly or impliedly by Presidential Decree No. 1990. The petition is devoid of merit; certiorari will not lie. Section 7, Rule 120 of the 1985 Rules on Criminal Procedure is explicit that a judgment in a criminal case becomes final when the accused has applied for probation. This is totally in accord with Section 4 of Presidential Decree No. 968,

otherwise known as the Probation Law of 1976, as amended, which in part provides that the filing of an application for probation is deemed a waiver of the right to appeal. In other words, the judgment ipso factoattains finality, although it is not yet executory pending resolution of the application for probation. Thus, the judgment in the lower court having become final, the respondent judge is not vested with any discretion to allow the alleged improvident plea of guilty to be withdrawn and be substituted by a plea of not guilty. 9 Again, even on the assumption that the judgment was not yet final, the factual circumstances do not render or categorize as improvident the plea of guilty entered by petitioner. As observed by respondent judge who filed his memorandum in propria persona, "(u)pon arraignment, the petitioner understood the allegations in the information and he knew very well the import of his plea. He was a third year college student so that it cannot be said that he did not understand the information read to him. He admitted he had in his possession three (3) sticks of marijuana cigarettes without any authority nor license to possess them." 10 These facts are also recited in the assailed judgment of conviction, dated June 11, 1986, with the following ramification, to wit: "Asked by the Court why he had in his possession these three sticks of marijuana cigarettes, the accused answered that he wanted to try smoking them. He was further asked whether he realized that by his plea of guilty he would be sentenced accordingly by this Court and again the accused answered in the affirmative."11 The fact that he was merely assured by the prosecution that he could apply for probation if he pleaded guilty is no guarantee that his application for probation would consequently be approved by the court. He was made to understand the consequences of his plea. Every accused must realize that he cannot attach a string or condition to his plea of guilty and, in fact, the records of the case below reflect his unconditional plea. The withdrawal of such plea is not a matter of strict right to the accused but of sound discretion to the trial court, and the appellate court will not interfere with such discretion in the absence of abuse thereof. As further explained by respondent judge, "there was no assurance made by the respondent that the petitioner would be granted probation. There was only an assurance that petitioner could apply for probation but there was no assurance that his application would be granted. 12 It would indeed have been uncalled for and premature to give such an assurance in advance, when the post-sentence investigation had not even started. It is thus clearly established that petitioner openly admitted that he was caught while in possession of three (3) sticks of marijuana cigarettes. Considering that an application for probation is an admission of guilt on the part of the accused for the crime which led to the judgment of conviction, 13 even if we were to evaluate the merits of his said application, the same should be denied on the ground that to rule

otherwise will not only depreciate the seriousness of the offense committed but will also subvert the ends of justice and the best interest of the community. 14 Equally devoid of merit is petitioner's contention that the filing of an application for probation suspends the running of the period for perfecting an appeal. The pertinent portion of Section 4 of Presidential Decree No. 968, as amended by Presidential Decree No. 1990, provides: Sec. 4. Grant of Probation. Subject to the provisions of this Decree, the trial court may, after it shall have convicted and sentenced a defendant, and upon application by said defendant within the period for perfecting an appeal, suspend the execution of the sentence and place the defendant on probation for such period and upon such terms and conditions as it may deem best; Provided, That no application for probation shall be entertained or granted if the defendant has perfected an appeal from its judgment of conviction. (Emphasis ours.) It is clear that what the law requires is that the application for probation must be filed within the period for perfecting an appeal. The need to file it within such period was intended to encourage offenders, who are willing to be reformed and rehabilitated, to avail of probation at the first opportunity. 15 Such provision, was never intended to suspend the period for the perfection of an appeal. As earlier noted, the filing of the application for probation operates as a waiver of the right to appeal. Thus, there is no more opportunity for the accused to exercise his right to appeal, much less to withdraw a supposed improvident plea of guilty, the judgment having become final by the filing of the application for probation. Significantly, the judgment was promulgated on June 11, 1986 and became final on June 26, 1986, but it was only on September 15, 1986, almost three (3) months later, that petitioner moved to withdraw his plea of guilty. The last issue has already been resolved by the Court in Amandy vs. People, et al., 16 which likewise involved a violation of Section 8, Article II of Republic Act No. 6425, and the elucidation wherein we reiterate: The original Probation Law of 1976, Presidential Decree No. 968 provided in its Section 9 that "(t)he benefits of this Decree shall not be extended to those: a) sentenced to serve a minimum term of imprisonment of more than six years . . ." In 1980, Batas Pambansa Big. 76 amended Section 9 of P.D. 968 by stating that the benefits of the Decree shall not be extended to those "sentenced to serve a maximum term of imprisonment of more than six years and one day." Subsequently, in 1985 then President Marcos promulgated Presidential Decree No. 1990 which amended BP 76 and returned to the earlier formulation in P.D. No. 968. The latest decree on the matter excludes

from the benefits of the Probation Law any applicant who has been "sentenced to serve a maximum term of imprisonment of more than six years." It is apparent from the history of the provision in question that a disagreement on policy matters existed between the then President and the then legislature. In the two Presidential Decrees, the President was for denying probation to any one sentenced to imprisonment of more than six years. The Batasan, on the other hand, was for amending the applicable term of imprisonment to more thansix years and one day. Since under the unusual situation then existing, both the Batasang Pambansa and the President could legislate on the same subject at the same time, the latter issuance has to prevail. This is P.D. 1990. As stated by the Solicitor General, P.D. 1990 realizes the need to correct B.P. 76 which extended to offenders penalized to suffer the penalty of 6 years and 1 day, the benefits of the Probation Law. Thus, it amended B.P. 76 by reverting to P.D. 968 such that only those sentenced to suffer correctional penalties shall be entitled to suspended sentences through probation. . . . xxx xxx xxx The other argument that the omission of "one day" from P.D. 1990 is the result of a misprint or inadvertence in the careless preparation of Presidential Decrees cannot be given serious consideration. P.D. 1990 merely went back to the P.D. 968 wording. The supposed misprint is the exact dividing line between correctional penalties and afflictive penalties. It is suggested that petitioner's deprivation of the benefits of probation was a product of misunderstanding or miscommunication and that he would not have pleaded guilty had that amendment by Presidential Decree No. 1990 been brought to his attention. We are, however, bound by the actual proceedings that transpired and not by what is represented to have been a party's intent. Yet, assuming that there is some truth in said surmise, from what has been said and while one may empathize with petitioner's submission, still even if he had not pleaded guilty the end result would have been the same. From the judicial record, a guilty verdict, and even a higher penalty, would have been a distinct probability. All told, dura lex sed lex is the trite dictum which those caught in the toils of the law have to live with, including the changes therein and the misapprehensions thereon. ACCORDINGLY, the petition at bar is hereby DISMISSED and the temporary restraining order issued pursuant to the Court's resolution of October 27, 1986 is hereby LIFTED. SO ORDERED.

G.R. No. 164015

February 26, 2009

RAMON A. ALBERT, Petitioner, vs. THE SANDIGANBAYAN, and THE PEOPLE OF THE PHILIPPINES, Respondents. DECISION CARPIO, J.: The Case This is a petition for certiorari1 of the Resolutions dated 10 February 20042 and 3 May 20043 of the Sandiganbayan. The 10 February 2004 Resolution granted the prosecutions Motion to Admit the Amended Information. The 3 May 2004 Resolution denied the Motion For Reconsideration of petitioner Ramon A. Albert (petitioner). The Facts On 24 March 1999, the Special Prosecution Officer (SPO) II of the Office of the Ombudsman for Mindanao charged petitioner and his co-accused, Favio D. Sayson and Arturo S. Asumbrado, before the Sandiganbayan with violation of Section 3(e) of Republic Act No. 3019 (RA 3019) or the Anti-Graft and Corrupt Practices Act in Criminal Case No. 25231. The Information alleged: The undersigned Special Prosecution Officer II of the Office of the Ombudsman for Mindanao hereby accuses RAMON A. ALBERT, FAVIO D. SAYSON, and ARTURO S. ASUMBRADO for (sic) violation of Section 3(e) R.A. 3019, as amended, committed as follows: That in (sic) or about May 1990 and sometime prior or subsequent thereto, in the City of Davao, Philippines and within the jurisdiction of this Honorable Court, accused RAMON A. ALBERT, a public officer, being then the President of the National Home Mortgage and Finance Corporation, occupying the said position with a salary grade above 27, while in the performance of his official function, committing the offense in relation to his office, taking advantage of his official position, conspiring and confederating with accused FAVIO D. SAYSON, then the Project Director of CODE Foundation Inc. and accused ARTURO S. ASUMBRADO, then the President of the Buhangin Residents and Employees Association for Development, Inc., acting with evident bad faith and manifest partiality and or gross neglect of duty, did then and there willfully, unlawfully and criminally cause undue injury to the government and public interest, enter and make it appear in Tax Declaration Nos. D-3-1-7691 and D-3-1-7692 that two parcels of real property particularly described in the Certificate of Titles Nos. T-151920 and T-151921 are residential lands which Tax Declarations accused submitted to the NHMFC when in truth and in fact, as accused well knew, the two pieces of real property covered by Certificate of Titles Nos. T151920 and T-151921 are agricultural land, and by reason of accuseds misrepresentation, the NHMFC released the amount ofP4,535,400.00 which is

higher than the loanable amount the land could command being agricultural, thus causing undue injury to the government. CONTRARY TO LAW.4 On 26 March 1999, a Hold Departure Order was issued by the Sandiganbayan against petitioner and his co-accused. On 25 May 1999, petitioner filed a Motion to Dismiss Criminal Case No. 25231 on the following grounds: (1) the accused (petitioner) was denied due process of law; (2) the Office of the Ombudsman did not acquire jurisdiction over the person of the accused; (3) the constitutional rights of the accused to a speedy disposition of cases and to a speedy trial were violated; and (4) the resolution dated 26 February 1999 finding the accused guilty of violation of Section 3(e) of RA 3019 is not supported by evidence.5 On 18 December 2000, pending the resolution of the Motion to Dismiss, petitioner filed a Motion to Lift Hold Departure Order and to be Allowed to Travel. The prosecution did not object to the latter motion on the condition that petitioner would be "provisionally" arraigned.6 On 12 March 2001, petitioner filed an Urgent Motion to Amend Motion to Lift Hold Departure Order and to be Allowed to Travel. The following day, or on 13 March 2001, the Sandiganbayan arraigned petitioner who entered a plea of "not guilty." In the Resolution dated 16 April 2001, the Sandiganbayan granted petitioners Urgent Motion to Amend Motion to Lift Hold Departure Order and to be Allowed to Travel. On 26 November 2001, the Sandiganbayan denied petitioners Motion to Dismiss and ordered the prosecution to conduct a reinvestigation of the case with respect to petitioner. In a Memorandum dated 6 January 2003, the SPO who conducted the reinvestigation recommended to the Ombudsman that the indictment against petitioner be reversed for lack of probable cause. However, the Ombudsman, in an Order dated 10 March 2003, disapproved the Memorandum and directed the Office of the Special Prosecutor to proceed with the prosecution of the criminal case. Petitioner filed a Motion for Reconsideration of the Order of the Ombudsman. In a Resolution promulgated on 16 May 2003, the Sandiganbayan scheduled the arraignment of petitioner on 24 July 2003. However, in view of the pending motion for reconsideration of the order of the Ombudsman, the arraignment was reset to 2 October 2003. In a Manifestation dated 24 September 2003, the SPO informed the Sandiganbayan of the Ombudsmans denial of petitioners motion for reconsideration. On even date, the prosecution filed an Ex-Parte Motion to Admit Amended Information. During the 2 October 2003 hearing, this ex-parte motion was withdrawn by the prosecution with the intention of filing a Motion for Leave to Admit Amended Information. The scheduled arraignment of petitioner was reset to 1 December 2003.7 On 7 October 2003, the prosecution filed a Motion for Leave to Admit Amended Information. The Amended Information reads:

