Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. L-35825 February 20, 1989

CORA LEGADOS, represented by ROSA LEGADOS, and HON. JESUS ANGELES, petitioners
vs.
HON. DOROTEO DE GUZMAN, Judge, CFI, Br. II, Zamboanga, VILMOR ICAO, represented by his
mother, SOFIA L. ICAO, respondents.

Lacaya & Tabiliran Law Office for petitioners.

Felipe G. Tac-an for respondents.

NARVASA, J.:

Section 32 of Batas Pambansa Bilang 129, effective August 14, 1981, grants to Metropolitan Trial
Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts 1 "(e)xclusive original jurisdiction
over all offenses punishable with imprisonment of not exceeding four years and two months, or a
fine of not more than four thousand pesos, or both such fine and imprisonment, regardless of other
imposable accessory or other penalties, including the civil liability arising from such offenses or
predicated thereon, irrespective of kind, nature, value, or amount thereof. 2

The proviso altered and superseded the long standing doctrine first laid down in a 1911 case 3 that
an inferior court had no jurisdiction over the crime of simple seduction — although the penalty
imposed is arresto mayor — because conviction thereof carried with it the liability imposed by Article
345 of the Revised Penal Code to acknowledge and give Support to the offspring. The doctrine was
made applicable whatever the peculiar circumstances of the offender and offended party might be, it
not being permitted, upon considerations of consistency and orderliness, "to speculate on whether or
not an offspring may still arise from the crime, whether or not the complainant or the accused may
be sterile or incapable of procreation, whether or not the complaint was already pregnant by another
man when the crime was committed and various other factual considerations before the jurisdiction
may be fixed. 4

In the case at bar, long before the passage of B.P. Big. 129, 5 a complaint for simple seduction 6 was
filed with the then City Court of Dipolog (Branch 11) 7 against Vilmor Icao. The complaint was
presented by the offended girl, Cora Legados, represented by her mother, Rosa, and was
subsequently made the basis of an information filed by the First Assistant City Fiscal. 8 After entering
a plea of not guilty on arraignment, Icao moved to quash the information on the ground that the City
Court had no jurisdiction to try the offense, and the fiscal who filed the information bad no authority
to do so. The Court denied the motion and scheduled the case for trial on the merits. Icao thereupon
instituted an action of prohibition 9 with the then Court of First Instance of Zamboanga City 10 which,
in due course, granted the petition and permanently enjoined the proceedings in the City Court. It is
this Order which is now assailed in this Court as having been rendered with grave abuse of
discretion amounting to lack of jurisdiction.

1
The writ of prohibition was, of course, correctly issued by the respondent Judge, being consistent
with the doctrine obtaining at the time, i.e., that an inferior court had no jurisdiction over the crime of
simple seduction. But, as already pointed out, the doctrine has since been changed. Now, the
offense is explicitly declared by law to be within the exclusive original jurisdiction, no longer of Courts
of First Instance (since abolished and replaced by Regional Trial Courts), but of Metropolitan Trial
Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts.

WHEREFORE, the disputed Order of respondent Judge of October 9, 1972 is SET ASIDE, and the
case is REMANDED to the Municipal Trial Court of Dipolog City (which replaced the City Court) for
further proceedings. This decision is immediately executory. No costs.

Cruz, Gancayco, Griño-Aquino and Medialdea, JJ., concur.

Footnotes

1 "Except in cases falling within the exclusive original jurisdiction of Regional Trial
Courts and of the Sandiganbayan."

2 Italics supplied.

3 U.S. v. Bernardo, 19 Phil. 265-1 see also, Luansing v. People, 27 SCRA 308
(1969), People v. Buissan, 105 SCRA 552 (1981).

4 Dioquino v. Cruz, Jr., 116 SCRA 457 (1982).

5 On March 6, 1972, to be exact.

6 Docketed as Criminal Case No. 19189.

7 Then presided over by Hon. Jesus O. Angeles.

8 Fiscal Gaquipo La. Adriatico.

9 Docketed as Sp. Civil Case No. 2319.

10 Presided over by herein respondent, Hon. Doroteo de Guzman.

2
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 102342 July 3, 1992

LUZ M. ZALDIVIA, petitioner,

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

CRUZ, J.:

The Court is asked to determine the applicable law specifying the prescriptive period for violations of municipal ordinances.

The petitioner is charged with quarrying for commercial purposes without a mayor's permit in violation of Ordinance No. 2, Series of 1988, of
the Municipality of Rodriguez, in the Province of Rizal.

The offense was allegedly committed on May 11, 1990.1 The referral-complaint of the police was received by the Office of the Provincial
Prosecutor of Rizal on May 30, 1990. 2 The corresponding information was filed with the Municipal Trial Court of Rodriguez on October 2,
1990. 3

The petitioner moved to quash the information on the ground that the crime had prescribed, but the motion was denied. On appeal to the
Regional Trial Court of Rizal, the denial was sustained by the respondent judge. 4

In the present petition for review on certiorari, the petitioner first argues that the charge against her is governed by the following provisions of
the Rule on Summary Procedure:

Sec. 1. Scope — This rule shall govern the procedure in the Metropolitan Trial Courts, the Municipal Trial Courts, and
the Municipal Circuit Trial Courts in the following cases:

xxx xxx xxx

B. Criminal Cases:

1. Violations of traffic laws, rules and regulations;

2. Violations of rental law;

3. Violations of municipal or city ordinances;

4. All other criminal cases where the penalty prescribed by law for the offenses charged does not exceed six months
imprisonment, or a fine of one thousand pesos (P1,000.00), or both, irrespective of other imposable penalties,
accessory or otherwise, or of the civil liability arising therefrom. . . . (Emphasis supplied.)

xxx xxx xxx

Sec. 9. How commenced. — The prosecution of criminal cases falling within the scope of this Rule shall be either by
complaint or by information filed directly in court without need of a prior preliminary examination or preliminary
investigation: Provided, however, That in Metropolitan Manila and chartered cities, such cases shall be commenced
only by information; Provided, further, That when the offense cannot be prosecuted de oficio, the corresponding
complaint shall be signed and sworn to before the fiscal by the offended party.

She then invokes Act. No. 3326, as amended, entitled "An Act to Establish Periods of Prescription for Violations Penalized by Special Acts
and Municipal Ordinances and to Provide When Prescription Shall Begin to Run," reading as follows:

3
 Sec. 1. Violations penalized by special acts shall, unless provided in such acts, prescribe in accordance with the
following rules: . . . Violations penalized by municipal ordinances shall prescribe after two months.

Sec. 2. Prescription shall begin to run from the day of the commission of the violation of the law, and if the same be not
known at the time, from the discovery thereof and the institution of judicial proceedings for its investigation and
punishment.

The prescription shall be interrupted when proceedings are instituted against the guilty person, and shall begin to run
again if the proceedings are dismissed for reasons not constituting jeopardy.

Sec. 3. For the purposes of this Act, special acts shall be acts defining and penalizing violations of law not included in
the Penal Code. (Emphasis supplied)

Her conclusion is that as the information was filed way beyond the
two-month statutory period from the date of the alleged commission of the offense, the charge against her should have been dismissed on
the ground of prescription.

For its part, the prosecution contends that the prescriptive period was suspended upon the filing of the complaint against her with the Office
of the Provincial Prosecutor. Agreeing with the respondent judge, the Solicitor General also invokes Section 1, Rule 110 of the 1985 Rules
on Criminal Procedure, providing as follows:

Sec. 1. How Instituted — For offenses not subject to the rule on summary procedure in special cases, the institution of
criminal action shall be as follows:

a) For offenses falling under the jurisdiction of the Regional Trial Court, by filing the complaint
with the appropriate officer for the purpose of conducting the requisite preliminary investigation
therein;

b) For offenses falling under the jurisdiction of the Municipal Trial Courts and Municipal Circuit
Trial Courts, by filing the complaint directly with the said courts, or a complaint with the fiscal's
office. However, in Metropolitan Manila and other chartered cities, the complaint may be filed only
with the office of the fiscal.

In all cases such institution interrupts the period of prescription of the offense charged. (Emphasis supplied.)

Emphasis is laid on the last paragraph. The respondent maintains that the filing of the complaint with the Office of the Provincial Prosecutor
comes under the phrase "such institution" and that the phrase "in all cases" applies to all cases, without distinction, including those falling
under the Rule on Summary Procedure.

The said paragraph, according to the respondent, was an adoption of the following dictum in Francisco v. Court of Appeals: 5

In view of this diversity of precedents, and in order to provide guidance for Bench and Bar, this Court has re-examined
the question and, after mature consideration, has arrived at the conclusion that the true doctrine is, and should be, the
one established by the decisions holding that the filing of the complaint in the Municipal Court, even if it be merely for
purposes of preliminary examination or investigation, should, and does, interrupt the period of prescription of the
criminal responsibility, even if the court where the complaint or information is filed can not try the case on its merits.
Several reasons buttress this conclusion: first, the text of Article 91 of the Revised Penal Code, in declaring that the
period of prescription "shall be interrupted by the filing of the complaint or information" without distinguishing whether
the complaint is filed in the court for preliminary examination or investigation merely, or for action on the merits.
Second, even if the court where the complaint or information is filed may only proceed to investigate the case, its
actuations already represent the initial step of the proceedings against the offender. Third, it is unjust to deprive the
injured party of the right to obtain vindication on account of delays that are not under his control. All that the victim of
the offense may do on his part to initiate the prosecution is to file the requisite complaint.

It is important to note that this decision was promulgated on May 30, 1983, two months before the promulgation of the Rule on Summary
Procedure on August 1, 1983. On the other hand, Section 1 of Rule 110 is new, having been incorporated therein with the revision of the
Rules on Criminal Procedure on January 1, 1985, except for the last paragraph, which was added on October 1, 1988.

