EMILIANO A. FRANCISCO and HARRY B. BERNARDINO, petitioners, vs.

THE HONORABLE
COURT OF APPEALS and THE PEOPLE OF THE PHILIPPINES, respondents.
G.R. No. L-45674 May 30, 1983
DE CASTRO, J.:
Facts:
On February 6, 1966, Dr. Patrocinio Angeles, who was then the Director of the Morong
Emergency Hospital, filed a case for intriguing against honor allegedly committed on December
26, 1965 by Dr. Emiliano and Atty. Harry Bernardino. On May 3, 1966, the Provincial Fiscal filed
an information against Francisco and Bernardino with the CFI of Rizal of the crime of grave oral
defamation. Later, upon order of the court, the information was amended by adding statements
allegedly uttered by the two accused constituting the crime of slander.
On Feb. 1, 1973, the trial court convicted Francisco and Bernardino of the crime of grave
oral defamation and sentenced each of them the penalty of arresto mayor and was made to pay
the complainant P10,000. Upon appeal in the Court of Appeals, the trial court's decision was
modified finding the accused guilty of simple slander. Bernardino passed away while this petition
was instituted in the Supreme Court. Francisco, then argues that since the CA had found that the
offense committed was the lesser offense of simple slander, which under Art. 90 of the RPC,
prescribes in two months, the CA should have dismissed the case.
Further, Francisco claims that the CA should have acquitted him on the ground that the said
crime had already prescribed as per evidence presented, the alleged defamatory remarks were
committed on December 26, 1965, while the information charged against him was filed more than
four months later.
The Solicitor General, however, contends that "for the purpose of determining the proper
prescriptive period, what should be considered is the nature of the offense charged in the
information which is grave oral defamation, not the crime committed by the accused, as said
crime was found by the Court to constitute only simple slander". Since the prescription for grave
oral defamation is six months, the crime has not yet prescribed when it the information was filed.
Moreover, the Solicitor General argues that the filing of the complaint in the Fiscal's office
interrupts the period of prescription. Only 39 days had passed from the time the offense was
allegedly committed to the day of the filing of the complaint.
Issues: 1. Whether or not the crime of simple slander found by the CA to be the offense
committed by the petitioners has prescribed.
2. Whether or not the filing of a complaint in the Fiscal's office interrupts the prescription of an
offense.
Held.
1. Yes. An accused cannot be convicted for the lesser offense necessarily included in the crime
charged if at the time of the filing of the information, the lesser offense has already prescribed. To
hold otherwise, according to the Court, would be to sanction a circumvention of the law on
prescription by the simple expedient of accusing the defendant of the graver offense.

2. Yes. Prescription is interrupted with the filing of the case even if the court is without jurisdiction,
even if it be merely for purposes of preliminary examination or investigation. Thus, the filing of the
complaint in the Fiscal's office interrupts the period of prescription.