The undersigned Special Prosecution Officer I of the Office of Special Prosecutor, hereby accuses RAMON A. ALBERT, FAVIO D. SAYSON, and ARTURO S. ASUMBRADO for (sic) violation of Section 3(e) R.A. 3019, as amended, committed as follows: That in (sic) or about May 1990 and sometime prior or subsequent thereto, in the City of Davao, Philippines and within the jurisdiction of this Honorable Court, accused RAMON A. ALBERT, a public officer, being then the President of the National Home Mortgage and Finance Corporation, occupying the said position with a salary grade above 27, while in the performance of his official function, committing the offense in relation to his office, taking advantage of his official position, conspiring and confederating with accused FAVIO D. SAYSON, then the Project Director of CODE Foundation Inc. and accused ARTURO S. ASUMBRADO, then the President of the Buhangin Residents and Employees Association for Development, Inc., acting with evident bad faith and manifest partiality and/or gross inexcusable negligence, did then and there willfully, unlawfully and criminally cause undue injury to the government and public interest, enter and make it appear in Tax Declaration Nos. D-3-1-7691 and D-3-1-7692 that two parcels of real property particularly described in the Certificate of Titles Nos. T-151920 and T-151921 are residential lands which Tax Declarations accused submitted to the NHMFC when in truth and in fact, as accused well knew, the two pieces of real property covered by Certificate of Titles Nos. T-151920 and T-151921 are agricultural land, and by reason of accuseds misrepresentation, the NHMFC released the amount ofP4,535,400.00 which is higher than the loanable amount the land could command being agricultural, thus causing undue injury to the government. CONTRARY TO LAW.8 Petitioner opposed the motion, alleging that the amendment made on the information is substantial and, therefore, not allowed after arraignment. The Ruling of the Sandiganbayan In its Resolution of 10 February 2004,9 the Sandiganbayan granted the prosecutions Motion to Admit Amended Information. At the outset, the Sandiganbayan explained that "gross neglect of duty" which falls under Section 3(f) of RA 3019 is different from "gross inexcusable negligence" under Section 3(e), and held thus: In an information alleging gross neglect of duty, it is not a requirement that such neglect or refusal causes undue injury compared to an information alleging gross inexcusable negligence where undue injury is a constitutive element. A change to this effect constitutes substantial amendment considering that the possible defense of the accused may divert from the one originally intended. It may be considered however, that there are three modes by which the offense for Violation of Section 3(e) may be committed in any of the following: 1. Through evident bad faith;

2. Through manifest partiality; 3. Through gross inexcusable negligence. Proof of the existence of any of these modes in connection with the prohibited acts under said section of the law should suffice to warrant conviction.10 However, the Sandiganbayan also held that even granting that the amendment of the information be formal or substantial, the prosecution could still effect the same in the event that the accused had not yet undergone a permanent arraignment. And since the arraignment of petitioner on 13 March 2001 was merely "provisional," then the prosecution may still amend the information either in form or in substance. Petitioner filed a Motion for Reconsideration, which was denied by the Sandiganbayan in its Resolution of 3 May 2004. Hence this petition. The Issues The issues raised in this petition are: 1. WHETHER THE SANDIGANBAYAN GRAVELY ABUSED ITS DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN ADMITTING THE AMENDED INFORMATION; AND 2. WHETHER THE SANDIGANBAYAN GRAVELY ABUSED ITS DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN FURTHER PROCEEDING WITH THE CASE DESPITE THE VIOLATION OF THE RIGHT OF THE ACCUSED TO A SPEEDY TRIAL. The Ruling of the Court The petition has no merit. On Whether the Sandiganbayan Should Admit the Amended Information Section 14 of Rule 110 of the Revised Rules of Criminal Procedure provides: Sec. 14. Amendment or Substitution.-- A complaint or information may be amended, in form or in substance, without leave of court, at any time before the accused enters his plea. After the plea and during the trial, a formal amendment may only be made with leave of court and when it can be done without causing prejudice to the rights of the accused. xxx Petitioner contends that under the above section, only a formal amendment of the information may be made after a plea. The rule does not distinguish between a plea made during a "provisional" or a "permanent" arraignment. Since petitioner already

entered a plea of "not guilty" during the 13 March 2001 arraignment, then the information may be amended only in form. An arraignment is that stage where in the mode and manner required by the rules, an accused, for the first time, is granted the opportunity to know the precise charge that confronts him.11 The accused is formally informed of the charges against him, to which he enters a plea of guilty or not guilty. As an indispensable requirement of due process, an arraignment cannot be regarded lightly or brushed aside peremptorily.12 The practice of the Sandiganbayan of conducting "provisional" or "conditional" arraignments is not sanctioned by the Revised Internal Rules of the Sandiganbayan or by the regular Rules of Court.13 However, in People v. Espinosa,14 this Court tangentially recognized such practice, provided that the alleged conditions attached thereto should be "unmistakable, express, informed and enlightened." Moreover, the conditions must be expressly stated in the Order disposing of the arraignment; otherwise, the arraignment should be deemed simple and unconditional.15 In the present case, the arraignment of petitioner is reflected in the Minutes of the Sandiganbayan Proceedings dated 13 March 2001 which merely states that the "[a]ccused when arraigned entered a plea of not guilty. The Motion to Travel is granted subject to the usual terms and conditions imposed on accused persons travelling (sic) abroad."16 In the Resolution of 16 April 2001,17 the Sandiganbayan mentioned the arraignment of petitioner and granted his Urgent Motion to Amend Motion to Lift Hold Departure Order and to be Allowed to Travel, setting forth the conditions attendant thereto which, however, were limited only to petitioners itinerary abroad; the setting up of additional bailbond; the required appearance before the clerk of court; and written advice to the court upon return to the Philippines. Nothing on record is indicative of the provisional or conditional nature of the arraignment. Hence, following the doctrine laid down in Espinosa, the arraignment of petitioner should be deemed simple and unconditional. The rules mandate that after a plea is entered, only a formal amendment of the Information may be made but with leave of court and only if it does not prejudice the rights of the accused. Petitioner contends that replacing "gross neglect of duty" with "gross inexcusable negligence" is a substantial amendment of the Information which is prejudicial to his rights. He asserts that under the amended information, he has to present evidence that he did not act with "gross inexcusable negligence," evidence he was not required to present under the original information. To bolster his argument, petitioner refers to the 10 February 2004 Resolution of the Sandiganbayan which ruled that the change "constitutes substantial amendment considering that the possible defense of the accused may divert from the one originally intended."18lawphil.net We are not convinced.

Petitioner is charged with violation of Section 3(e) of RA 3019 which provides as follows: SEC. 3. Corrupt practices of public officers. In addition to acts or omissions of public officers already penalized by existing law, the following shall constitute corrupt practices of any public officer and are hereby declared to be unlawful: xxx (e) Causing any undue injury to any party, including the Government, or giving any private party any unwarranted benefits, advantage or preference in the discharge of his official, administrative or judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence. This provision shall apply to officers and employees of offices or government corporations charged with the grant of licenses or permits or other concessions. This crime has the following essential elements:19 1. The accused must be a public officer discharging administrative, judicial or official functions; 2. He must have acted with manifest partiality, evident bad faith or gross inexcusable negligence; and 3. His action caused any undue injury to any party, including the government, or gave any private party unwarranted benefits, advantage or preference in the discharge of his functions. The second element provides the different modes by which the crime may be committed, that is, through "manifest partiality," "evident bad faith," or "gross inexcusable negligence."20 In Uriarte v. People,21 this Court explained that Section 3(e) of RA 3019 may be committed either by dolo, as when the accused acted with evident bad faith or manifest partiality, or by culpa, as when the accused committed gross inexcusable negligence. There is "manifest partiality" when there is a clear, notorious, or plain inclination or predilection to favor one side or person rather than another.22 "Evident bad faith" connotes not only bad judgment but also palpably and patently fraudulent and dishonest purpose to do moral obliquity or conscious wrongdoing for some perverse motive or ill will.23 "Evident bad faith" contemplates a state of mind affirmatively operating with furtive design or with some motive or self-interest or ill will or for ulterior purposes.24 "Gross inexcusable negligence" refers to negligence characterized by the want of even the slightest care, acting or omitting to act in a situation where there is a duty to act, not inadvertently but willfully and intentionally, with conscious indifference to consequences insofar as other persons may be affected.25 The original information filed against petitioner alleged that he acted with "evident bad faith and manifest partiality and or (sic) gross neglect of duty." The amended information, on the other hand, alleges that petitioner acted with "evident bad faith and manifest partiality and/or gross inexcusable negligence." Simply, the

amendment seeks to replace "gross neglect of duty" with "gross inexcusable negligence." Given that these two phrases fall under different paragraphs of RA 3019specifically, "gross neglect of duty" is under Section 3(f) while "gross inexcusable negligence" is under Section 3(e) of the statutethe question remains whether or not the amendment is substantial and prejudicial to the rights of petitioner. The test as to when the rights of an accused are prejudiced by the amendment of a complaint or information is when a defense under the complaint or information, as it originally stood, would no longer be available after the amendment is made, and when any evidence the accused might have, would be inapplicable to the complaint or information as amended.26 On the other hand, an amendment which merely states with additional precision something which is already contained in the original information and which, therefore, adds nothing essential for conviction for the crime charged is an amendment to form that can be made at anytime.27lavvphil In this case, the amendment entails the deletion of the phrase "gross neglect of duty" from the Information. Although this may be considered a substantial amendment, the same is allowable even after arraignment and plea being beneficial to the accused.28 As a replacement, "gross inexcusable negligence" would be included in the Information as a modality in the commission of the offense. This Court believes that the same constitutes an amendment only in form. In Sistoza v. Desierto,29 the Information charged the accused with violation of Section 3(e) of RA 3019, but specified only "manifest partiality" and "evident bad faith" as the modalities in the commission of the offense charged. "Gross inexcusable negligence" was not mentioned in the Information. Nonetheless, this Court held that the said section is committed by dolo or culpa, and although the Information may have alleged only one of the modalities of committing the offense, the other mode is deemed included in the accusation to allow proof thereof.30 In so ruling, this Court applied by analogy the pronouncement in Cabello v. Sandiganbayan31where an accused charged with willful malversation was validly convicted of the same felony of malversation through negligence when the evidence merely sustained the latter mode of perpetrating the offense. The Court held that a conviction for a criminal negligent act can be had under an information exclusively charging the commission of a willful offense upon the theory that the greater includes the lesser offense. Thus, we hold that the inclusion of "gross inexcusable negligence" in the Information, which merely alleges "manifest partiality" and "evident bad faith" as modalities in the commission of the crime under Section 3(e) of RA 3019, is an amendment in form. On Whether Petitioners Right to a Speedy Trial was Violated Petitioner contends that the complaint-affidavit against him was filed on 15 June 1992, but it was resolved by the Office of the Ombudsman-Mindanao only on 26 February 1999, or after a period of almost seven (7) years. Four (4) years thereafter, the SPO, upon reinvestigation of the case, recommended that the case against petitioner be dismissed for lack of probable cause, but this recommendation was denied by the Ombudsman. A Motion for Leave to Admit Amended Information was later filed by the prosecution and granted by the Sandiganbayan in the