That section meaningfully begins with the phrase, "for offenses not subject to the rule on summary procedure in special cases," which plainly
signifies that the section does not apply to offenses which are subject to summary procedure. The phrase "in all cases" appearing in the last
paragraph obviously refers to the cases covered by the Section, that is, those offenses not governed by the Rule on Summary Procedure.
This interpretation conforms to the canon that words in a statute should be read in relation to and not isolation from the rest of the measure,
to discover the true legislative intent.

4
As it is clearly provided in the Rule on Summary Procedure that among the offenses it covers are violations of municipal or city ordinances, it
should follow that the charge against the petitioner, which is for violation of a municipal ordinance of Rodriguez, is governed by that rule and
not Section 1 of Rule 110.

Where paragraph (b) of the section does speak of "offenses falling under the jurisdiction of the Municipal Trial Courts and Municipal Circuit
Trial Courts," the obvious reference is to Section 32(2) of B.P. No. 129, vesting in such courts:

(2) Exclusive original jurisdiction over all offenses punishable with imprisonment of not exceeding four years and two
months, or a fine of not more than four thousand pesos, or both such fine and imprisonment, regardless of other
imposable accessory or other penalties, including the civil liability arising from such offenses or predicated thereon,
irrespective of kind, nature, value, or amount thereof; Provided, however, That in offenses involving damage to property
through criminal negligence they shall have exclusive original jurisdiction where the imposable fine does not exceed
twenty thousand pesos.

These offenses are not covered by the Rule on Summary Procedure.

Under Section 9 of the Rule on Summary Procedure, "the complaint or information shall be filed directly in court without need of a prior
preliminary examination or preliminary investigation." 6Both parties agree that this provision does not prevent the prosecutor from conducting
a preliminary investigation if he wants to. However, the case shall be deemed commenced only when it is filed in court, whether or not the
prosecution decides to conduct a preliminary investigation. This means that the running of the prescriptive period shall be halted on the date
the case is actually filed in court and not on any date before that.

This interpretation is in consonance with the afore-quoted Act No. 3326 which says that the period of prescription shall be suspended "when
proceedings are instituted against the guilty party." The proceedings referred to in Section 2 thereof are "judicial proceedings," contrary to the
submission of the Solicitor General that they include administrative proceedings. His contention is that we must not distinguish as the law
does not distinguish. As a matter of fact, it does.

At any rate, the Court feels that if there be a conflict between the Rule on Summary Procedure and Section 1 of Rule 110 of the Rules on
Criminal Procedure, the former should prevail as the special law. And if there be a conflict between Act. No. 3326 and Rule 110 of the Rules
on Criminal Procedure, the latter must again yield because this Court, in the exercise of its rule-making power, is not allowed to "diminish,
increase or modify substantive rights" under Article VIII, Section 5(5) of the Constitution. Prescription in criminal cases is a substantive
right. 7

Going back to the Francisco case, we find it not irrelevant to observe that the decision would have been conformable to Section 1, Rule 110,
as the offense involved was grave oral defamation punishable under the Revised Penal Code with arresto mayor in its maximum period
to prision correccional in its minimum period. By contrast, the prosecution in the instant case is for violation of a municipal ordinance, for
which the penalty cannot exceed six months, 8 and is thus covered by the Rule on Summary Procedure.

The Court realizes that under the above interpretation, a crime may prescribe even if the complaint is filed seasonably with the prosecutor's
office if, intentionally or not, he delays the institution of the necessary judicial proceedings until it is too late. However, that possibility should
not justify a misreading of the applicable rules beyond their obvious intent as reasonably deduced from their plain language. The remedy is
not a distortion of the meaning of the rules but a rewording thereof to prevent the problem here sought to be corrected.

Our conclusion is that the prescriptive period for the crime imputed to the petitioner commenced from its alleged commission on May 11,
1990, and ended two months thereafter, on July 11, 1990, in accordance with Section 1 of Act No. 3326. It was not interrupted by the filing of
the complaint with the Office of the Provincial Prosecutor on May 30, 1990, as this was not a judicial proceeding. The judicial proceeding that
could have interrupted the period was the filing of the information with the Municipal Trial Court of Rodriguez, but this was done only on
October 2, 1990, after the crime had already prescribed.

WHEREFORE, the petition is GRANTED, and the challenged Order dated October 2, 1991 is SET ASIDE. Criminal Case No. 90-089 in the
Municipal Trial Court of Rodriguez, Rizal, is hereby DISMISSED on the ground of prescription. It is so ordered.

Narvasa, C.J., Gutierrez, Jr., Paras, Feliciano, Padilla, Bidin, Griño-Aquino, Medialdea, Regalado, Davide, Jr., Romero, Nocon and Bellosillo,
JJ., concur.

Footnotes

1 Rollo, p. 18.

2 Ibid.

3 Id., p. 19; Through Judge Andres B. Reyes, Jr.

5
4 Id., p. 21

5 122 SCRA 538

6 The phrase "filed directly in court without need of prior preliminary examination or preliminary investigation" was
deleted under the Revised Rule on Summary Procedure effective on November 15, 1991.

7 People vs. Castro, 95 Phil. 463.

8 Section 447, Local Government Code.

6
 EN BANC
[G.R. No. 69863-65 : December 10, 1990.]
192 SCRA 183
LINO BROCKA, BENJAMIN CERVANTES, COSME GARCIA, RODOLFO SANTOS, VALENTINO
SALIPSIP, RICARDO VEGA, ERIC MARIANO, JOSE EMMANUEL OYALES, RONNIE MATTA,
ALFREDO VIAJE, RUBEN EUGENIO, REYNALDO ORTIZ, ORLANDO ORTIZ, NOEL REYES,
EDUARDO IMPERIAL, NESTOR SARMIENTO, FRANCO PALISOC, VIRGILIO DE GUZMAN,
ALBERTO REYES, JESSIE PINILI, ROMULO AUGUIS, DOMINADOR RESURRECION III, RONNIE
LAYGO, ROSAURO ROQUE, CLARENCE SORIANO, OCTAVO DEPAWA, CARLITO LA TORRE,
SEVERNO ILANO, JR., DOMINGO CAJIPE, ALAN ALEGRE, RAMON MARTINEZ, MA. GILDA
HERNANDEZ, EDNA P. VILLANUEVA, DOLLY S. CANU, MELQUIADES C. ATIENZA, ELIGIO P.
VERA CRUZ, ROGER C. BAGAN, ABUNDIO M. CALISTE, Petitioners, vs. JUAN PONCE ENRILE,
MAJ. GENERAL FIDEL V. RAMOS, BRIG. GENERAL PEDRO BALBANERO, COL. ABAD, COL.
DAWIS, SERGIO APOSTOL, P/LT, RODOLFO M. GARCIA and JUDGE RICARDO TENSUAN,
Respondents.

DECISION

MEDIALDEA, J.:

This petition was originally filed on February 13, 1985 to secure the release of petitioners on
habeas corpus and to permanently enjoin the City Fiscal of Quezon City from investigating
charges of "Inciting to Sedition" against petitioners Lino Brocka, Benjamin Cervantes, Cosme
Garcia and Rodolfo Santos, (hereafter Brocka, et al.). On learning that the corresponding
informations for this offense has been filed by the City Fiscal against them on February 11,
1985, a supplemental petition was filed on February 19, 1985 (p. 51, Rollo) to implead the
Presiding Judge, 1 and to enjoin the prosecution of Criminal Cases Nos. Q-38023, Q-38024
and Q-38025 (p. 349, Rollo) and the issuance of warrants for their arrests, including their
arraignment. Since then President Ferdinand E. Marcos had ordered the provisional release
of Brocka, et al., the issue on habeas corpus has become moot and academic (p. 396, Rollo).
We shall thus focus on the question of whether or not the prosecution of the criminal cases
for Inciting to Sedition may lawfully be enjoined. :-cralaw

Petitioners were arrested on January 28, 1985 by elements of the Northern Police District
following the forcible and violent dispersal of a demonstration held in sympathy with the
jeepney strike called by the Alliance of Concerned Transport Organization (ACTO). Thereafter,
they were charged with Illegal Assembly in Criminal Cases Nos. 37783, 37787 and 37788
with Branch 108, Regional Trial Court, NCJR, Quezon City. 2
Except for Brocka, et al. who were charged as leaders of the offense of Illegal Assembly and
for whom no bail was recommended, the other petitioners were released on bail of P3,000.00
each. Brocka, et al.'s provisional release was ordered only upon an urgent petition for bail for
which daily hearings from February 1-7, 1985 were held.
However, despite service of the order of release on February 9, 1985, Brocka, et al. remained
in detention, respondents having invoked a Preventive Detention Action (PDA) allegedly
issued against them on January 28, 1985 (p. 6, Rollo). Neither the original, duplicate original
nor certified true copy of the PDA was ever shown to them (p. 367, Rollo).

7
Brocka, et al. were subsequently charged on February 11, 1985 with Inciting to Sedition,
docketed as Criminal Cases Nos. Q-38023, Q-38024 and Q-38025 (p. 349, Rollo), without
prior notice to their counsel (p. 7, Rollo). The original informations filed recommended no bail
(p. 349, Rollo). The circumstances surrounding the hasty filing of this second offense are cited
by Brocka, et al. (quoting from a separate petition filed on their behalf in G.R. Nos. 69848-
50 entitled "Sedfrey A. Ordoñez vs. Col. Julian Arzaga, et al."), as follows:
"x x x
"6. The sham' character of the inquest examination concocted by all respondents is starkly
bizarre when we consider that as early as 10:30 A.M. today, February 11, 1985, Benjamin
Cervantes was able to contact undersigned petitioner by phone informing counsel that said
Benjamin Cervantes and the 4 other persons who are the subjects of this petition will be
brought before the Quezon City Fiscal at 2:30 for undisclosed reasons: subsequently, another
phone call was received by petitioning counsel informing him that the appearance of Benjamin
Cervantes et al. was to be at 2:00 P.M. When petitioning counsel arrived in the office of
Assistant City Fiscal Arturo Tugonon, the complainants' affidavits had not yet been received
by any of the panel of three assistant city fiscals, although the five persons under detention
were already in the office of said assistant fiscal as early as 2:00 P.M. It was only at 3:00
when a representative of the military arrived bringing with him alleged statements of
complainants against Lino Broka (sic) et al. for alleged inciting to sedition, whereupon
undersigned counsel asked respondent Colonel Agapito Abad 'who ordered the detained
persons to be brought to the office of Assistant Fiscal Arturo Tugonon since there were no
charges on file;' and said Colonel Agapito Abad said aloud: 'I only received a telephone call
from Colonel Arzaga about 11:00 A.M. to bring the detained persons today — I am only the
custodian.' At 3:15, petitioning counsel inquired from the Records Custodian when the charges
against Lino Broka (sic) had been officially received and he was informed that the said charges
were never coursed through the Records Office.
"7. Under the facts narrated above, respondents have conspired to use the strong arm of the
law and hatched the nefarious scheme to deprive Lino Broka (sic) et al. the right to bail
because the utterances allegedly constituting inciting to sedition under Article 142 of the
Revised Penal Code are, except for varying nuances, almost verbatim the same utterances
which are the subject of Criminal Cases No. 37783, 37787 and 37788 and for which said
detained persons are entitled to be released on bail as a matter of constitutional right. Among
the utterances allegedly made by the accused and which the respondents claimed to be
violative of Article 142 of the Revised Penal Code are: 'Makiisa sa mga drivers, "Makiisa sa
aming layunin, "Digmaang bayan ang sagot sa kahirapan,' Itigil ang pakikialam ng
imperyalismo sa Pilipinas,' 'Rollback ng presyo ng langis sa 95 Centavos.' (See Annex B)
"8. That when petitioning counsel and other members of the defense panel requested that
they be given 7 days within which said counsel may confer with their clients — the detained
persons named above, the panel of assistant fiscals demanded that said detained persons
should sign a 'waiver' of their rights under Article 125 of the Revised Penal Code as a condition
for the grant of said request, which is a harassing requirement considering that Lino Broka
(sic) et al. were already under the detention, albeit illegally, and they could not have waived
the right under Rule 125 which they did not enjoy at the time the ruling was made by the
panel of assistant city fiscals." (pp. 4-6, Rollo in G.R. 69848-50).
They were released provisionally on February 14, 1985, on orders of then President F. E.
Marcos. The circumstances of their release are narrated in Our resolution dated January 26,
1985, as quoted in the Solicitor General's Manifestation as follows:
"G.R. Nos. 69848-50 (Sedfrey A. Ordoñez, Petitioner, vs. Col. Julian Arzaga, et al.,
Respondents). — Petitioner Sedfrey A. Ordoñez filed this petition for habeas corpus in behalf
of Lino Brocka, Benjamin Cervantes, Cosme Garcia, Alexander Luzano, and Rodolfo Santos,

8
who were all detained under a Preventive Detention Action (PDA) issued by then President
Ferdinand E. Marcos on January 28, 1985. They were charged in three separate informations
of the crime of illegal assembly under Art. 146, paragraph 3 of the Revised Penal Code, as
amended by PD 1834. On February 7, 1985, the Honorable Miriam Defensor Santiago,
Regional Trial Judge of Quezon City, issued a resolution in the above criminal cases, directing
the release of the five accused on bail of P6,000.00 for each of them, and from which
resolution the respondent fiscals took no appeal. Immediately thereafter, the accused filed
their respective bail bonds. This notwithstanding, they continued to be held in detention by
order of the respondent colonels; and on February 11, 1985, these same accused were
'reinvestigated,' this time on charges of 'inciting to sedition' ** under Art. 142 of the Revised
Penal Code, following which corresponding cases were filed. The respondents complied with
Our resolution requiring them, inter alia, to make a RETURN of the writ of habeas corpus. In
their RETURN, it appeared that all the accused had already been released, four of them on
February 15, 1985 and one February 8, 1985. The petitioner, nevertheless, argued that the
petition has not become moot and academic because the accused continue to be in the
custody of the law under an invalid charge of inciting to sedition." (p. 395, Rollo).
Hence, this petition.
Brocka, et al. contend that respondents' manifest bad faith and/or harassment are sufficient
bases for enjoining their criminal prosecution, aside from the fact that the second offense of
inciting to sedition is illegal, since it is premised on one and the same act of attending and
participating in the ACTO jeepney strike. They maintain that while there may be a complex
crime from a single act (Art. 48, RTC), the law does not allow the splitting of a single act into
two offenses and filing two informations therefor, further, that they will be placed in double
jeopardy.
The primary issue here is the legality of enjoining the criminal prosecution of a case, since
the two other issues raised by Brocka, et al. are matters of defense against the sedition
charge.
We rule in favor of Brocka, et al. and enjoin their criminal prosecution for the second offense
of inciting to sedition.
Indeed, the general rule is that criminal prosecution may not be restrained or stayed by
injunction, preliminary or final. There are however exceptions, among which are:
"a. To afford adequate protection to the constitutional rights of the accused (Hernandez
vs. Albano, et al., L-19272, January 25, 1967, 19 SCRA 95);
"b. When necessary for the orderly administration of justice or to avoid oppression or
multiplicity of actions (Dimayuga, et al. vs. Fernandez, 43 Phil. 304; Hernandez vs. Albano,
supra; Fortun vs. Labang, et al., L-38383, May 27, 1981, 104 SCRA 607);
"c. When there is a pre-judicial question which is sub judice (De Leon vs. Mabanag, 70 Phil.
202);
"d. When the acts of the officer are without or in excess of authority (Planas vs. Gil, 67 Phil.
62);
"e. Where the prosecution is under an invalid law, ordinance or regulation (Young vs. Rafferty,
33 Phil. 556; Yu Cong Eng vs. Trinidad, 47 Phil. 385, 389);
"f. When double jeopardy is clearly apparent (Sangalang vs. People and Avendia, 109 Phil.
1140);
"g. Where the court has no jurisdiction over the offense (Lopez vs. City Judge, L-25795,
October 29, 1966, 18 SCRA 616);

9
"h. Where it is a case of persecution rather than prosecution (Rustia vs. Ocampo, CA-G.R.
No. 4760, March 25, 1960);
"i. Where the charges are manifestly false and motivated by the lust for vengeance (Recto
vs. Castelo, 18 L.J. [1953], cited in Rañoa vs. Alvendia, CA-G.R. No. 30720-R, October 8,
1962; Cf, Guingona, et al vs. City Fiscal, L-60033, April 4, 1984, 128 SCRA 577); and
"j. When there is clearly no prima facie case against the accused and a motion to quash on
that ground has been denied (Salonga vs. Paño, et al., L-59524, February 18, 1985, 134
SCRA 438).
"7. Preliminary injunction has been issued by the Supreme Court to prevent the threatened
unlawful arrest of petitioners (Rodriguez vs. Castelo, L-6374, August 1, 1958)." (cited in
Regalado, Remedial Law Compendium, p. 188, 1988 Ed.)
In the petition before Us, Brocka, et al. have cited the circumstances to show that the criminal
proceedings had become a case of persecution, having been undertaken by state officials in
bad faith.
: nad

Respondents, on the other hand, had invoked a PDA in refusing Brocka, et al.'s release from
detention (before their release on orders of then Pres. Marcos). This PDA was, however, issued
on January 28, 1985, but was invoked only on February 9, 1985 (upon receipt of the trial
court's order of release). Under the guidelines issued, PDAs shall be invoked within 24 hours
(in Metro Manila) or 48 hours (outside Metro Manila). (Ilagan v. Enrile, G.R. No. 70748,
October 28, 1985, 139 SCRA 349). Noteworthy also is Brocka, et al.'s claim that, despite
subpoenas for its production, the prosecution merely presented a purported xerox copy of the
invoked PDA (par. 4, Counter-Rejoinder, p. 367, Rollo).
The foregoing circumstances were not disputed by the Solicitor General's office. In fact they
found petitioner's plight "deplorable" (par. 51, Manifestation, p. 396, Rollo).
The hasty filing of the second offense, premised on a spurious and inoperational PDA, certainly
betrays respondent's bad faith and malicious intent to pursue criminal charges against Brocka,
et al.
We have expressed Our view in the Ilagan case that "individuals against whom PDAs have
been issued should be furnished with the original, and the duplicate original, and a certified
true copy issued by the official having official custody of the PDA, at the time of the
apprehension" (supra, p. 369).
We do not begrudge the zeal that may characterize a public official's prosecution of criminal
offenders. We, however, believe that this should not be a license to run roughshod over a
citizen's basic constitutional lights, such as due process, or manipulate the law to suit
dictatorial tendencies.
We are impelled to point out a citizen's helplessness against the awesome powers of a
dictatorship. Thus, while We agree with the Solicitor General's observation and/or
manifestation that Brocka, et al. should have filed a motion to quash the information, We,
however, believe that such a course of action would have been a futile move, considering the
circumstances then prevailing. Thus, the tenacious invocation of a spurious and inoperational
PDA and the sham and hasty preliminary investigation were clear signals that the prosecutors
intended to keep Brocka, et al. in detention until the second offense of "Inciting to Sedition"
could be facilitated and justified without need of issuing a warrant of arrest anew. As a matter
of fact the corresponding informations for this second offense were hastily filed on February
11, 1985, or two days after Brocka, et al.'s release from detention was ordered by the trial
judge on February 9, 1985.

10
Constitutional rights must be upheld at all costs, for this gesture is the true sign of democracy.
These may not be set aside to satisfy perceived illusory visions of national grandeur. : nad

In the case of J. Salonga v. Cruz Paño, We point out:

"Infinitely more important than conventional adherence to general rules of criminal procedure
is respect for the citizen's right to be free not only from arbitrary arrest and punishment but
also from unwarranted and vexatious prosecution . . ." (G.R. No. L-59524, February 18, 1985,
134 SCRA 438-at p. 448).
We, therefore, rule that where there is manifest bad faith that accompanies the filing of
criminal charges, as in the instant case where Brocka, et al. were barred from enjoying
provisional release until such time that charges were filed, and where a sham preliminary
investigation was hastily conducted, charges that are filed as a result should lawfully be
enjoined.
ACCORDINGLY, the petition is hereby GRANTED. The trial court is PERMANENTLY ENJOINED
from proceeding in any manner with the cases subject of the petition. No costs.
SO ORDERED.
Fernan C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Gancayco, Padilla, Bidin,
Sarmiento, Griño-Aquino and Regalado, JJ., concur.
Feliciano, J., is on leave.