questioned Resolution of 10 February 2004. Thus, petitioner maintains that it took the Office of the Ombudsman twelve (12) years since the initial filing of the complaint-affidavit in 1992 to charge accused with the offense under the Amended Information, in violation of petitioners right to a speedy trial. Petitioners contentions are futile. The right of an accused to a speedy trial is guaranteed under Section 16, Article III of the Philippine Constitution which provides: "All persons shall have the right to a speedy disposition of their cases before all judicial, quasi-judicial, or administrative bodies." This right, however, is deemed violated only when the proceeding is attended by vexatious, capricious, and oppressive delays; or when unjustified postponements of the trial are asked for and secured; or when without cause or justifiable motive a long period of time is allowed to elapse without the party having his case tried.32 A simple mathematical computation of the period involved is not sufficient. We concede that judicial proceedings do not exist in a vacuum and must contend with the realities of everyday life.33 After reviewing the records of the case, we believe that the right of petitioner to a speedy trial was not infringed upon. The issue on the inordinate delay in the resolution of the complaint-affidavit filed against petitioner and his co-accused and the filing of the original Information against petitioner was raised in petitioners Motion to Dismiss, and was duly addressed by the Sandiganbayan in its Resolution denying the said motion. It appears that the said delays were caused by the numerous motions for extension of time to file various pleadings and to reproduce documents filed by petitioners co-accused, and that no actual preliminary investigation was conducted on petitioner. The Sandiganbayan properly held that a reinvestigation of the case as to petitioner was in order. Although the reinvestigation inadvertently resulted to further delay in the proceedings, this process could not have been dispensed with as it was done for the protection of the rights of petitioner himself. It is well-settled that although the conduct of an investigation may hold back the progress of a case, it is necessary so that the accused's right will not be compromised or sacrificed at the altar of expediency.34 The succeeding events appear to be parts of a valid and regular course of judicial proceedings not attended by delays which can be considered vexatious, capricious, oppressive, or unjustified. Hence, petitioners contention of violation of his right to a speedy trial must fail. WHEREFORE, we DISMISS the petition. We AFFIRM the Resolutions dated 10 February 2004 and 3 May 2004 of the Sandiganbayan in Criminal Case No. 25231. SO ORDERED. Rule 117 G.R. No. 103102 March 6, 1992

CLAUDIO J. TEEHANKEE, JR., petitioner, vs. HON. JOB B. MADAYAG and PEOPLE OF THE PHILIPPINES, respondents.

REGALADO, J.: In this special civil action for certiorari, prohibition and mandamus, petitioner principally seeks: (1) to nullify the order 1 of respondent judge admitting the amended information for murder filed in Criminal Case No. 91-4606; (2) to nullify the arraignment and the plea of not guilty entered by order of respondent judge when petitioner refused to be arraigned on the amended information for lack of preliminary investigation therefor; (3) to nullify the appointment of a counsel de oficio/PAO lawyer to represent petitioner; (4) to prohibit respondent judge from "over-speedy and preferential scheduling of the trial of the aforementioned criminal case;" and (5) to compel respondent judge to order preliminary investigation of the crime charged in the amended information. Petitioner was originally charged on July 19, 1991 in an information of frustrated murder allegedly committed as follows:
2

for the crime

That on or about the 13th day of July 1991, in the Municipality of Makati, Metro Manila, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, while armed with a handgun, with intent to kill, treachery and evident premeditation, did then and there willfully, unlawfully, and feloniously attack, assault and shoot one Maureen Navarro Hultman on the head, thereby inflicting gunshot wounds, which ordinarily would have caused the death of said Maureen Navarro Hultman, thereby performing all the acts of execution which would have produced the crime of Murder as a consequence, but nevertheless did not produce it by reason of cause or causes independent of her will, that is, due to the timely and able medical assistance rendered to said Maureen Navarro Hultman which prevented her death. After the prosecution had rested its case, petitioner was allowed to file a motion for leave to file a demurrer to evidence. However, before the said motion could be filed, Maureen Navarro Hultman died. Consequently, private prosecutor Rogelio A. Vinluan filed an omnibus motion leave of court to file an amended information and to admit said amended information. The amended information, 4 filed on October 31, 1991, reads:
3

for

That on or about the 13th day of July, 1991, in the Municipality of Makati, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the said Claudio Teehankee, Jr. y. Javier, armed with a handgun, with intent to kill and evident premeditation and by means of treachery, did then and there willfully, unlawfully and feloniously

attack, assault and shoot with the said handgun Maureen Navarro Hultman who was hit in the head, thereby inflicting mortal wounds which directly caused the death of said Maureen Hultman. Petitioner filed an opposition 5 thereto, as well as a rejoinder 6 to the reply 7 of the prosecution. On November 13, 1991, the trial court issued the questioned order admitting the amended information. At the scheduled arraignment on November 26, 1991, petitioner refused to be arraigned on the amended information for lack of a preliminary investigation thereon. By reason of such refusal, respondent judge ordered that a plea of "not guilty" be entered for petitioner. Thereafter, respondent judge ordered the prosecution to present its evidence. When petitioner's counsel manifested that he would not take part in the proceedings because of the legal issue raised, the trial court appointed a counsel de oficio to represent herein petitioner. Petitioner now raises the following issues before us: (a) Whether or not an amended information involving a substantial amendment, without preliminary investigation, after the prosecution has rested on the original information, may legally and validly be admitted; (b) Whether or not a counsel de oficio may legally and validly be appointed to represent an accused who is represented by counsel of choice who refuses to participate in the proceedings because of a perceived denial of due process and after a plea for appellate remedies within a short period is denied by the trial court; and (c) Whether or not a particular criminal case may legally and validly be rushed and preferentially scheduled for trial over and at the expense and sacrifice of other, specially older, criminal cases. 8 In our resolution of January 14, 1992, we required the Solicitor General to file a comment to the basic petition. It appearing from a further review of the record that the operative facts and determinant issues involved in this case are sufficiently presented in the petition and the annexes thereto, both in regard to the respective positions of petitioner and respondents, the Court has decided to dispense with the aforesaid comment to obviate needless delay in fairness to petitioner. I. Petitioner avers that the additional allegation in the amended information, as herein underscored, that the accused ". . . did then and there willfully, unlawfully and feloniously attack, assault and shoot with the said handgun Maureen Navarro Hultman who was hit in the head, thereby inflicting mortal wounds which directly caused the death of said Maureen Hultman . . ." constitutes a substantial amendment since it involves a change in the nature of the offense charged, that is, from frustrated to consummated murder. Petitioner further submits that "(t)here is

a need then to establish that the same mortal wounds, which were initially frustrated (sic) by timely and able medical assistance, ultimately caused the death of the victim, because it could have been caused by a supervening act or fact which is not imputable to the offender." 9 From this, he argues that there being a substantial amendment, the same may no longer be allowed after arraignment and during the trial. Corollary thereto, petitioner then postulates that since the amended information for murder charges an entirely different offense, involving as it does a new fact, that is, the fact of death whose cause has to be established, it is essential that another preliminary investigation on the new charge be conducted before the new information can be admitted. We find no merit in the petition. There are sufficient legal and jurisprudential moorings for the orders of the trial court. Section 14, Rule 110 of the 1985 Rules on Criminal Procedure provides: Sec. 14. Amendment. The information or complaint may be amended, in substance or form, without leave of court, at any time before the accused pleads; and thereafter and during the trial as to all matters of form, by leave and at the discretion of the court, when the same can be done without prejudice to the rights of the accused. If it appears at any time before judgment that a mistake has been made in charging the proper offense, the court shall dismiss the original complaint or information upon the filing of a new one charging the proper offense in accordance with Rule 119, Section 11, provided the accused would not be placed thereby in double jeopardy and may also require the witnesses to give bail for their appearance at the trial. The first paragraph provides the rules for amendment of the information or complaint, while the second paragraph refers to the substitution of the information or complaint. It may accordingly be posited that both amendment and substitution of the information may be made before or after the defendant pleaded, but they differ in the following respects: 1. Amendment may involve either formal or substantial changes, while substitution necessarily involves a substantial change from the original charge; 2. Amendment before plea has been entered can be effected without leave of court, but substitution of information must be with leave of court as the original information has to be dismissed; 3. Where the amendment is only as to form, there is no need for another preliminary investigation and the retaking of the plea of the accused; in substitution

of information, another preliminary investigation is entailed and the accused has to plead anew to the new information; and 4. An amended information refers to the same offense charged in the original information or to an offense which necessarily includes or is necessarily included in the original charge, hence substantial amendments to the information after the plea has been taken cannot be made over the objection of the accused, for if the original information would be withdrawn, the accused could invoke double jeopardy. On the other hand, substitution requires or presupposes that the new information involves a different offense which does not include or is not necessarily included in the original charge, hence the accused cannot claim double jeopardy. In determining, therefore, whether there should be an amendment under the first paragraph of Section 14, Rule 110, or a substitution of information under the second paragraph thereof, the rule is that where the second information involves the same offense, or an offense which necessarily includes or is necessarily included in the first information, and amendment of the information is sufficient; otherwise, where the new information charges an offense which is distinct and different from that initially charged, a substitution is in order. There is identity between the two offenses when the evidence to support a conviction for one offense would be sufficient to warrant a conviction for the other, or when the second offense is exactly the same as the first, or when the second offense is an attempt to commit or a frustration of, or when it necessarily includes or is necessarily included in, the offense charged in the first information. In this connection, an offense may be said to necessarily include another when some of the essential elements or ingredients of the former, as this is alleged in the information, constitute the latter. And, vice-versa, an offense may be said to be necessarily included in another when the essential ingredients of the former constitute or form a part of those constituting the latter. 10 Going now to the case at bar, it is evident that frustrated murder is but a stage in the execution of the crime of murder, hence the former is necessarily included in the latter. It is indispensable that the essential element of intent to kill, as well as qualifying circumstances such as treachery or evident premeditation, be alleged in both an information for frustrated murder and for murder, thereby meaning and proving that the same material allegations are essential to the sufficiency of the informations filed for both. This is because, except for the death of the victim, the essential elements of consummated murder likewise constitute the essential ingredients to convict herein petitioner for the offense of frustrated murder. In the present case, therefore, there is an identity of offenses charged in both the original and the amended information. What is involved here is not a variance in the nature of different offenses charged, but only a change in the stage of execution of the same offense from frustrated to consummated murder. This is being the case, we hold that an amendment of the original information will suffice and, consequent thereto, the filing of the amended information for murder is proper. Petitioner would insist, however, that the additional allegation on the fact of death of the victim Maureen Navarro Hultman constitutes a substantial amendment which

may no longer be allowed after a plea has been entered. The proposition is erroneous and untenable. As earlier indicated, Section 14 of Rule 110 provides that an amendment, either of form or substance, may be made at any time before the accused enters a plea to the charge and, thereafter, as to all matters of form with leave of court. A substantial amendment consists of the recital of facts constituting the offense charged and determinative of the jurisdiction of the court. All other matters are merely of form. 11 Thus, the following have been held to be merely formal amendments, viz: (1) new allegations which relate only to the range of the penalty that the court might impose in the event of conviction; 12 (2) an amendment which does not charge another offense different or distinct from that charged in the original one; 13 (3) additional allegations which do not alter the prosecution's theory of the case so as to cause surprise to the accused and affect the form of defense he has or will assume; and (4) an amendment which does not adversely affect any substantial right of the accused, such as his right to invoke prescription. 14 We repeat that after arraignment and during the trial, amendments are allowed, but only as to matters of form andprovided that no prejudice is caused to the rights of the accused. 15 The test of whether an amendment is only of form and an accused is not prejudiced by such amendment has been said to be whether or not a defense under the information as it originally stood would be equally available after the amendment is made, and whether or not any evidence the accused might have would be equally applicable to the information in the one form as in the other; if the answer is in the affirmative, the amendment is one of form and not of substance. 16 Now, an objective appraisal of the amended information for murder filed against herein petitioner will readily show that the nature of the offense originally charged was not actually changed. Instead, an additional allegation, that is, the supervening fact of the death of the victim was merely supplied to aid the trial court in determining the proper penalty for the crime. That the accused committed a felonious act with intent to kill the victim continues to be the prosecution's theory. There is no question that whatever defense herein petitioner may adduce under the original information for frustrated murder equally applies to the amended information for murder. Under the circumstances thus obtaining, it is irremissible that the amended information for murder is, at most, an amendment as to form which is allowed even during the trial of the case. It consequently follows that since only a formal amendment was involved and introduced in the second information, a preliminary investigation is unnecessary and cannot be demanded by the accused. The filing of the amended information without the requisite preliminary investigation does not violate petitioner's right to be secured against hasty, malicious and oppressive prosecutions, and to be protected from an open and public accusation of a crime, as well as from the trouble, expenses and anxiety of a public trial. The amended information could not conceivably have come as a surprise to petitioner for the simple and obvious reason that it charges essentially the same offense as that charged under the original information. Furthermore, as we have heretofore held, if the crime originally charged is related to the amended charge such that an inquiry into one would elicit