Endnotes
1. Judge Ricardo Tensuan, Branch 83, RTC, National Capital Judicial Region, Quezon City.
2. Judge Miriam D. Santiago, Presiding Judge.
** Criminal Cases Nos. 38023, 38024 and 38025, subject of the instant cases.

11
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-32849 July 31, 1984

QUIRICO A. ABELA, petitioner,

vs.
HONORABLE CESARIO C. GOLEZ, Judge, Court of First Instance of Capiz, Branch I, and
AGUSTIN ALMALBIS respondents.

RELOVA, J.:

Direct appeal by City Fiscal Quirico A. Abela, of Roxas City, from a decision dated August 27, 1970
of then Court of First Instance Judge Cesario C. Golez, compelling him to "file the proper action for
estafa arising from the bouncing check Exhibit B. Without pronouncement as to costs." (p. 41, Rollo)

On December 28, 1968, private respondent Agustin Almalbis filed with the Office of the City Fiscal of
Roxas City a complaint for estafa against one Virginia Anisco. After conducting a preliminary
investigation, herein petitioner Quirico A. Abela dismissed the complaint "for lack of merit."
Thereafter, private respondent Almalbis commenced the action for mandamus in the Court of First
Instance of Roxas City against herein petitioner Quirico A. Abela. In due course said court rendered
the above-mentioned decision. Hence, this appeal.

The findings of the petitioner are contained in his Order, from which we quote:

It appeared from the testimony of the complainant, that sometime in 1967, the
complainant entered into a business arrangement with the respondent, Virginia P.
Anisco. The former, who is both owner and operator of several fishing boats and
fishponds, sends fish by the tons to the respondent to be sold at the Manila Divisoria
Market. From the proceeds of such sales, which were entirely supervised and
controlled by the respondent, respondent got four per cent (4%) commission from the
gross proceeds plus whatever expenses she has advanced as expenses in the
process. Respondent in turn has the obligation to remit the balance of the proceeds
to the complainant.

This business arrangement had continued for sometime at a more or less irregular
interval of two weeks to the satisfaction of both parties, until the respondent later
became late and irregular in her remittances of the balance of the proceeds due the
complainant.

Remittances of the net proceeds were mostly done by respondent by sending her
personal checks and later, when respondent had been late in her remittances,
complainant proposed that respondent give him a check book, each and every check
of which is presigned in blank. The blanks corresponding to the amount and the
payee to be filled in later by the complainant as the value of the shipment is
determined after each sale. This was done and the business again continued under

12
the above arrangement. Then Checks Nos. 378389 dated September 16, 1968,
392377 dated October 20, 1968, 392379 dated October 29, 1968, 392380 dated
October 30, 1968, and 392381 dated October 30, 1968 drawn on the Prudential
Bank and Trust Company of Manila as prepared and filled in by the complainant
were all dishonored for lack of funds, when presented for payments by the
complainant through the Roxas City Branch of the Philippine National Bank.

The foregoing is the summary of the testimony of complainant, Agustin Almalbis. and
with the submission of his aforementioned exhibits, rested his case.

Respondent failed to appear on the dates scheduled for her turn and was considered
to have waived her rights to present evidence in her defense.

THE ISSUE

The question is, has the respondent committed Estafa by giving, presigned blank
checks to the complainant which were later dishonored by the bank for lack of funds,
as defined under Art. 315 paragraph 2-d of the Revised Penal Code.

xxx xxx xxx

There is a deceit when one is misled, either by guile or trickery or by other means, to
believe to be true what is really false.

When, therefore, the parties agreed to the arrangement, that the respondent give a
check book, all the individual checks contained therein already signed by the
respondent as drawer in blank, leaving the complainant to fill in the payee and the
amount to be drawn later after the amount is determined after the sale of each
shipment of fish consigned to the respondents such arrangement can only be
considered as an agreement for business convenience between those concerned
and no more.

Certainly, deceit can not be attributed to the respondent if the checks from the
aforesaid check book under the control of the complainant, prepared and filled in by
him as to the date, the payee and amount, turned out to be dishonored as it did due
to lack of funds for the simple reason, that except for presigning the checks the
respondent had no hand in the preparation of the same thereby giving her no chance
to determine the sufficiency of her original bank deposit or the necessary amount for
replenishment of such deposit.

xxx xxx xxx

Considering, further, the element mentioned herein before, that the check dishonored
must have been issued in payment of an obligation contracted at the same time
without which the transaction would not have been consummated as held in the case
of People vs. Obieta et al. (CA-52 O.G. 065224), the inapplicability of the penal
provision relied upon by the complainant becomes glaringly clear.

That act of the respondent in signing the checks in blank, delivering the same to the
complainant to be filled in later by the latter as to the date indicating the date of the
issuance, the name of the payee and the amount to be drawn, in payment for the

13
 costs of future shipments of fish to be sold at the Manila Market, can never be
interpreted or considered as checks issued in the payment of an obligation
contracted at, the same time even by the wildest stretch of imagination. The law
contemplates, as ruled in the case of People vs. Obieta aforecited, of one
uninterrupted transaction. The consummation of the transaction and the issuance
must be concurrent. (pp. 17, 20, 21, 22, Rollo)

The Honorable Judge Golez overruled petitioner, saying:

The first check so issued is PBTC (Prudential Bank and Trust Company) Check AD
No. 378389, dated September 16, 1968, payable to the order of Mr. Agustin Almalbis
in the amount of P6,000.00 and signed by Virginia P. Anisco (Exhibit B).

The second check issued was PBTC Check AD No. 392377, dated October 20,
1968, payable to the order of Cash in the amount of P3,637.05 and signed by
Virginia P. Anisco. (Exhibit C).

The third check issued was PBTC Check No. 392379, dated October 29, 1968,
payable to the order of Agustin Almalbis in the amount of P3,426.85 and signed by
Virginia P. Anisco. (Exhibit D).

The fourth and fifth checks issued were PBTC Check AD No. 392381, and PBTC
Check AD No. 392380, both dated October 30, 1968, in the amount of P1,360.50
and P3,000.00, respectively, both payable to Cash both signed by Virginia P. Anisco.
(Exhibits E and F).

It also appears that Virginia P. Anisco, the respondent mentioned in the

aforementioned letter-complaint Exhibit A, was handling the sales of the fish which
the petitioner in Roxas City was shipping from time to time to Manila where the said
fish was sold by Virginia P. Anisco in the Divisoria Market for which service Anisco
was paid by Almalbis a commission of 4% on the gross proceeds of the sales.

According to Almalbis it was their agreement that Anisco would remit to him here in
Roxas City the net proceeds of the sales of fish made by Anisco in Manila after
deducting her commission and other incidental expenses therefrom.

The five checks Exhibits B, C, D, E and F adverted to elsewhere above represented

the net proceeds realized from the sales made by Virginia P. Anisco of the fish of
Agustin Almalbis.

The petitioner Agustin Almalbis further narrated that the PBTC Check AD No.
378389, dated September 16, 1968 (Exhibit B), was hand-carried by Amador Anisco,
from Manila to Roxas City where Amador delivered the said check Exhibit B to the
said petitioner. Then Almalbis indorsed the check Exhibit B to the Philippine National
Bank, Roxas City Branch, where it was accepted for deposit only. Later on the check
Exhibit E was returned to Almalbis, dishonored by the Prudential Bank and Trust
Company against which it had been drawn, for lack of funds. When the check Exhibit
B had found its way back to Almalbis, the latter left for Manila to inquire from Virginia
why the said check bounced back. Virginia begged of him to give her a little more
time to get sufficient funds for The said check Exhibit B. But the funds never came.

14
Meanwhile, and upon the plea of Virginia, the petitioner continued to make shipments
of fish to her, and as part of this new understanding, Virginia agreed to sign, as she
signed, checks in blank which she delivered to petitioner who was to fill the blanks
therein with the amount and date corresponding to the sales of fish made by Virginia
and reported by her by telegram to said petitioner. By virtue of this arrangement the
checks Exhibits C, D, E and F were made out by Almalbis himself by filling up the
pre-signed blank checks provided him by Virginia. But the said checks Exhibits C, D,
E and F also bounced back for lack of funds or for the reason of "Exceeds
Arrangements" (Exhibit D-5 and E-5).

Almalbis declared that he placed all of the foregoing facts at the disposal of the
respondent City Fiscal Quirico Abela who conducted the preliminary investigation on
his within mentioned letter-complaint of 26th December 1968.

xxx xxx xxx

The instant petition is also a two-fold action, firstly, for certiorari upon the ground that
the respondent Fiscal gravely abused his discretion in dismissing the within
mentioned complaint with the result that the petitioner herein has been deprived of
his right as the aggrieved party in a criminal transaction-and, secondly, for
mandamus to compel the said respondent to bring the corresponding criminal action.
The second phase of the action, i.e., mandamus, depends entirely upon the success
or failure of the first phase of the action, i.e., certiorari, in the sense that should it be
found that the respondent herein did gravely abuse his discretion in dismissing
petitioner's complaint mandamus would lie to rectify his error. (Bonilla, et al., vs. Sec.
of Agriculture & Natural Resources, L-20083, April 27, 1967).

In the given state of facts such as spelled out elsewhere above the right of the
petitioner, with specific reference to the check Exhibit B, cannot be said to be
dubious, uncertain or nebulous, but in fact well- defined, clear and certain, not at all
found within the sphere of speculation or probability, but is firmly secured within the
realm of certainty, and this condition should entitle the petitioner herein to a relief for
official inaction obtainable through the extraordinary remedy of mandamus. (See the
following cases: Aquino v. General Manager, GSIS, L-24859, Jan. 31, 1968; Aprueba
et al. v. Ganzon, et al., L-20867, Sept. 3, 1966; Kwok Kam Lien v. Vivo, L-22354,
Mar. 31, 1965; Alzate v. Aldana L-18085, May 1963; Villamor, et al. v. Lacson, et al.,
L-15945, Nov. 28, 1964; People v. Orais, 65 Phil. 744, 747.)

While as already shown the discretion of the court will not ordinarily be controlled by
mandamus, it is not universally true that the writ will not issue to control such
discretion or to require a judicial tribunal to act in a particular way. Where the
discretion of the court can be legally exercised in only one way, mandamus will lie to
compel the court to exercise it; and in some cases has been employed to correct the
errors of inferior tribunals and to prevent a failure of justice or irreparable injury
where there is a clear right, and there is an absence of any adequate remedy, as for
instance where no appeal lies, or where the remedy by appeal is inadequate. It may
also be employed to prevent an abuse of discretion or to correct an arbitrary action
which does not amount to the exercise of discretion. (Corpus Juris, sec. 85, pp. 608-
609, as quoted in People v. Orais, supra)

So that where the fiscal filed an information for homicide over the insistence of the
aggrieved party that the crime committed was murder as shown by the declaration of

15
 witnesses disclosing the presence of qualifying circumstances the Supreme Court
ruled that his failure to file the proper information rendered the Fiscal subject to the
writ of mandamus. (Bernabe v. Bolinas, et al., L-22000, Nov. 29, 1966.) " (pp. 33, 35,
39, 4 1, Rollo)

There is merit in the appeal. The public prosecutor is entitled to use his judgment and discretion in
the appreciation of evidence presented to him and, in the exercise thereof, he may not be controlled
by mandamus. Whether an information should be filed in court is a matter address to the sound
discretion of the fiscal according to whether the evidence is in his opinion sufficient to establish the
guilt of the accused beyond a reasonable doubt.

Otherwise stated, the fiscal can not be compelled to act in a distinct manner whether to prosecute or
not to prosecute and, instead, is allowed to stand on his opinion and conviction, "reserving only to
the Secretary, in any appropriate case when the latter believes public interest impels that a different
course of action should be taken, to temporarily relieve the fiscal of the duty to act by designating
somebody else to take his place solely and only for the purpose of such particular case. ... Under
Sections 1679 and 1689 of the Revised Administrative Code, in any instance where a provincial or
city fiscal fails, refuses or is unable, for any reason, to investigate or prosecute a case and, in the
opinion of the Secretary of Justice it is advisable in the public interest to take a different course of
action, the Secretary may either appoint as acting provincial or city fiscal, to handle the investigation
or prosecution exclusively and only for such case, any practicing attorney or some competent officer
of the Department of Justice or office of any city or provincial fiscal, with complete authority to act
therein in all respects as if he were the provincial or city fiscal himself, or appoint any lawyer in the
government service or not in the government service, temporarily to assist such city or provincial
fiscal in the discharge of his duties, with the same complete authority to act independently of and for
such city or provincial fiscal, provided that no such appointment may be made without first hearing
the fiscal concerned and never after the corresponding information has already been filed with the
court by the corresponding city or provincial fiscal without the conformity of the latter, except when it
can be patently shown to the court having cognizance of the case that said fiscal is intent on
prejudicing the interest of justice. The same sphere of authority is true with the prosecutor directed
and authorized under Section 3 of Republic Act 3783, as amended and/or inserted by Republic Act
5184." (Estrella vs. Orendain Jr., 37 SCRA 640)

However, the matter of instituting an information should be distinguished from a motion by the fiscal
for the dismissal of a case already filed in court. The judge may properly deny the motion where,
judging from the record of the preliminary investigation, there appears to be sufficient evidence to
sustain the prosecution. This is, as it should be, because the case is already in court and, therefore,
within its discretion and control.

But then, the question may be asked: What are the remedies of the offended party or complainant
when the prosecuting officer refuses or fails to file an information or to prosecute the criminal action?
As stated above, "[i]n case the provincial fiscal should fail or refuse to act even when there is
sufficient evidence on which action may be taken, the offended party may take up the matter with the
Secretary of Justice who may then take such measures as may be necessary in the interest of
justice under Section 1679 of the Revised Administrative Code. (Pañgan vs. Pasicolan, 103 Phil.
1143). " He may also file with the proper authorities or courts criminal and administrative charges
against the prosecuting officer. As held in Bagatua vs. Revilla, 104 Phil. 393, "[w]hile it is the duty of
the fiscal or the City Attorney, as prosecuting officer, to prosecute persons who, according to the
evidence received from the complainant; are shown to be guilty of a crime, said officer is likewise
bound by his oath of office to protect innocent persons from groundless, false or malicious
prosecution. The prosecuting officer would be committing a serious dereliction of duty if he files the
information based upon a complaint, where he is not convinced that the sufficiency and strength of
the evidence would warrant the filing of the action in court against the accused. This duty of the

16
prosecuting officer involves discretion, hence, it cannot be controlled by mandamus unless there has
been a grave abuse thereof which is not shown in the case at bar." Or, he may file a civil action for
damages under Article 27 of the New Civil Code.

WHEREFORE, the decision, dated August 27, 1970, of respondent judge is hereby SET ASIDE.

SO ORDERED.

Concepcion, Jr., Guerrero, Abad Santos, Melencio-Herrera, Plana, Gutierrez, Jr., De la Fuente and
Cuevas, JJ., concur.

Makasiar, J., concurs in the result.

Fernando, C.J., Escolin, Teehankee, JJ., took no part.

Separate Opinions

AQUINO, J., concurring:

I concur. As a general rule, mandamus does not lie to compel the fiscal to file an information
because that duty involves the exercise of discretion and judgment. It is not ministerial (Gonzales vs.
Serrano, L-25791, September 23, 1968, 25 SCRA 64; Vda. de Bagatua vs. Revilla, 104 Phil. 392;
Gonzales vs. Court of First Instance of Bulacan, 63 Phil. 846; People vs. Natoza 100 Phil. 533, 536;
Alberto vs. De la Cruz, L-31839, June 30, 1980, 98 SCRA 406; Aquino vs. Mariano, L-30485, May
31, 1984).

It is not fair to compel the fiscal to prosecute a person whose guilt may not, in his opinion, be
established with the evidence submitted to him (People vs. Santos, L-25413, October 31, 1969,30
SCRA 100).

But if the fiscal acts with grave abuse of discretion in not prosecuting the accused, he may be
compelled by mandamus to file the proper information.

For example, it is grave abuse of discretion on the fiscal's part to file an information for homicide only
when the evidence presented before him warrants the firing of a murder charge because the killing
was treacherous. He may be compelled by mandamus to file a charge for murder (Bernabe vs.
Bolinas, Jr., L-22000, November 29,1966. 18 SCRA 812).

Against the unjust action or inaction of a fiscal, the remedy is an appeal to the Minister of Justice
who has control of fiscals, or to file an administrative charge against him. (Presidential Decree No.
1275, Reorganizing the Prosecution Staff; Circular No. 36 dated July 1, 1980, Ministry of Justice;
Estrella vs. Orendain Jr., L-19611, February 27, 1971, 37 SCRA 640; Noblejas vs. Salas, L-31788,
September 15, 1975, 67 SCRA 47; Caeg vs. Abad Santos, L-40044, March 10, 1975, 63 SCRA 96;
Pangan vs. Pasicolan, 103 Phil. 1143 unpublished.)

17
Separate Opinions

AQUINO, J., concurring:

I concur. As a general rule, mandamus does not lie to compel the fiscal to file an information
because that duty involves the exercise of discretion and judgment. It is not ministerial (Gonzales vs.
Serrano, L-25791, September 23, 1968, 25 SCRA 64; Vda. de Bagatua vs. Revilla, 104 Phil. 392;
Gonzales vs. Court of First Instance of Bulacan, 63 Phil. 846; People vs. Natoza 100 Phil. 533, 536;
Alberto vs. De la Cruz, L-31839, June 30, 1980, 98 SCRA 406; Aquino vs. Mariano, L-30485, May
31, 1984).

It is not fair to compel the fiscal to prosecute a person whose guilt may not, in his opinion, be
established with the evidence submitted to him (People vs. Santos, L-25413, October 31, 1969,30
SCRA 100).

But if the fiscal acts with grave abuse of discretion in not prosecuting the accused, he may be
compelled by mandamus to file the proper information.

For example, it is grave abuse of discretion on the fiscal's part to file an information for homicide only
when the evidence presented before him warrants the firing of a murder charge because the killing
was treacherous. He may be compelled by mandamus to file a charge for murder (Bernabe vs.
Bolinas, Jr., L-22000, November 29,1966. 18 SCRA 812).

Against the unjust action or inaction of a fiscal, the remedy is an appeal to the Minister of Justice
who has control of fiscals, or to file an administrative charge against him. (Presidential Decree No.
1275, Reorganizing the Prosecution Staff; Circular No. 36 dated July 1, 1980, Ministry of Justice;
Estrella vs. Orendain Jr., L-19611, February 27, 1971, 37 SCRA 640; Noblejas vs. Salas, L-31788,
September 15, 1975, 67 SCRA 47; Caeg vs. Abad Santos, L-40044, March 10, 1975, 63 SCRA 96;
Pangan vs. Pasicolan, 103 Phil. 1143 unpublished.)

18
 Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. L-39962 March 3, 1977

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
RICARDO BERIALES, BENEDICTO CUSTODIO and PABLITO CUSTODIO, accused-appellants.

RESOLUTION

CONCEPCION JR., J.: têñ.£îhqwâ£

The Court's attention has been called to the fact that the decision in this case has been interpreted in
prosecution circles in such manner as may cause the obstruction of the administration of justice.
Hence, a clarification and a restatement of some of the principles therein involved are in order.