substantially the same facts that an inquiry into the other would reveal, a new preliminary investigation is not necessary. 17 We find nothing irregular in the appointment by the trial court of a counsel de oficio for herein petitioner whose counsel of record refused to participate in the proceedings because of an alleged legal issue. Such issue having been demonstrated herein as baseless, we apprehend his refusal to participate in the trial as causative of or contributive to the delay in the disposition of the case. And, finally, for as long as the substantial rights of herein petitioner and other persons charged in court are not prejudiced, the scheduling of cases should be left to the sound discretion of the trial court. WHEREFORE, it being clearly apparent that respondent judge did not commit the errors speciously attributed to him, the extraordinary writs prayed for are hereby DENIED and the instant petition is DISMISSED for lack of merit. SO ORDERED. [G.R. No. 127107. October 12, 1998] PETER PAUL DIMATULAC and VERONICA DIMATULAC,petitioners, vs. HON. SESINANDO VILLON in his capacity as Presiding Judge of the Regional Trial Court of Pampanga, Branch 54; HON. TEOFISTO GUINGONA, in his capacity as Secretary of Justice; MAYOR SANTIAGO YABUT, SERVILLANO YABUT, MARTIN YABUT and FORTUNATO MALLARI, respondents. DECISION DAVIDE, JR., J.: The issues raised by petitioners in their Memorandum[1] and by the Office of the Solicitor General in its Comment[2] in this special civil action for certiorari, prohibition and mandamusunder Rule 65 of the Rules of Court filed by petitioners, children of the deceased Police Officer 3 (PO3) Virgilio Dimatulac of Masantol, Pampanga, may be summarized as follows: A. WHETHER THE OFFICE OF THE PROVINCIAL PROSECUTOR COMMITTED GRAVE ABUSE OF DISCRETION IN: (1) GIVING DUE COURSE TO THE MOTION FOR REINVESTIGATION BY PRIVATE RESPONDENTS AGAINST WHOM WARRANTS OF ARREST WERE ISSUED BUT WHO HAD NOT YET BEEN BROUGHT INTO THE CUSTODY OF THE LAW; and (2) FILING THE INFORMATION FOR HOMICIDE DESPITE KNOWLEDGE OF THE APPEAL FROM SAID PROSECUTORS RESOLUTION TO THE OFFICE OF THE SECRETARY OF JUSTICE. B. WHETHER PUBLIC RESPONDENT JUDGE ACTED IN EXCESS OF JURISDICTION IN PROCEEDING WITH THE ARRAIGNMENT AND IN DENYING PETITIONERS MOTIONS TO SET ASIDE ARRAIGNMENT AND RECONSIDERATION THEREOF DESPITE HIS KNOWLEDGE OF THE PENDENCY OF THE APPEAL AND THE SUBMISSION OF VITAL

EVIDENCE TO PROVE THAT MURDER AND NOT HOMICIDE WAS COMMITTED BY THE ACCUSED. C. WHETHER PUBLIC RESPONDENT SECRETARY OF JUSTICE COMMITTED GRAVE ABUSE OF DISCRETION IN RECONSIDERING HIS ORDER FINDING THAT THE CRIME COMMITTED WAS MURDER AND DIRECTING THE PROVINCIAL PROSECUTOR TO AMEND THE INFORMATION FROM HOMICIDE TO MURDER. The records and the pleadings of the parties disclose the antecedents. On 3 November 1995, SPO3 Virgilio Dimatulac was shot dead at his residence in Barangay San Nicolas, Masantol, Pampanga. On 5 November 1995, a complaint for Murder was filed before the Municipal Circuit Trial Court (MCTC) of Macabebe-Masantol in Macabebe, Pampanga, by SPO1 Renato Layug of the Masantol Police Station against private respondents Mayor Santiago Yabut, Martin Yabut, Servillano Yabut, Evelino David, Justino Mandap, Casti David, Francisco Yambao, Juan Magat, Arturo Naguit, Fortunato Mallari, Jesus de la Cruz, Joselito Miranda, SPO3 Gilberto Malabanan, Aniano Magnaye, Vladimir Yumul, a certain Danny, and a certain Koyang/Arding. The complaint was docketed as Criminal Case No. 95-360. After conducting a preliminary examination in the form of searching questions and answers, and finding probable cause, Judge Designate Serafin B. David of the MCTC issued warrants for the arrest of the accused and directed them to file their counter-affidavits. Only accused Evelino David, Justino Mandap, Juan Magat and Francisco Yambao were arrested; while only Francisco Yambao submitted his counter affidavit.[3] On 1 December 1995, after appropriate proceedings, Judge David issued a Resolution[4] in Criminal Case No. 95-360 finding reasonable ground to believe that the crime of murder had been committed and that the accused were probably guilty thereof. His findings of fact and conclusions were as follows: That on or about November 3, 1995, all the accused under the leadership of Mayor Santiago Docsay Yabut, including two John Does identified only as Dan/Danny and Koyang/Arding, went to Masantol, Pampanga for the purpose of looking for a certain PO3 Virgilio Dimatulac. At first, the accused, riding on [sic] a truck, went to the Municipal Hall of Masantol, Pampanga inquiring about PO3 Virgilio Dimatulac. Thereafter, they went to the house of Mayor Lacap for the purpose of inquiring [about] the [the location of the] house of PO3 Virgilio Dimatulac, until finally, they were able to reach the house of said Virgilio Dimatulac at San Nicolas, Masantol, Pampanga. Upon reaching the house of PO3 Virgilio Dimatulac, the truck the accused were all riding, stopped and parked in front of the house of said PO3 Virgilio Dimatulac, some of the accused descended from the truck and positioned themselves around

the house while others stood by the truck and the Mayor stayed [in] the truck with a bodyguard. Accused Billy Yabut, Kati Yabut and Francisco Yambao went inside the house of Virgilio Dimatulac [and] were even offered coffee. [A]ccused Yabut brothers (Kati and Billy) strongly suggested to Virgilio Dimatulac to go down to see the Mayor outside in front of his house to say sorry. [W]hen Virgilio Dimatulac went down from his house, suddenly [a] gun shot was heard and then, the son of Virgilio Dimatulac, Peter Paul, started to shout the following words: What did you do to my father?! One of the men of Mayor Docsay Yabut shot Virgilio Dimatulac, and as a consequence, he died; and before he expired, he left a dying declaration pointing to the group of Mayor Docsay Yabut as the one responsible. That right after Virgilio Dimatulac was shot, accused Docsay Yabut ordered his men to go on board the truck and immediately left away leaving Virgilio Dimatulac bleeding and asking for help. On their way home to Minalin, accused Santiago Docsay Yabut gave money to accused John Doe Dan/Danny and Francisco Boy Yambao was asked to bring the accused John Doe to Nueva Ecija which he did. Further, accused Santiago Docsay Yabut told his group to deny that they ever went to Masantol. The court, after having conducted preliminary examination on the complainant and the witnesses presented, [is] satisfied that there is a [sic] reasonable ground to believe that the crime of murder was committed and that the accused in conspiring and confederating with one another are probably guilty thereof. Circumstantial evidence strongly shows the presence of conspiracy. That in order not to frustrate the ends of justice, warrants of arrest were issued against Santiago Yabut, Martin Yabut, Servillano Yabut, Francisco Yambao, Avelino David, Casti David, Catoy Naguit, Fortunato Mallari, Boy dela Cruz, Lito Miranda and Juan Magat with no bail recommended. However, with respect to accused Dan/Danny and Koyang/Arding, the court directed the police authorities to furnish the court [a] descriptio personae of the accused for the purpose of issuing the needed warrant of arrest. The accused were furnish [sic] copies of the complaint and affidavits of witnesses for them to file their counter-affidavits in accordance to [sic] law.

As of this date, only accused Francisco Boy Yambao filed his counter-affidavit and all the others waived the filing of the same. A close evaluation of the evidence submitted by the accused Francisco Yambao which the court finds it [sic] straightforward and more or less credible and seems to be consistent with truth, human nature and [the] natural course of things and lack of motives [sic], the evidence of guilt against him is rather weak [compared to] the others, which [is why] the court recommends a cash bond of P50,000.00 for his provisional liberty, and the courts previous order of no bail for said accused is hereby reconsidered. WHEREFORE, premises considered, the Clerk of Court is directed to forward the entire records of the case to the Office of the Provincial Prosecutor of Pampanga for further action, together with the bodies of accused Francisco Yambao and Juan Magat to be remanded to the provincial Jail of Pampanga.[5] (underscoring supplied) In a sworn statement,[6] petitioner Peter Paul Dimatulac narrated that Mayor Santiago Yabut, accompanied by a number of bodyguards, went to the residence of PO3 Virgilio Dimatulac to talk about a problem between the Mayor and Peter Pauls uncle, Jun Dimatulac. Virgilio warmly welcomed the group and even prepared coffee for them. Servillano and Martin Yabut told Virgilio to come down from his house and apologize to the Mayor, but hardly had Virgilio descended when Peter Paul heard a gunshot. While Peter Paul did not see who fired the shot, he was sure it was one of Mayor Yabuts companions. Peter Paul opined that his father was killed because the latter spoke to the people of Minalin, Pampanga, against the Mayor. Peter Paul added in a supplemental statement (Susog na Salaysay)[7] that he heard Mayor Yabut order Virgilio killed. In his Sinumpaang Salaysay,[8] Police Officer Leopoldo Soriano of the Masantol Municipal Police Station in Masantol, Pampanga, declared that on 3 November 1995, between 3:30 and 4:00 p.m., while he was at the police station, three men approached him and asked for directions to the house of Mayor Epifanio Lacap. Soriano recognized one of the men as SPO1 Labet Malabanan of Minalin, Pampanga. The group left after Soriano gave them directions, but one of the three returned to ask whether PO3 Virgilio Dimatulac was on duty, to which Soriano replied that Dimatulac was at home. The group left on board a military truck headed for San Nicolas, Masantol, Pampanga. Later that day, SPO2 Michael Viray received a telephone call at the police station reporting that someone had shot Virgilio Dimatulac. Thereafter, Pampanga Assistant Provincial Prosecutor Sylvia Q. Alfonso-Flores conducted a reinvestigation. However, it is not clear from the record whether she conducted the same motu proprio or upon motion of private respondents Santiago Yabut, Servillano Yabut and Martin Yabut (hereafter YABUTs). All of the accused who had not submitted their counter-affidavits before the MCTC, except accused