In this case, which involved a prosecution in the Court of First Instance, the Court ruled, inter alia,
that the fiscal's duty to direct and control the prosecution of criminal cases requires that he must be
present during the proceedings; and that evidence presented by the private prosecutor at a hearing,
at which neither the fiscal nor his assistant or duly authorized special counsel was officially present,
cannot be considered as evidence for the People of the Philippines. This pronouncement, as can be
clearly deduced therefrom, applies to the trial and prosecution of criminal cases before the Courts of
First Instance, Criminal Circuit Courts, and City Courts (which are provided by law with their own City
Fiscals) only, and not to the municipal courts.

The procedure in the trial of criminal cases before the municipal courts and City Courts which do not
have their own City Fiscals has not in any way been altered or modified by the pronouncement in
this case. Under Sec. 2, Rule 110 1 of the Revised Rules of Court, and in the light of the ruling in the
cases of P.P.I. vs. Alvarez and P.P.I. vs. Perez, et al., 2police, constabulary, and other peace or law
enforcement officers and private prosecutors may prosecute criminal cases in the said courts, but this
authority ceases upon actual intervention of the provincial or City Fiscal or their assistants, or upon the
elevation of the case to the Court of First Instance.

Fernando (Chairman) and Antonio, JJ., concur.

Separate Opinions

BARREDO, J., concurring:

19
I would like to add that there is no prohibition against the offended party undertaking the prosecution
of the case.

AQUINO, J,: concurring:

It should be noted that the rule in sec. 4, Rule 110 that "all criminal actions either commenced by
complaint or by information shall be prosecuted under the direction and control of the fiscal" was
taken from U.S. vs. Despabiladeras, 32 Phil, 442, an adultery case prosecuted in the Court of First
Instance. Rule 123 prescribes the procedure in inferior courts, Section 4 of Rule 110 might have
been based on the assumption that criminal cases tried in inferior courts are appealable to the Court
of First Instance, where a trial de novo is held and where the fiscal shall take charge of the cause in
behalf of the prosecution (Secs. 6 and 7, Rule 123).

Separate Opinions

BARREDO, J., concurring:

I would like to add that there is no prohibition against the offended party undertaking the prosecution
of the case.

AQUINO, J,: concurring:

It should be noted that the rule in sec. 4, Rule 110 that "all criminal actions either commenced by
complaint or by information shall be prosecuted under the direction and control of the fiscal" was
taken from U.S. vs. Despabiladeras, 32 Phil, 442, an adultery case prosecuted in the Court of First
Instance. Rule 123 prescribes the procedure in inferior courts, Section 4 of Rule 110 might have
been based on the assumption that criminal cases tried in inferior courts are appealable to the Court
of First Instance, where a trial de novo is held and where the fiscal shall take charge of the cause in
behalf of the prosecution (Secs. 6 and 7, Rule 123).

Footnotes

1 Sec. 2. Complaint defined. — Complaint is a sworn written statement charging a

person with an offense, subscribed by the offended party, any peace officer or other
employee of the government or governmental institution in charge of the enforcement
or execution of the law violated.

2 74 Phil, 20.

20
 Republic of the Philippines
SUPREME COURT
Manila

FIRST DIVISION

G.R. Nos. 74989-90 November 6, 1989

JOEL B. CAES, petitioner,

vs.
Hon. INTERMEDIATE APPELLATE COURT (Fourth Special Cases Division), Hon. ALFREDO M.
GORGONIO, in his capacity as the Presiding Judge of the Regional Trial Court of Caloocan City,
Branch CXXV, National Capital Region and PEOPLE OF THE PHILIPPINES, respondents.

Sanchez & Montebon Law Office for petitioner.

CRUZ, J.:

We deal with a simple matter that should not detain us too long. Fittingly, we shall decide it in favor
of individual liberty rather than upon rebuttable presumptions and dubious implications.

The facts are simple and mostly undisputed.

On November 21, 1981, petitioner Joel Caes was charged in two separate informations with illegal
possession of firearms and illegal possession of marijuana before the Court of First Instance of
Rizal. 1 The cases were consolidated on December 10, 1981. 2

Arraignment was originally scheduled on January 11, 1982, but was for some reason postponed. 3

On August 31, 1982, Caes was arraigned and pleaded not guilty. 4 Trial was scheduled for October
13, 1982, but this was reset upon agreement of the parties. 5

On November 15, 1982, the trial was again postponed for reasons that do not appear in the record. 6

On December 20, 1982, the trial was again postponed because the prosecution witnesses were
absent. 7

On January 19, 1983, the third resetting of the case was also canceled, no reason appearing in the
record. 8

On February 21, 1983, no trial could be held again, the because witnesses being absent. 9

On March 21, 1983, the trial was reset once more, again because the prosecution witnesses were
absent. 10

On April 19, 1983, the trial of the case had not yet started. It was reset because the prosecution
witnesses were again absent. 11

21
On June 3, 1983, a sheriffs return informed the trial court that the prosecution witnesses, namely,
Capt. Carlos Dacanay and Sgt. Bonifacio Lustado had been personally served with subpoena to
appear and testify at the hearing scheduled on June 6, 1983. 12

On June 6, 1983, the trial was again postponed, this time because there was no trial fiscal. 13

On July 12, 1983, trial was reset for lack of material time. 14

On September 6, 1983, The trial was once more reset by agree-judgment of the parties. 15

On October 19, 1983, the trial was reset to November 14, 1983. 16

On November 14, 1983, the prosecution moved for the provisional dismissal of the case because its
witnesses had not appeared. On the same date, Judge Alfredo M. Gorgonio issued the following
order:

In view of the failure of the prosecution witnesses to appear on several scheduled

hearing and also for the hearing today which is an indication of lack of interest, upon
motion of the trial fiscal for the provisional dismissal of these cases and with the
conformity of the accused, the above-entitled cases are hereby ordered Provisionally
Dismissed, with costs de oficio. 17

On January 9, 1984, a motion to revive the cases was filed by Maj. Dacanay (he had been promoted
in the meantime) and Sgt. Lustado who alleged that they could not attend the hearing scheduled on
November 14, 1983, for lack of notice. 18 Copy of the motion was furnished the City Fiscal of
Caloocan City but not the petitioner.

On May 18, 1984, the respondent judge issued the following order:

Acting on the "Motion for the Revival of the Case" dated December 5, 1983 filed by
the complaining witnesses to which no opposition has been filed either by the Fiscal
or the defense, and considering that the dismissal of these cases was only
provisional, for reasons stated in the motion, the same is granted.

WHEREFORE, let these cases be set anew for hearing on June 13, 1984 at 8:30 in
the morning. 19

A motion for reconsideration filed by the petitioner dated June 7, 1984, was denied on October 9,
1984, and the revived cases were set from hearing on November 19, 1984. 20

The petitioner questioned the judge's order on certiorari with this Court, which reffered his petition to
the respondent court. The petition there was dismissed for lack of merit on May 20, 1986, and
reconsideration was denied on June 17, 1986. 21 Caes then came to us again.

The present petition is based on two arguments, to wit: (a) that the motion to revive the cases was
invalid because it was riot filed by the proper party nor was a copy served on the petitioner; and (b)
the revival of the cases would place the petitioner double jeopardy in violation of the Bill of Rights.

We sustain the petitioner on both counts.

22
It is axiomatic that the prosecution of a criminal case is the responsibility of the government
prosecutor and must always be under his control. 22 This is true even if a private prosecutor is
allowed to assist him and actually handles the examination of the witnesses and the introduction of
other evidence. 23 The witnesses, even if they are the complaining witnesses, cannot act for the
prosecutor in the handling of the case. Although they may ask for the filing of the case, they have no
personality to move for its dismissal or revival as they are not even parties thereto nor do they
represent the parties to the action. Their only function is to testify. In a criminal prosecution, the
plaintiff is represented by the government prosecutor, or one acting under his authority, and by no
one else.

It follows that the motion for the revival of the cases filed by prosecution witnesses (who never even
testified) should have been summarily dismissed by the trial judge. The mere fact that the
government prosecutor was furnished a copy of the motion and he did not interpose any objection
was not enough to justify the action of these witnesses. The prosecutor should have initiated the
motion himself if he thought it proper. The presumption that he approved of the motion is not
enough, especially since we are dealing here with the liberty of a person who had a right at least to
be notified of the move to prosecute him again. The fact that he was not so informed made the
irregularity even more serious. It is curious that the motion was granted just the same, and ex
parte at that and without hearing, and the petitioner's subsequent objection was brushed aside.

On the second issue, the position of the public respondent is that double jeopardy has not attached
because the case was only provisionally dismissed and it was with the conformity of the accused.
The petitioner denies that he consented to the dismissal and submits that the dismissal was final
notwithstanding its description.

Fittingly described as "res judicata in prison grey," the right against double jeopardy prohibits the
prosecution of a person for a crime of which he has been previously acquitted or convicted. The
purpose is to set the effects of the first prosecution forever at rest, assuring the accused that he shall
not thereafter be subjected to the danger and anxiety of a second charge against him for the same
offense.

It has been held in a long line of cases 24 that to constitute double jeopardy, there must be: (a) a valid
complaint or information; (b) filed before a competent court; (c) to which the defendant had pleaded;
and (d) of which he had been previously acquitted or convicted or which was dismissed or otherwise
terminated without his express consent.

There is no question that the first three requisites are present in the case at bar. What we must
resolve is the effect of the dismissal, which the petitioner contends finally and irrevocably terminated
the two cases against him. His submission is that the dismissal was not provisional simply because it
was so designated, more so since he had not expressly consented thereto.

It is settled that a case may be dismissed if the dismissal is made on motion of the accused himself
or on motion of the prosecution with the express consent of the accused. 25 Such a dismissal is
correctly denominated provisional. But a dismissal is not provisional even if so designated if it is
shown that it was made without the express consent of the accused. This consent cannot be
presumed nor may it be merely implied from the defendant's silence or his failure to object. As we
have held in a number of cases, such consent must be express, so as to leave no doubt as to the
defendant's conformity. 26 Otherwise, the dismissal will be regarded as final, i.e., with prejudice to the
refiling of the case.