Danny and Koyang/Arding, submitted their counter-affidavits to Assistant Provincial Prosecutor Alfonso Flores. In her Resolution dated 29 January 1996,[9] Assistant Provincial Prosecutor AlfonsoFlores found that the YABUTs and the assailant Danny, to the exclusion of the other accused, were in conspiracy with one another, but that the offense committed was only homicide, not murder. In support of such finding, Alfonso-Flores reasoned thus: The complainant in this case charges the crime of Murder qualified by treachery. It must be noted that to constitute treachery, two conditions must be present, to wit, 1) the employment of the [sic] means of execution were give [sic] the person attacked no opportunity to defend himself or to retaliate; and 2) the means of execution were deliberately or consciously adopted xxx. In the instant case, the presence of the first requisite was clearly established by the evidence, such that the attack upon the victim while descending the stairs was so sudden and unexpected as to render him no opportunity to defend himself or to retaliate. However, the circumstances, as portrayed by witness Peter Paul Dimatulac, negate the presence of the second requisite. According to the said witness, the victim was already descending when Mayor Yabut commanded the assailant to shoot him, and immediately thereafter, he heard the gunshot. This would therefore show that the assailant did not consciously adopt the position of the victim at the time he fired the fatal shot. The command of Mayor Yabut to shoot came so sudden as to afford no opportunity for the assailant to choose the means or method of attack. The act of Mayor Yabut in giving the command to shoot further bolster[s] the fact that the conspirator did not concert the means and method of attack nor the manner thereof. Otherwise there would have been no necessity for him to give the order to the assailant. The method and manner of attack was adopted by the assailant at the spur of the moment and the vulnerable position of the victim was not deliberately and consciously adopted. Treachery therefore could not be appreciated and the crime reasonably believe[d] to have been committed is Homicide as no circumstance would qualify the killing to murder. Alfonso-Flores then ruled: WHEREFORE, in view of the foregoing, it is hereby recommended that: 1. An information be filed with the proper court charging Santiago, Servillano and Martin all surnamed Yabut, and one John Doe alias Danny as conspirators in the crime of Homicide; 2. The case be dismissed against accused Evelino David, Justino Mandap a.k.a. Casti David, Francisco Yambao, Juan Magat, Arturo Naguit, Bladimir Dimatulac, Fortunato Mallari, Aniano Magnaye, Gilberto Malabanan, Jesus dela Cruz and Joselito Miranda.

Bail of P20,000.00 for each of the accused is likewise recommended. The Resolution discloses that Alfonso-Flores conducted a hearing on 11 January 1996 and clarificatory questions were propounded only to Peter Paul Dimatulac. On 23 February 1996, before the Information for homicide was filed, complainants, herein petitioners, appealed the resolution of Alfonso-Flores to the Secretary of the Department of Justice (DOJ).[10] They alleged in their appeal that: 1. THE ASSISTANT PROVINCIAL PROSECUTOR NOT ONLY ERRED IN RULING THAT THERE WAS NO TREACHERY TO QUALIFY THE CRIME TO MURDER, BUT LIKEWISE ERRED IN NOT APPRECIATING THE PRESENCE OF OTHER QUALIFYING CIRCUMSTANCES, TO WIT: A. THAT THE ACCUSED COMMITTED THE CRIME WITH THE AID OF ARMED MEN AND WITH THE USE OF A PERSON TO INSURE OR AFFORD IMPUNITY; B. THAT THE CRIME WAS COMMITTED IN CONSIDERATION OF A PRICE, REWARD, OR PROMISE; C. THAT THE CRIME WAS COMMITTED ON THE OCCASION OF A DESTRUCTIVE CYCLONE, WHEN THE SUPER-TYPHOON ROSING WAS RAGING ON NOVEMBER 3, 1995; D. THAT THE CRIME WAS COMMITTED WITH EVIDENT PREMEDITATION;

2. THAT THE HONORABLE INVESTIGATING ASSISTANT PROSECUTOR ERRED IN DISMISSING THE COMPLAINT AGAINST FORTUNATO MALLARI AND FRANCISCO YAMBAO BY RULING OUT CONSPIRACY WITH THE YABUT BROTHERS AS AGAINST FORTUNATO MALLARI AND NOT CHARGING FRANCISCO YAMBAO AS AN ACCESSORY TO MURDER. To refute Alfonso-Flores finding that the means of execution were not deliberately adopted, petitioners asserted that the meeting of the accused and the victim was not accidental as the former purposely searched for the victim at the height of a typhoon, while accused Mayor Santiago Yabut even remarked to his co-accused Danny, Dikitan mo lang, alam mo na kung ano ang gagawin mo, bahala ka na (Just stay close to him, you know what to do). Thus, Danny positioned himself near the stairs to goad the victim to come out of his house, while Fortunato Mallari represented to the deceased that the latter was being invited by a certain General Ventura. When the victim declined the invitation by claiming he was sick, accused Servillano Yabut persuaded the victim to come down by saying, [T]o settle this matter, just apologize to the Mayor who is in the truck. In view of that enticement, the victim came down, while Danny waited in ambush. To emphasize the accuseds resolve to kill the deceased, petitioners further narrated that when the deceased ran away after the first shot, the gunman still pursued him, while Mayor Santiago Yabut, who was a doctor, kept away at a safe distance and told everyone in the

truck, Tama na, bilisan ninyo, (Thats enough, move quickly) without giving medical assistance to the deceased and without exerting any effort to arrest the gunman. The Office of the Provincial Prosecutor of Pampanga was furnished with a copy of the Appeal. On 26 February 1996, Provincial Prosecutor Jesus Y. Manarang issued a Resolution[11] ordering the release of accused Evelino David, Justino Mandap, Juan Magat and Arturo Naguit (who were then detained) in view of the aforementioned resolution of Alfonso-Flores, which, as stated in the order, the Provincial Prosecutor approved on February 7, 1996. On 28 February 1996, an Information[12] for Homicide, signed by Assistant Provincial Prosecutor Flores and Provincial Prosecutor Jesus Y. Manarang, was filed before Branch 55 of the Regional Trial Court (RTC) in Macabebe, Pampanga, against the YABUTs and John Doe alias Danny Manalili and docketed as Criminal Case No. 96-1667(M). The accusatory portion of the information read as follows: That on or about the 3rd day of November, 1995, in the municipality of Masantol, province of Pampanga, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating together and mutually helping one another, with deliberate intent to take the life of PO3 Virgilio A. Dimatulac, did then and there wilfully, unlawfully and feloniously shoot the said PO3 Virgilio A. Dimatulac on his abdomen with the use of a handgun, thereby inflicting upon him a gunshot wound which cause[d] the death of the said victim. All contrary to law. The Information, although dated 29 January 1996 was signed by Provincial Prosecutor Manarang on 2/27/96, i.e., a day before its filing in court. On 28 February 1996, Judge Reynaldo V. Roura, presiding judge of Branch 55, approved the cash bonds of the YABUTs, each in the amount of P20,000.00, and recalled the warrants for their arrest.[13] On 29 February 1996, Atty. Amado Valdez, who had entered his appearance as private prosecutor, filed two (2) motions with the trial court: (1) a Motion to Issue Hold Departure Order Against All Accuseds[14] [sic]; and an (2) Urgent Motion to Defer Proceedings,[15] copies of which were furnished the Office of the Provincial Prosecutor of Pampanga. The second motion was grounded on the pendency of the appeal before the Secretary of Justice and a copy thereof was attached to the motion. Judge Roura set the motions for hearing on 8 March 1996.[16] On 7 March 1996, Judge Roura ordered the arrest of the remaining accused, Danny Manalili.[17]

On 8 March 1996, the YABUTs filed their opposition[18] to the Motion to Issue Hold Departure Order and the Motion to Defer Proceedings. The YABUTs asserted that, as to the first, by posting bail bonds, they submitted to the jurisdiction of the trial court and were bound by the condition therein to surrender themselves whenever so required by the court, and to seek permission from the court should any one of them desire to travel; and, as to the second, the pendency of the appeal before the Secretary of Justice was not a ground to defer arraignment; moreover, the trial court had to consider their right to a speedy trial, especially since there was no definite date for the resolution of the appeal. Then invoking this Courts rulings in Crespo v. Mogul[19] and Balgos v. Sandiganbayan,[20]the YABUTs further asserted that petitioners should have filed a motion to defer the filing of the information for homicide with the Office of the Provincial Prosecutor, or sought, from the Secretary of Justice, an order directing the Provincial Prosecutor to defer the filing of the information in court. In a Reply[21] to the opposition, the private prosecution, citing Section 20 of Rule 114 of the Rules of Court, insisted on the need for a hold-departure order against the accused; argued that the accuseds right to a speedy trial would not be impaired because the appeal to the Secretary of Justice was filed pursuant to Department Order No. 223 of the DOJ and there was clear and convincing proof that the killing was committed with treachery and other qualifying circumstances not absorbed in treachery; and contended that the accuseds invocation of the right to a speedy trial was inconsistent with their filing of various dilatory motions during the preliminary investigation. The YABUTs filed a Rejoinder[22] to this Opposition. On 26 March 1996, Judge Roura deferred resolution of the Motion to Issue a Hold Departure Order until such time that all the accused who are out on bail are arraigned, but denied the Motion to Defer Proceedings as he found no compelling reason therefor, considering that although the appeal was filed on 23 February 1996, the private prosecution has not shown any indication that [the] appeal was given due course by the Secretary of Justice. Judge Roura also set the arraignment of the accused on 12 April 1996.[23] It would appear that the private prosecution moved to reconsider the order denying the Motion to Defer Proceedings since, on 12 April 1996, Judge Roura issued an Order[24] giving the private prosecutor ten (10) days from today within which to file a petition for certiorari questioning the order of the Court denying his motion for reconsideration of the order of March 26, 1996. Arraignment was then reset to 3 May 1996. On 19 April 1996, petitioners filed a motion to inhibit Judge Roura[25] from hearing Criminal Case No. 96-1667(M) on the ground that he: (a) hastily set the case for arraignment while the formers appeal in the DOJ was still pending evaluation; and (b) prejudged the matter, having remarked in open court that there was nothing in the records of the case that would qualify the case into Murder. At the same time, petitioners filed a petition for prohibition[26] with the Court of Appeals docketed

therein as CA-G.R. SP No. 40393, to enjoin Judge Roura from proceeding with the arraignment in Criminal Case No. 96-1667(M). On 24 April 1996, Public Prosecutor Olimpio R. Datu filed a Manifestation and Comment[27] with the trial court wherein he opposed the motion to inhibit Judge Roura; manifested that there is nothing in the record which shows that the subject killing is qualified into murder; and announced that he will no longer allow the private prosecutor to participate or handle the prosecution of [the] case in view of the latters petition to inhibit Judge Roura. On 29 April 1996, Judge Roura voluntarily inhibited himself and ordered the case transferred to Branch 54 of the RTC, presided over by herein public respondent Judge Sesinando Villon.[28] On 30 April 1996, the Branch Clerk of Court of Branch 54 of the RTC received the record of Criminal Case No. 96-1667(M).[29] On 30 April 1996, petitioners filed with the trial court a Manifestation[30] submitting, in connection with their Motion to Defer Proceedings and Motion to Inhibit Judge Roura, documentary evidence to support their contention that the offense committed was murder, not homicide. The documents which they claimed were not earlier submitted by the public prosecution were the following: a. Counter-Affidavit of SPO1 Gilberto D. Malabanan. b. Sinumpaang Salaysay of Vladimir Yumul y Dimatulac. c. Counter-Affidavit of Francisco I. Yambao. d. Counter-Affidavit of SPO2 Fortunato Mallari. e. Sinumpaang Salaysay of Aniano Magnaye. f. Sinumpaang Salaysay of Leopoldo Soriano. g. Transcript of Stenographic Notes of the Preliminary Investigation of Criminal Case No. 95-360, containing the testimony of: a. b. c. d. Peter Paul Dimatulac Vladimir D. Yumul SPO1 Gilberto Malabanan PO3 Alfonso Canilao

h. Investigation Report- dated November 4, 1995.

i.

Dying declaration of Virgilio Dimatulac.

j. Sketch k. Unscaled Sketch Likewise on 30 April 1996, the Court of Appeals promulgated, in CA-G.R. SP No. 40393, a Resolution[31] directing respondent therein to file his comment to the petition within ten days from notice and to show cause within the same period why no writ of preliminary injunction should be issued as prayed for in the petition. However, the Court of Appeals deferred action on the prayer for a temporary restraining order until after the required comment [was] submitted. On 3 May 1996, petitioners filed an Ex-Parte Manifestation[32] with the RTC, furnishing the trial court with a copy of the aforementioned resolution of the Court of Appeals and drawing the attention of the trial court to the rulings of this Court in Valdez vs. Aquilisan, (133 SCRA 150), Galman vs. Sandiganbayan, and Eternal Gardens Memorial Park Corp. vs. Court of Appeals as well as the decision in Paul G. Roberts vs. The Court of Appeals. On 3 May 1996, Judge Villon issued an order resetting arraignment of the accused to 20 May 1996.[33] On the latter date, the YABUTs each entered a plea of not guilty.[34] Alarmed by the conduct of arraignment, petitioners filed, on 27 May 1996, an Urgent Motion to Set Aside Arraignment,[35] citing the resolution of 30 April 996 of the Court of Appeals in CA-G.R. SP No. 40393 which, inter alia, deferred resolution on the application for a temporary restraining order until after the required comment is submitted by the respondent; stressed that the filing of the information for the lesser offense of homicide was clearly unjust and contrary to law in view of the unquestionable attendance of circumstances qualifying the killing to murder; and asserted that a number of Supreme Court decisions supported suspension of the proceedings in view of the pendency of their appeal before the DOJ. On 31 May 1997, Judge Villon issued an Order[36] directing the accused to file their comment on the Urgent Motion to Set Aside Arraignment within fifteen days from notice. In a letter[37] addressed to the Provincial Prosecutor dated 7 June 1996, public respondent Secretary Teofisto Guingona of the DOJ resolved the appeal in favor of petitioners. Secretary Guingona ruled that treachery was present and directed the Provincial Prosecutor of San Fernando, Pampanga to amend the information filed against the accused from homicide to murder, and to include Fortunato Mallari as accused in the amended information. The findings and conclusions of Secretary Guingona read as follows:

Contrary to your findings, we find that there is treachery that attended the killing of PO3 Dimatulac. Undisputedly, the victim was suddenly shot while he was descending the stairs. The attack was unexpected as the victim was unarmed and on his way to make peace with Mayor Yabut, he was unsuspecting so to speak. From the circumstances surrounding his killing, PO3 Dimatulac was indeed deprived of an opportunity to defend himself or to retaliate. Corollarily, we are also convinced that such mode of attack was consciously and deliberately adopted by the respondents to ensure the accomplishment of their criminal objective. The admission of respondent Malabanan is replete with details on how the principal respondent, Mayor Yabut, in conspiracy with the assailant and others, had consciously and deliberately adopted means to ensure the execution of the crime. According to him, while they were on their way to the victims house, Mayor Yabut already instructed Danny, the assailant, that, Dikitan mo lang, alam no na king ano ang gagawin mo, bahala ka na. This explains why Danny positioned himself near the stairs of the victims house armed with a handgun, such positioning was precisely adopted as a means to ensure the accomplishment of their evil design and Mayor Yabut ordered nobody else but Danny to shoot the victim while descending the stairs as his position was very strategic to ensure the killing of the victim. As has been repeatedly held, to constitute treachery, two conditions must be present, to wit: (1) employment of means of execution that gives the person [attacked] no opportunity to defend himself or retaliate; and (2) the means of execution were deliberately or consciously adopted (People vs. Talaver, 230 SCRA 281 [1994]). In the case at bar, these two (2) requisites are present as established from the foregoing discussion. Hence, there being a qualifying circumstance of treachery, the crime committed herein is murder, not homicide (People vs. Gapasin, 231 SCRA 728 [1994]). Anent the alleged participation of respondents Fortunato Mallari and Francisco Yambao, we find sufficient evidence against Mallari as part of the conspiracy but not against Yambao. As can be gleaned from the sworn-statement of Yambao, which appears to be credible, Mallari tried also to persuade the victim to go with them, using as a reason that he (victim) was being invited by General Ventura. He was also seen trying to fix the gun which was used in killing the victim. These actuations are inconsistent with the claim that his presence at the crime scene was merely passive. On the other hand, we find credible the version and explanation of Yambao. Indeed, under the obtaining circumstances, Yambao had no other option but to accede to the request of Mayor Yabut to provide transportation to the assailant. There being an actual danger to his life then, and having acted under the impulse of an uncontrollable fear, reason dictates that he should be freed from criminal liability. [38]

The YABUTs moved to reconsider the resolution,[39] citing Administrative/Administration Order No. 223 of the DOJ.[40]

Section

of

In an Ex-Parte Manifestation[41] dated 21 June 1996, petitioners called the trial courts attention to the resolution of the Secretary of Justice, a copy of which was attached thereto. Later, in a Manifestation and Motion[42] dated 1 July 1996, petitioners asked the trial court to grant their motion to set aside arraignment. Attached thereto was a copy of the Manifestation and Motion[43] of the Solicitor General dated 18 June 1996 filed with the Court of Appeals in CA-G.R. SP No. 40393 wherein the Solicitor General joined cause with petitioners and prayed that in the better interest of justice, [the] Petition for Prohibition be GRANTED and a writ of prohibition be ISSUED forthwith. In support of said prayer, the Solicitor General argued: 2. There is merit to the cause of petitioners. If the Secretary of Justice would find their Appeal meritorious, the Provincial Prosecutor would be directed to upgrade the Information to Murder and extreme prejudice if not gross injustice would thereby have been avoided. 3 Consequently, the undersigned counsel interpose no objection to the issuance of a writ of prohibition enjoining respondent Judge from holding further proceedings in Criminal Case No. 96-1667-M, particularly in holding the arraignment of the accused, pending resolution of the Appeal with the Secretary of Justice. The YABUTs opposed[44] petitioners Manifestation and Motion dated 1 July 1996 because they had already been arraigned and, therefore, would be placed in double jeopardy; and that the public prosecutor -- not the private prosecutor -- had control of the prosecution of the case. In his letter[45] dated 1 July 1996 addressed to the Provincial Prosecutor of Pampanga, the Secretary of Justice set aside his order to amend the information from homicide to murder considering that the appeal was rendered moot and academic by the arraignment of the accused for homicide and their having entered their pleas of not guilty. The Secretary stated: Considering that Santiago Yabut, Servillano Yabut and Martin Yabut had already been arraigned on May 20, 1996 and had pleaded not guilty to the charge of homicide, as shown by a copy of the court order dated May 20, 1996, the petition for review insofar as the respondents-Yabut are concerned has been rendered moot and academic. However, the Secretary reiterated that Fortunato Mallari should be included in the information for homicide. On 30 July 1996, Public Prosecutor Jaime Bustos filed a Motion for Leave to Amend Information and to Admit Amended Information.[46] The Amended Information[47] merely impleaded Fortunato Mallari as one of the accused.

In his Order[48] of 1 August 1996, Judge Villon denied petitioners motion to set aside arraignment, citing Section 4, DOJ Department Order No. 223, and the letter of the Secretary of Justice of 1 July 1996. Petitioners forthwith moved for reconsideration[49] of the order, arguing that the Motion to Defer the Proceedings filed by petitioners was meritorious and did not violate the accuseds right to speedy trial; and that the DOJ had ruled that the proper offense to be charged was murder and did not reverse such finding. Petitioners also cited the Solicitor Generals stand[50] in CA-G.R. SP No. 40393 that holding accuseds arraignment in abeyance was proper under the circumstances. Finally, petitioners contended that in proceeding with the arraignment despite knowledge of a petition for prohibition pending before the Court of Appeals, the trial court violated Section 3(d), Rule 71 of the Rules of Court on indirect contempt. The YABUTs opposed the motion on the ground that it raised no argument which had not yet been resolved.[51] On 3 September 1996, petitioners filed a Motion to Defer Arraignment of Accused Fortunato Mallari,[52] which the trial court granted in view of petitioners motion for reconsideration of the courts order denying petitioners motion to set aside private respondents arraignment.[53] As expected, Mallari moved to reconsider the trial courts order and clamored for consistency in the trial courts rulings.[54] In an order[55] dated 15 October 1996, Judge Villon denied reconsideration of the order denying petitioners motion to set aside arraignment, citing the YABUTs right to a speedy trial and explaining that the prosecution of an offense should be under the control of the public prosecutor, whereas petitioners did not obtain the conformity of the prosecutor before they filed various motions to defer proceedings. Considering said order, Judge Villon deemed accused Mallaris motion for reconsideration moot and academic. [56] On 16 October 1996, the Court of Appeals promulgated its decision[57] in CA-G.R. SP No. 40393 dismissing the petition therein for having become moot and academic in view of Judge Rouras voluntary inhibition, the arraignment of the YABUTs and the dismissal, by the Secretary of Justice, of petitioners appeal as it had been mooted by said arraignment. Judge Villon was later detailed to Branch 24 of the Regional Trial Court of Manila, and Judge Roura was ordered by the Supreme Court to preside over cases pending in Branch 54 of the Regional Trial Court of Macabebe, Pampanga, which was previously presided over by Judge Villon.[58] Judge Roura informed the Office of the Court Administrator and this Court that he had already inhibited himself from hearing Criminal Case No. 96-1667(M).[59] On 28 December 1996, petitioners filed the instant Petition forCertiorari/Prohibition and Mandamus. They urge this Court to reverse the order of respondent Judge denying their Motion to Set Aside Arraignment; set aside arraignment of private respondents; order that no further action be taken by any court in Criminal Case No. 96-1667(M) until this petition is resolved; and order respondents Secretary of Justice and the prosecutors concerned to amend the information from homicide to murder.

Petitioners insist that the killing of PO3 Virgilio Dimatulac was attended by treachery since private respondents tricked the victim into coming out of his house and then shot him while he was going down the stairs. There was, petitioners claim, an orchestrated effort on the part of [private respondents] to manipulate the rules on administrative appeals with the end in view of evading prosecution for the [nonbailable] offense of murder, as shown by the following events or circumstances: (1) Assistant Provincial Prosecutor Alfonso-Flores downgraded the nature of the crime committed to homicide, a bailable offense, on strength of a motion for reinvestigation filed by the YABUTs who had not yet been arrested. (2) Respondent Mayor and his companions returned to Minalin after the killing and went into hiding for four (4) months until the offense charged was downgraded. (3) The information for homicide was nevertheless filed despite notice to the Office of the Provincial Prosecutor of the appeal filed with the Secretary of Justice and request to defer any action on the case. (4) The Office of the Public Prosecutor of Pampanga disallowed the private prosecutor from further participating in the case. (5) Judge Roura denied the motion to defer proceedings and declared in open court that there was no prima facie case for murder, notwithstanding the pendency of petitioners appeal with respondent Secretary of Justice. (6) Even before receipt by petitioners of Judge Rouras order inhibiting himself and the order regarding the transfer of the case to Branch 54, public respondent Judge Villon set the case for arraignment and, without notice to petitioners, forthwith arraigned the accused on the information for homicide on 20 May 1996, despite the pendency of the petition for prohibition before the Court of Appeals and of the appeal before the DOJ. (7) The Pampanga Provincial Prosecutors Office did not object to the arraignment nor take any action to prevent further proceedings on the case despite knowledge of the pendency of the appeal. (8) The Provincial Prosecutor did not comply with the resolution of 7 June 1996 of the Secretary of Justice directing the amendment of the information to charge the crime of murder. Petitioners argue that in light of Roberts, Jr. v. Court of Appeals,[60] respondent Judge acted in excess of his jurisdiction in proceeding with private respondents' arraignment for homicide and denying petitioners' motion to set aside arraignment. Moreover, although respondent Judge Villon was not the respondent in CA-G.R. SP No. 40393, he should have deferred the proceedings just the same as the very issue in said case was whether or not the RTC could proceed with the arraignment despite the pending review of the case by respondent Secretary of Justice. Further, Judge