There are instances in fact when the dismissal will be held to be final and to dispose of the case
once and for all even if the dismissal was made on motion of the accused himself. The first is where

23
the dismissal is based on a demurrer to the evidence filed by the accused after the prosecution has
rested. Such dismissal has the effect of a judgment on the merits and operates as an acquittal.
In People v. City of Silay, 27 for example, the trial court dismissed the case on motion of the accused
on the ground of insufficiency of the prosecution evidence. The government came to this Court
on certiorari, and the accused pleaded double jeopardy. Our finding was that the case should not
have been dismissed because the evidence submitted by the prosecution was not insufficient. Even
so, the petitioner had to be denied relief because the dismissal amounted to an acquittal on the
merits which was therefore not appealable. Justice Muñoz-Palma said: "However erroneous the
order of the respondent Court is, and although a miscarriage of justice resulted from said order, such
error cannot now be lighted because of the timely plea of double jeopardy."

The other exception is where the dismissal is made, also on motion of the accused, because of the
denial of his right to a speedy trial. This is in effect a failure to prosecute. Concerning this right, the
ruling in the old case of Conde v. Rivera 28 is still valid doctrine. Here the prosecution was dismissed
because the accused was made to "dance attendance on courts" and subjected to no less than eight
unjustified postponements extending over a year that unduly delayed her trial. In dismissing the
charges against her, Justice Malcolm declared for a unanimous Supreme Court:

On the one hand has been the petitioner, of humble station, without resources, but
fortunately assisted by a persistent lawyer, while on the other hand has been the
Government of the Philippine Islands which should be the last to set an example of
delay and oppression in the administration of justice. The Court is thus under a moral
and legal obligation to see that these proceedings come to an end and that the
accused is discharged from the custody of the law.

We lay down the legal proposition that, where a prosecuting officer, without good
cause, secures postponements of the trial of a defendant against his protest beyond
a reasonable period of time, as in this instance for more than a year, the accused is
entitled to relief ...

The case at bar is not much different from Conde. As the record shows, the petitioner was arraigned
on August 31, 1982, but was never actually tried until the cases were dismissed on November 14,
1983, following eleven postponements of the scheduled hearings, mostly because the prosecution
was not prepared. The accused was never absent at these aborted hearings. He was prepared to be
tried, but either the witnesses against him were not present, or the prosecutor himself was absent, or
the court lacked material time. Meantime, the charges against him continued to hang over his head
even as he was not given an opportunity to deny them because his trial could not be held.

Under these circumstances, Caes could have himself moved for the dismissal of the cases on the
ground of the denial of his right to a speedy trial. This would have been in keeping with People v.
Cloribel, 29 where the case dragged for almost four years due to numerous postponements, mostly at
the instance of the prosecution, and was finally dismissed on motion of the defendants when the
prosecution failed to appear at the trial. This Court held "that the dismissal here complained of was
not truly a dismissal but an acquittal. For it was entered upon the defendants' insistence on their
constitutional right to speedy trial and by reason of the prosecution's failure to appear on the date of
trial."

The circumstance that the dismissal of the cases against the petitioner was described by the trial
judge as "provisional" did not change the nature of that dismissal. As it was based on the "lack of
interest" of the prosecutor and the consequent delay in the trial of the cases, it was final and
operated as an acquittal of the accused on the merits. No less importantly, there is no proof that
Caes expressly concurred in the provisional dismissal. Implied consent, as we have repeatedly held,

24
is not enough; neither may it be lightly inferred from the presumption of regularity, for we are dealing
here with the alleged waiver of a constitutional right. Any doubt on this matter must be resolved in
favor of the accused.

We conclude that the trial judge erred in ordering the revival of the cases against the petitioner and
that the respondent court also erred in affirming that order. Caes having been denied his
constitutional right to a speedy trial, and not having expressly consented to the "provisional"
dismissal of the cases against him, he was entitled to their final dismissal under the constitutional
prohibition against double jeopardy. 30

The Court expresses its stern disapproval of the conduct in these cases of the Office of the City
Prosecutor of Caloocan City which reveals at the very least a lack of conscientiousness in the
discharge of its duties. The informations appear to have been filed in haste, without first insuring the
necessary evidence to support them. The prosecution witnesses repeatedly failed to appear at the
scheduled hearings and all the prosecution did was to perfunctorily move for a resetting, without
exerting earnest efforts to secure their attendance. In the end, it moved for the "provisional"
dismissal of the cases without realizing, because it had not studied the matter more carefully, that
such dismissal would have the effect of barring their reinstatement. Characteristically, it was also
non-committal on the motion to revive the cases filed by the prosecution witnesses only, thereby
surrendering, by its own silence, its authority in conducting the prosecution.

It is possible that as a result of its in attention, the petitioner has been needlessly molested if not
permanently stigmatized by the unproved charges. The other possibility, and it is certainly worse, is
that a guilty person has been allowed to escape the penalties of the law simply because he may now
validly claim the protection of double jeopardy. In either event, the responsibility clearly lies with the
Office of the City Prosecutor of Caloocan City for its negligence and ineptitude.

WHEREFORE, the petition is GRANTED. The challenged decision of the respondent court dated
May 20, 1986, and the orders of the trial court dated May 18, 1984, and October 9, 1984, are SET
ASIDE. The dismissal of Criminal Cases Nos. C-16411(81) and C-16412(81) is hereby declared as
final.

Let a copy of this decision be sent to the Secretary of Justice.

SO ORDERED.

Narvasa, Gancayco, Griño-Aquino and Medialdea, JJ., concur.

25
 June 30, 1987

G.R. No. L-53373

MARIO FL. CRESPO, petitioner,

vs.
HON. LEODEGARIO L. MOGUL, Presiding Judge, CIRCUIT CRIMINAL COURT OF LUCENA CITY,
9th Judicial Dist., THE PEOPLE OF THE PHILIPPINES, represented by the SOLICITOR GENERAL,
RICARDO BAUTISTA, ET AL., respondents.

GANCAYCO, J.:

The issue raised in this ease is whether the trial court acting on a motion to dismiss a criminal case
filed by the Provincial Fiscal upon instructions of the Secretary of Justice to whom the case was
elevated for review, may refuse to grant the motion and insist on the arraignment and trial on the
merits.

On April 18, 1977 Assistant Fiscal Proceso K. de Gala with the approval of the Provincial Fiscal filed
an information for estafa against Mario Fl. Crespo in the Circuit Criminal Court of Lucena City which
was docketed as Criminal Case No. CCCIX-52 (Quezon) '77.1 When the case was set for arraigment
the accused filed a motion to defer arraignment on the ground that there was a pending petition for
review filed with the Secretary of Justice of the resolution of the Office of the Provincial Fiscal for the
filing of the information. In an order of August 1, 1977, the presiding judge, His Honor, Leodegario L.
Mogul, denied the motion. 2 A motion for reconsideration of the order was denied in the order of
August 5, 1977 but the arraignment was deferred to August 18, 1977 to afford time for petitioner to
elevate the matter to the appellate court. 3

A petition for certiorari and prohibition with prayer for a preliminary writ of injunction was filed by the
accused in the Court of Appeals that was docketed as CA-G.R. SP No. 06978. 4 In an order of
August 17, 1977 the Court of Appeals restrained Judge Mogul from proceeding with the arraignment
of the accused until further orders of the Court. 5 In a comment that was filed by the Solicitor General
he recommended that the petition be given due course. 6 On May 15, 1978 a decision was rendered
by the Court of Appeals granting the writ and perpetually restraining the judge from enforcing his
threat to compel the arraignment of the accused in the case until the Department of Justice shall
have finally resolved the petition for review. 7

On March 22, 1978 then Undersecretary of Justice, Hon.Catalino Macaraig, Jr., resolving the petition
for review reversed the resolution of the Office of the Provincial Fiscal and directed the fiscal to
move for immediate dismissal of the information filed against the accused. 8 A motion to dismiss for
insufficiency of evidence was filed by the Provincial Fiscal dated April 10, 1978 with the trial
court, 9 attaching thereto a copy of the letter of Undersecretary Macaraig, Jr. In an order of August 2,
1978 the private prosecutor was given time to file an opposition thereto.10 On November 24, 1978 the
Judge denied the motion and set the arraigniment stating:

ORDER

For resolution is a motion to dismiss this rase filed by the procuting fiscal premised on
insufficiency of evidence, as suggested by the Undersecretary of Justice, evident from Annex

26
 "A" of the motion wherein, among other things, the Fiscal is urged to move for dismissal for
the reason that the check involved having been issued for the payment of a pre-existing
obligation the Hability of the drawer can only be civil and not criminal.

The motion's thrust being to induce this Court to resolve the innocence of the accused on
evidence not before it but on that adduced before the Undersecretary of Justice, a matter
that not only disregards the requirements of due process but also erodes the Court's
independence and integrity, the motion is considered as without merit and therefore hereby
DENIED.

WHEREFORE, let the arraignment be, as it is hereby set for December 18, 1978 at 9:00
o'clock in the moming.

SO ORDERED. 11

The accused then filed a petition for certiorari, prohibition and mandamus with petition for the
issuance of preliminary writ of prohibition and/or temporary restraining order in the Court of Appeals
that was docketed as CA-G.R. No. SP-08777. 12 On January 23, 1979 a restraining order was issued
by the Court of Appeals against the threatened act of arraignment of the accused until further orders
from the Court. 13 In a decision of October 25, 1979 the Court of Appeals dismissed the petition and
lifted the restraining order of January 23, 1979. 14 A motion for reconsideration of said decision filed
by the accused was denied in a resolution of February 19, 1980. 15

Hence this petition for review of said decision was filed by accused whereby petitioner prays that
said decision be reversed and set aside, respondent judge be perpetually enjoined from enforcing
his threat to proceed with the arraignment and trial of petitioner in said criminal case, declaring the
information filed not valid and of no legal force and effect, ordering respondent Judge to dismiss the
said case, and declaring the obligation of petitioner as purely civil. 16

In a resolution of May 19, 1980, the Second Division of this Court without giving due course to the
petition required the respondents to comment to the petition, not to file a motiod to dismiss, within
ten (10) days from notice. In the comment filed by the Solicitor General he recommends that the
petition be given due course, it being meritorious. Private respondent through counsel filed his reply
to the comment and a separate conunent to the petition asking that the petition be dismissed. In the
resolution of February 5, 1981, the Second Division of this Court resolved to transfer this case to the
Court En Banc. In the resolution of February 26, 1981, the Court En Banc resolved to give due
course to the petition.