Villon unjustly invoked private respondents right to a speedy trial, after a lapse of barely three (3) months from the filing of the information on 23 February 1996; overlooked that private respondents were estopped from invoking said right as they went into hiding after the killing, only to resurface when the charge was reduced to homicide; and failed to detect the Provincial Prosecutor's bias in favor of private respondents. Judge Villon should have been more circumspect as he knew that by proceeding with the arraignment, the appeal with the DOJ would be rendered technically nugatory. Finally, petitioners submit that the DOJ rule prohibiting appeals from resolutions of prosecutors to the Secretary of Justice once the accused had already been arraigned applies only to instances where the appellants are the accused, since by submitting to arraignment, they voluntarily abandon their appeal. In their comment, private respondents contend that no sufficient legal justification exists to set aside private respondents' arraignment, it having already been reset twice from 12 April 1996 to 3 May 1996, due to petitioners pending appeal with the DOJ; and from 3 May 1996 to 20 May 1996, due to the transfer of this case to Branch 54. Moreover, as of the latter date, the DOJ had not yet resolved petitioners appeal and the DOJ did not request that arraignment be held in abeyance, despite the fact that petitioners appeal had been filed as early as 23 February 1996, at least 86 days prior to private respondents arraignment. They point out that petitioners did not move to reconsider the RTC's 26 March 1996 denial of the Motion to Defer, opting instead for Judge Rouras recusal and recourse to the Court of Appeals, and as no restraining order was issued by the Court of Appeals, it was but proper for respondent Judge to proceed with the arraignment of private respondents, to which the public and private prosecutors did not object. Private respondents further argue that the decision of respondent Secretary, involving as it did the exercise of discretionary powers, is not subject to judicial review. Under the principle of separation of powers, petitioners' recourse should have been to the President. While as regards petitioners plea that the Secretary be compelled to amend the information from homicide to murder, private respondents submit that mandamus does not lie, as the determination as to what offense was committed is a prerogative of the DOJ, subject only to the control of the President. As regards DOJ Department Order No. 223, private respondents theorize that appeal by complainants is allowed only if the complaint is dismissed by the prosecutor and not when there is a finding of probable cause, in which case, only the accused can appeal. Hence, petitioners appeal was improper. Finally, private respondents stress the fact that petitioners never appealed the withdrawal by the public prosecutor of the private prosecutor's authority to handle the case. In its comment for the public respondents, the Office of the Solicitor General (OSG) prays that the petition be denied because: (a) in accordance with Section 4 of DOJ

Order No. 223, upon arraignment of the accused, the appeal to the Secretary of Justice shall be dismissed motu proprio; (b) the filing of the information for homicide was in compliance with the directive under Section 4(2), D.O. No. 223, i.e., an appeal or motion for reinvestigation from a resolution finding probable cause shall not hold the filing of the information in court; (c) the trial court even accommodated petitioners by initially deferring arraignment pending resolution by the Court of Appeals of the petition for prohibition, and since said Court did not issue any restraining order, arraignment was properly had; and (d) reliance on Roberts is misplaced, as there, accused Roberts and others had not been arraigned and respondent Judge had ordered the indefinite postponement of the arraignment pending resolution of their petitions before the Court of Appeals and the Supreme Court. We now consider the issues enumerated at the outset of thisponencia. Plainly, the proceedings below were replete with procedural irregularities which lead us to conclude that something had gone awry in the Office of the Provincial Prosecutor of Pampanga resulting in manifest advantage to the accused, more particularly the YABUTs, and grave prejudice to the State and to private complainants, herein petitioners. First, warrants for the arrest of the YABUTs were issued by the MCTC, with no bail recommended for their temporary liberty. However, for one reason or another undisclosed in the record, the YABUTs were not arrested; neither did they surrender. Hence, they were never brought into the custody of the law. Yet, Asst. Provincial Fiscal Alfonso-Reyes, either motu proprioor upon motion of the YABUTs, conducted a reinvestigation. Since said accused were at large, Alfonso-Reyes should not have done so. While it may be true that under the second paragraph of Section 5, Rule 112 of the Rules of Court, the provincial prosecutor may disagree with the findings of the judge who conducted the preliminary investigation, as here, this difference of opinion must be on the basis of the review of the record and evidence transmitted by the judge. Were that all she did, as she had no other option under the circumstances, she was without any other choice but to sustain the MCTC since the YABUTs and all other accused, except Francisco Yambao, waived the filing of their counter-affidavits. Then, further stretching her magnanimity in favor of the accused, Alfonso-Reyes allowed the YABUTs to submit their counter-affidavits without first demanding that they surrender because of the standing warrants of arrest against them. In short, Alfonso-Reyes allowed the YABUTs to make a mockery of the law in order that they gain their provisional liberty pending trial and be charged with the lesser offense of homicide. Second, Alfonso-Reyes recommended a bond of only P20,000.00 for the YABUTs and co-accused Danny, despite the fact that they were charged with homicide and they were, at the time, fugitives from justice for having avoided service of the warrant of arrest issued by the MCTC and having failed to voluntarily surrender.

Third, Alfonso-Reyes was fully aware of the private prosecutions appeal to the DOJ from her resolution. She could not have been ignorant of the fact that the appeal vigorously assailed her finding that there was no qualifying circumstance attending the killing, and that the private prosecution had convincing arguments to support the appeal. The subsequent resolution of the Secretary of Justice confirmed the correctness of the private prosecutions stand and exposed the blatant errors of Alfonso-Reyes. Fourth, despite the pendency of the appeal, Alfonso-Reyes filed the Information for homicide on 28 February 1996. It is interesting to note that while the information was dated 29 January 1996, it was approved by the Provincial Prosecutor only on 27 February 1996. This simply means that the Office of the Prosecutor was not, initially, in a hurry to file the Information. No undue prejudice could have been caused to the YABUTs if it were filed even later for the YABUTs were still at large; in fact, they filed their bonds of P20,000.00 each only after the filing of the Information. If Alfonso-Flores was extremely generous to the YABUTs, no compelling reason existed why she could not afford the offended parties the same courtesy by at least waiting for instructions from the Secretary of Justice in view of the appeal, if she were unwilling to voluntarily ask the latter for instructions. Clearly, under the circumstances, the latter course of action would have been the most prudent thing to do. Fifth, as if to show further bias in favor of the YABUTs, the Office of the Provincial Prosecutor of Pampanga did not even bother to motu proprio inform the trial court that the private prosecution had appealed from the resolution of Alfonso-Flores and had sought, with all the vigour it could muster, the filing of an information for murder, as found by the MCTC and established by the evidence before it. Unsatisfied with what had been done so far to accommodate the YABUTs, the Office of the Provincial Prosecutor did not even have the decency to agree to defer arraignment despite its continuing knowledge of the pendency of the appeal. This amounted to defiance of the DOJs power of control and supervision over prosecutors, a matter which we shall later elaborate on. Moreover, in an unprecedented move, the trial prosecutor, Olimpio Datu, had the temerity, if not arrogance, to announce that he will no longer allow the private prosecutor to participate or handle the prosecution of [the] case simply because the private prosecution had asked for the inhibition of Judge Roura. Said prosecutor forgot that since the offended parties here had not waived the civil action nor expressly reserved their right to institute it separately from the criminal action, then they had the right to intervene in the criminal case pursuant to Section 16 of Rule 110 of the Rules of Court. It is undebatable that petitioners had the right to appeal to the DOJ from the resolution of Alfonso-Flores. The last paragraph of Section 4 of Rule 112 of the Rules of Court provides:

If upon petition by a proper party, the Secretary of Justice reverses the resolution of the provincial or city fiscal or chief state prosecutor, he shall direct the fiscal concerned to file the corresponding information without conducting another preliminary investigation or to dismiss or move for the dismissal of the complaint or information. It is clear from the above, that the proper party referred to therein could be either the offended party or the accused. More importantly, an appeal to the DOJ is an invocation of the Secretarys power of control over prosecutors. Thus, inLedesma v. Court of Appeals,[61] we emphatically held: Decisions or resolutions of prosecutors are subject to appeal to the secretary of justice who, under the Revised Administrative Code,[62] exercises the power of direct control and supervision over said prosecutors; and who may thus affirm, nullify, reverse or modify their rulings. Section 39, Chapter 8, Book IV in relation to Section[s] 5, 8, and 9, Chapter 2, Title III of the Code gives the secretary of justice supervision and control over the Office of the Chief Prosecutor and the Provincial and City Prosecution Offices. The scope of his power of supervision and control is delineated in Section 38, paragraph 1, Chapter 7, Book IV of the Code: (1) Supervision and Control. -- Supervision and control shall include authority to act directly whenever a specific function is entrusted by law or regulation to a subordinate; direct the performance of duty; restrain the commission of acts; review, approve, reverse or modify acts and decisions of subordinate officials or units; x x x x. Supplementing the aforequoted provisions are Section 3 of R.A. 3783 and Section 37 of Act 4007, which read: Section 3. x x x x The Chief State Prosecutor, the Assistant Chief State Prosecutors, the Senior State Prosecutors, and the State Prosecutors shall x x x perform such other duties as may be assigned to them by the Secretary of Justice in the interest of public service. xxx xxx xxx

Section 37. The provisions of the existing law to the contrary notwithstanding, whenever a specific power, authority, duty, function, or activity is entrusted to a chief of bureau, office, division or service, the same shall be understood as also conferred upon the proper Department Head who shall have authority to act directly in pursuance thereof, or to review, modify, or revoke any decision or action of said chief of bureau, office, division or service.

Supervision and control of a department head over his subordinates have been defined in administrative law as follows: In administrative law, supervision means overseeing or the power or authority of an officer to see that subordinate officers perform their duties. If the latter fail or neglect to fulfill them, the former may take such action or step as prescribed by law to make them perform such duties. Control, on the other hand, means the power of an officer to alter or modify or nullify or set aside what a subordinate officer had done in the performance of his duties and to substitute the judgment of the former for that of the latter. Review as an act of supervision and control by the justice secretary over the fiscals and prosecutors finds basis in the doctrine of exhaustion of administrative remedies which holds that mistakes, abuses or negligence committed in the initial steps of an administrative activity or by an administrative agency should be corrected by higher administrative authorities, and not directly by courts. As a rule, only after administrative remedies are exhausted may judicial recourse be allowed. DOJ Order No. 223 of 30 June 1993 recognizes the right of both the offended parties and the accused to appeal from resolutions in preliminary investigations or reinvestigations, as provided for in Section 1 and Section 4, respectively. Section 1 thereof provides, thus: SECTION 1. What May Be Appealed. -- Only resolutions of the Chief State Prosecutor/Regional State Prosecutor/Provincial or City Prosecutor dismissing a criminal complaint may be the subject of an appeal to the Secretary of Justice except as otherwise provided in Section 4 hereof. While the section speaks of resolutions dismissing a criminal complaint, petitioners herein were not barred from appealing from the resolution holding that only homicide was committed, considering that their complaint was for murder. By holding that only homicide was committed, the Provincial Prosecutors Office of Pampanga effectively dismissed the complaint for murder. Accordingly, petitioners could file an appeal under said Section 1. To rule otherwise would be to forever bar redress of a valid grievance, especially where the investigating prosecutor, as in this case, demonstrated what unquestionably appeared to be unmitigated bias in favor of the accused. Section 1 is not to be literally applied in the sense that appeals by the offended parties are allowed only in cases of dismissal of the complaint, otherwise the last paragraph of Section 4, Rule 112, Rules of Court would be meaningless. We cannot accept the view of the Office of the Solicitor General and private respondents that Section 4 of DOJ Department Order No. 223 is the controlling rule; hence, pursuant to the second paragraph thereof, the appeal of petitioners did not hold the filing of the information. As stated above, Section 4 applies even to appeals by the respondents or accused. The provision reads:

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 a 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 proprio 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. (underscoring supplied) The underlined portion indisputably shows that the section refers to appeals by respondents or accused. So we held inMarcelo v. Court of Appeals[63] that nothing in the ruling inCrespo v. Mogul,[64] reiterated in Roberts v. Court of Appeals,[65] forecloses the power or authority of the Secretary of Justice to review resolutions of his subordinates in criminal cases despite an information already having been filed in court. The Secretary of Justice is only enjoined to refrain, as far as practicable, from entertaining a petition for review or appeal from the action of the prosecutor once a complaint or information is filed in court. In any case, the grant of a motion to dismiss, which the prosecution may file after the Secretary of Justice reverses an appealed resolution, is subject to the discretion of the court. In Roberts we went further by saying that Crespo could not have foreclosed said power or authority of the Secretary of Justice without doing violence to, or repealing, the last paragraph of Section 4, Rule 112 of the Rules of Court which is quoted above. Indubitably then, there was, on the part of the public prosecution, indecent haste in the filing of the information for homicide, depriving the State and the offended parties of due process. As to the second issue, we likewise hold that Judge Roura acted with grave abuse of discretion when, in his order of 26 March 1996,[66] he deferred resolution on the motion for a hold departure order until such time that all the accused who are out on bail are arraigned and denied the motion to defer proceedings for the reason that the private prosecution has not shown any indication that [the] appeal was given due course by the Secretary of Justice. Neither rhyme nor reason or even logic, supports the ground for the deferment of the first motion. Precisely, immediate action thereon was called for as the accused were out on bail and, perforce, had all the opportunity to leave the country if they wanted to. To hold that arraignment is a prerequisite to the issuance of a hold departure order could obviously defeat the purpose of said order. As to the second motion, Judge Roura was fully aware of the pendency of petitioners appeal with the DOJ, which was filed as early as 23 February 1996. In fact, he must have taken that into consideration when he set arraignment of the accused only on 12 April 1996, and on that date, after denying petitioners motion to reconsider the denial of the motion to defer proceedings, he further reset arraignment to 3 May 1996and gave petitioners ten (10) days within which to file a petition for certiorari to question his denial of the motion to defer and of the order denying the reconsideration. In any event, the

better part of wisdom suggested that, at the very least, he should have asked petitioners as regards the status of the appeal or warned them that if the DOJ would not decide the appeal within a certain period, then arraignment would proceed. Petitioners did in fact file the petition with the Court of Appeals on 19 April 1996 and, at the same time, moved to inhibit Judge Roura. These twin moves prompted Judge Roura to voluntarily inhibit himself from the case on 29 April 1996[67] and to transfer the case to the branch presided by public respondent Judge Villon. The latter received the record of the case on 30 April 1996. From that time on, however, the offended parties did not receive any better deal. Acting with deliberate dispatch, Judge Villon issued an order on 3 May 1996 setting arraignment of the accused on 20 May 1996. If Judge Villon only perused the record of the case with due diligence, as should be done by anyone who has just taken over a new case, he could not have helped but notice: (a) the motion to defer further proceedings; (2) the order of Judge Roura giving petitioners ten days within which to file a petition with the Court of Appeals; (3) the fact of the filing of such petition in CA-G.R. SP No. 40393; (4) the resolution of the Court of Appeals directing respondents to comment on the petition and show cause why the application for a writ of preliminary injunction should not be granted and deferring resolution of the application for a temporary restraining order until after the required comment was filed, which indicated a prima facie showing of merit; (5) the motion to inhibit Judge Roura precisely because of his prejudgment that the crime committed was merely homicide; (6) Judge Rouras subsequent inhibition; (7) various pieces of documentary evidence submitted by petitioners on 30 April 1996 supporting a charge of murder, not homicide; and (8) most importantly, the pending appeal with the DOJ. All the foregoing demanded from any impartial mind, especially that of Judge Villon, a cautious attitude as these were unmistakable indicia of the probability of a miscarriage of justice should arraignment be precipitately held. However, Judge Villon cursorily ignored all this. While it may be true that he was not bound to await the DOJs resolution of the appeal, as he had, procedurally speaking, complete control over the case and any disposition thereof rested on his sound discretion,[68] his judicial instinct should have led him to peruse the documents submitted on 30 April 1996 and to initially determine, for his own enlightenment with serving the ends of justice as the ultimate goal, if indeed murder was the offense committed; or, he could have directed the private prosecutor to secure a resolution on the appeal within a specified time. Given the totality of circumstances, Judge Villon should have heeded our statement in Marcelo[69] that prudence, if not wisdom, or at least, respect for the authority of the prosecution agency, dictated that he should have waited for the resolution of the appeal then pending before the DOJ. All told, Judge Villon should not have merely acquiesced to the findings of the public prosecutor. We do not then hesitate to rule that Judge Villon committed grave abuse of discretion in rushing the arraignment of the YABUTs on the assailed information for homicide. Again, the State and the offended parties were deprived of due process.

Up to the level then of Judge Villon, two pillars of the criminal justice system failed in this case to function in a manner consistent with the principle of accountability inherent in the public trust character of a public office. Judges Roura and Villon and prosecutors Alfonso-Flores and Datu need be reminded that it is in the public interest that every crime should be punished[70] and judges and prosecutors play a crucial role in this regard for theirs is the delicate duty to see justice done,i.e., not to allow the guilty to escape nor the innocent to suffer.[71] Prosecutors must never forget that, in the language of Suarez v. Platon,[72] they are the representatives not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win every case but that justice be done. As such, they are in a peculiar and every definite sense the servants of the law, whose two-fold aim is that guilt shall not escape or innocence suffer. Prosecutors are charged with the defense of the community aggrieved by a crime, and are expected to prosecute the public action with such zeal and vigor as if they were the ones personally aggrieved, but at all times cautious that they refrain from improper methods designed to secure a wrongful conviction.[73] With them lies the duty to lay before the court the pertinent facts at the judges disposal with strict attention to punctilios, thereby clarifying contradictions and sealing all gaps in the evidence, with a view to erasing all doubt from the courts mind as to the accuseds innocence or guilt. The judge, on the other hand, should always be imbued with a high sense of duty and responsibility in the discharge of his obligation to promptly and properly administer justice.[74] He must view himself as a priest, for the administration of justice is akin to a religious crusade. Thus, exerting the same devotion as a priest in the performance of the most sacred ceremonies of religious liturgy, the judge must render service with impartiality commensurate with the public trust and confidence reposed in him.[75] Although the determination of a criminal case before a judge lies within his exclusive jurisdiction and competence,[76] his discretion is not unfettered, but rather must be exercised within reasonable confines.[77] The judges action must not impair the substantial rights of the accused, nor the right of the State and offended party to due process of law.[78] Indeed, for justice to prevail, the scales must balance; justice is not to be dispensed for the accused alone. The interests of society and the offended parties which have been wronged must be equally considered. Verily, a verdict of conviction is not necessarily a denial of justice; and an acquittal is not necessarily a triumph of justice, for, to the society offended and the party wronged, it could also mean injustice.[79] Justice then must be rendered even-handedly to both the accused, on one hand, and the State and offended party, on the other. In this case, the abuse of discretion on the part of the public prosecution and Judges Roura and Villon was gross, grave and palpable, denying the State and the offended

parties their day in court, or in a constitutional sense, due process. As to said judges, such amounted to lack or excess of jurisdiction, or that their court was ousted of the jurisdiction in respect thereto, thereby nullifying as having been done without jurisdiction, the denial of the motion to defer further hearings, the denial of the motion to reconsider such denial, the arraignment of the YABUTs and their plea of not guilty. These lapses by both the judges and prosecutors concerned cannot be taken lightly. We must remedy the situation before the onset of any irreversible effects. We thus have no other recourse, for as Chief Justice Claudio Teehankee pronounced inGalman v. Sandiganbayan:[80] The Supreme Court cannot permit such a sham trial and verdict and travesty of justice to stand unrectified. The courts of the land under its aegis are courts of law and justice and equity. They would have no reason to exist if they were allowed to be used as mere tools of injustice, deception and duplicity to subvert and suppress the truth, instead of repositories of judicial power whose judges are sworn and committed to render impartial justice to all alike who seek the enforcement or protection of a right or the prevention or redress of a wrong, without fear or favor and removed from the pressures of politics and prejudice. We remind all members of the pillars of the criminal justice system that theirs is not a mere ministerial task to process each accused in and out of prison, but a noble duty to preserve our democratic society under a rule of law. Anent the third issue, it was certainly grave error for the DOJ to reconsider its 7 June 1996 resolution, holding that murder was committed and directing the Provincial Prosecutor to accordingly amend the information, solely on the basis of the information that the YABUTs had already been arraigned. In so doing, the DOJ relinquished its power of control and supervision over the Provincial Prosecutor and the Assistant Provincial Prosecutors of Pampanga; and meekly surrendered to the latters inappropriate conduct or even hostile attitude, which amounted to neglect of duty or conduct prejudicial to the best interest of the service, as well as to the undue haste of Judge Roura and Villon in respect of the arraignment of the YABUTs. The sins of omission or commission of said prosecutors and judges resulted, in light of the finding of the DOJ that the crime committed was murder, in unwarranted benefit to the YABUTs and gross prejudice to the State and the offended parties. The DOJ should have courageously exercised its power of control by taking bolder steps to rectify the shocking mistakes so far committed and, in the final analysis, to prevent further injustice and fully serve the ends of justice. The DOJ could have, even if belatedly, joined cause with petitioners to set aside arraignment. Further, in the exercise of its disciplinary powers over its personnel, the DOJ could have directed the public prosecutors concerned to show cause why no disciplinary action should be taken against them for neglect of duty or conduct prejudicial to the best interest of the service in not, inter alia, even asking the trial court to defer arraignment in view of the pendency of the appeal, informing the DOJ, from time to

time, of the status of the case, and, insofar as prosecutor Datu was concerned, in disallowing the private prosecutor from further participating in the case. Finally, the DOJ should have further inquired into the vicissitudes of the case below to determine the regularity of arraignment, considering that the appeal was received by the DOJ as early as 23 February 1996. We then rule that the equally hasty motu proprioreconsideration of the 7 June 1996 resolution of the DOJ was attended with grave abuse of discretion. It is settled that when the State is deprived of due process in a criminal case by reason of grave abuse of discretion on the part of the trial court, the acquittal of the accused[81] or the dismissal of the case[82] is void, hence double jeopardy cannot be invoked by the accused. If this is so in those cases, so must it be where the arraignment and plea of not guilty are void, as in this case as above discussed. WHEREFORE, the petition is GRANTED. The orders of Judge Reynaldo Roura of 26 March 1996 denying the Motion to Defer Proceedings and of 12 April 1996 denying the motion to reconsider the denial of said Motion to Defer Proceedings, and the orders of respondent Judge Sesinando Villon of 3 May 1996 resetting the arraignment to 20 May 1998 and of 15 October 1996 denying the Motion to Set Aside Arraignment in Criminal Case No. 96-1667(M) are declared VOID and SET ASIDE. The arraignment of private respondents Mayor Santiago Yabut, Servillano Yabut and Martin Yabut and their separate pleas of not guilty are likewise declared VOID and SET ASIDE. Furthermore, the order of public respondent Secretary of Justice of 1 July 1996 is SET ASIDE and his order of 7 June 1996 REINSTATED. The Office of the Provincial Prosecutor of Pampanga is DIRECTED to comply with the order (letter) of the Secretary of Justice of 7 June 1996 by forthwith filing with the trial court the amended information for murder. Thereafter the trial court shall proceed in said case with all reasonable dispatch. No pronouncement as to costs. SO ORDERED.