Petitioner and private respondent filed their respective briefs while the Solicitor General filed a
Manifestation in lieu of brief reiterating that the decision of the respondent Court of Appeals be
reversed and that respondent Judge be ordered to dismiss the information.

It is a cardinal principle that an criminal actions either commenced by complaint or by information

shall be prosecuted under the direction and control of the fiscal. 17 The institution of a criminal action
depends upon the sound discretion of the fiscal. He may or may not file the complaint or information,
follow or not fonow that presented by the offended party, according to whether the evidence in his
opinion, is sufficient or not to establish the guilt of the accused beyond reasonable doubt. 18 The
reason for placing the criminal prosecution under the direction and control of the fiscal is to prevent
malicious or unfounded prosecution by private persons. 19 It cannot be controlled by the
complainant. 20 Prosecuting officers under the power vested in them by law, not only have the
authority but also the duty of prosecuting persons who, according to the evidence received from the
complainant, are shown to be guilty of a crime committed within the jurisdiction of their office. 21 They

27
have equally the legal duty not to prosecute when after an investigation they become convinced that
the evidence adduced is not sufficient to establish a prima faciecase. 22

It is through the conduct of a preliminary investigation 23 that the fiscal determines the existence of a
puma facie case that would warrant the prosecution of a case. The Courts cannot interfere with the
fiscal's discretion and control of the criminal prosecution. It is not prudent or even permissible for a
Court to compel the fiscal to prosecute a proceeding originally initiated by him on an information, if
he finds that the evidence relied upon by him is insufficient for conviction. 24 Neither has the Court
any power to order the fiscal to prosecute or file an information within a certain period of time, since
this would interfere with the fiscal's discretion and control of criminal prosecutions. 25 Thus, a fiscal
who asks for the dismissal of the case for insufficiency of evidence has authority to do so, and
Courts that grant the same commit no error. 26 The fiscal may re-investigate a case and subsequently
move for the dismissal should the re-investigation show either that the defendant is innocent or that
his guilt may not be established beyond reasonable doubt. 27 In a clash of views between the judge
who did not investigate and the fiscal who did, or between the fiscal and the offended party or the
defendant, those of the Fiscal's should normally prevail. 28 On the other hand, neither an injunction,
preliminary or final nor a writ of prohibition may be issued by the courts to restrain a criminal
prosecution 29 except in the extreme case where it is necessary for the Courts to do so for the orderly
administration of justice or to prevent the use of the strong arm of the law in an op pressive and
vindictive manner. 30

However, the action of the fiscal or prosecutor is not without any limitation or control. The same is
subject to the approval of the provincial or city fiscal or the chief state prosecutor as the case maybe
and it maybe elevated for review to the Secretary of Justice who has the power to affirm, modify or
reverse the action or opinion of the fiscal. Consequently the Secretary of Justice may direct that a
motion to dismiss the rase be filed in Court or otherwise, that an information be filed in Court. 31

The filing of a complaint or information in Court initiates a criminal action. The Court thereby
acquires jurisdiction over the case, which is the authority to hear and determine the case. 32 When
after the filing of the complaint or information a warrant for the arrest of the accused is issued by the
trial court and the accused either voluntarily submited himself to the Court or was duly arrested, the
Court thereby acquired jurisdiction over the person of the accused. 33

The preliminary investigation conducted by the fiscal for the purpose of determining whether a prima
facie case exists warranting the prosecution of the accused is terminated upon the filing of the
information in the proper court. In turn, as above stated, the filing of said information sets in motion
the criminal action against the accused in Court. Should the fiscal find it proper to conduct a
reinvestigation of the case, at such stage, the permission of the Court must be secured. After such
reinvestigation the finding and recommendations of the fiscal should be submitted to the Court for
appropriate action. 34 While it is true that the fiscal has the quasi judicial discretion to determine
whether or not a criminal case should be filed in court or not, once the case had already been
brought to Court whatever disposition the fiscal may feel should be proper in the rase thereafter
should be addressed for the consideration of the Court, 35 The only qualification is that the action of
the Court must not impair the substantial rights of the accused. 36 or the right of the People to due
process of law. 36a

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.

28
However, one may ask, if the trial court refuses to grant the motion to dismiss filed by the fiscal upon
the directive of the Secretary of Justice will there not be a vacuum in the prosecution? A state
prosecutor to handle the case cannot possibly be designated by the Secretary of Justice who does
not believe that there is a basis for prosecution nor can the fiscal be expected to handle the
prosecution of the case thereby defying the superior order of the Secretary of Justice.

The answer is simple. The role of the fiscal or prosecutor as We all know is to see that justice is
1âwphi1

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

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

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

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

SO ORDERED.

Yap, Fernan, Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Padilla, Bidin,
Sarmiento and Cortes, JJ., concur.
Teehankee C.J., took no part.

29
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 113930 March 5, 1996

PAUL G. ROBERTS, JR., RODOLFO C. SALAZAR, LUIS LORENZO, SR., LUIS LORENZO, JR.,
AMAURY R. GUTIERREZ, BAYANI N. FABIC, JOSE YULO, JR., ESTEBAN B. PALANNUAYAN,
and WONG FONG FUI, petitioners,
vs.
THE COURT OF APPEALS, THE HON. MAXIMIANO ASUNCION, in his capacity as the Presiding
Judge of the Regional Trial Court, Quezon City, Branch 104, HON. APOLINARIO G. EXEVEA, HON.
HENRICK F. GINGOYON, and HON. PHILIP A. AGUINALDO, in their capacities as Members of the
Department of Justice "349" Committee, and the CITY PROSECUTOR OF QUEZON CITY,
respondents.

J. ROBERT DELGADO, petitioner-Intervenor.

DAVIDE, JR., J.:p

We are urged in this petition to set aside (a) the decision of the Court of Appeals of 28 September 1993 in CA-G.R. SP No. 31226,1 which
dismissed the petition therein on the ground that it has been "mooted with the release by the Department of Justice of its decision . . .
dismissing petitioners' petition for review"; (b) the resolution of the said court of 9 February 19942 denying the petitioners' motion to
reconsider the decision; (c) the order of 17 May 19933 of respondent Judge Maximiano C. Asuncion of Branch 104 of the Regional Trial
Court (RTC) of Quezon City in Criminal Case No. Q-93-43198 denying petitioners' motion to suspend proceedings and to hold in abeyance
the issuance of the warrants of arrest and the public prosecutor's motion to defer arraignment; and (d) the resolutions of 23 July 1993 and 3
February 19944 of the Department of Justice (DOJ) dismissing petitioners' petition for the review of the Joint Resolution of the Assistant City
Prosecutor of Quezon City and denying the motion to reconsider the dismissal, respectively.

The petitioners rely on the following grounds for the grant of the reliefs prayed for in this petition:

Respondent Judge acted with grave abuse of discretion when he ordered the arrest
of the petitioners without examining the record of the preliminary investigation and in
determining for himself on the basis thereof the existence of probable cause.

II

The Department of Justice "349" Committee acted with grave abuse of discretion
when it refused to review the City Prosecutor's Joint Resolution and dismissed
petitioner's appeal therefrom.

III

30
 The Court of Appeals acted with grave abuse of discretion when it upheld the subject
order directing the issuance of the warrants of arrest without assessing for itself
whether based on such records there is probable cause against petitioners.

IV

The facts on record do not establish prima facie probable cause and Criminal Case
No. Q-93-43198 should have been dismissed.5

The antecedents of this petition are not disputed.

Several thousand holders6 of "349" Pepsi crowns in connection with the Pepsi Cola Products Phils.,
Inc.'s (PEPSI's) Number Fever Promotion7 filed with the Office of the City Prosecutor of Quezon City
complaints against the petitioner's in their respective capacities as Presidents or Chief Executive
Officers, Chairman of the Board, Vice-Chairman of the Board, and Directors of PEPSI, and also
against other officials of PEPSI. The complaints respectively accuse the petitioners and the other
PEPSI officials of the following crimes: (a) estafa; (b) violation of R.A. No. 7394, otherwise known as
the Consumer Act of the Philippines; (c) violation of E.O. No. 913;8 and (d) violation of Act No. 2333,
entitled "An Act Relative to Untrue, Deceptive and Misleading Advertisements," as amended by Act
No. 3740.9

After appropriate proceedings, the investigating prosecutor, Ramon M. Gerona, released on 23

March 1993 a Joint Resolution10 where he recommended the filing of an information against the
petitioners and others for the violation of Article 318 of the Revised Penal Code and the dismissal of
the complaints for the violation of Article 315, 2(d) of the Revised Penal Code; R.A. No. 7394; Act
No. 2333, as amended by Act No. 3740; and E.O. No. 913. The dispositive portion thereof reads as
follows:

In view of all the foregoing, it is recommended that:

1. The attached information be filed against respondents Paul G. Roberts, Jr.,

Rodolfo C. Salazar, Rosemarie R. Vera, Luis F. Lorenzo, Sr., Luis P. Lorenzo, Jr., J.
Roberto Delgado, Amaury R. Gutierrez, Bayani N. Fabic, Jose Yulo, Jr., Esteban B.
Pacannuayan, Jr., Wong Fong Fui, Quintin J. Gomez, Jr. and Chito V. Gutierrez for
estafa under Article 318, Revised Penal Code, while the complaint for violation of
Article 315, 2(d), Revised Penal Code against same respondents Juanito R. Ignacio,
R. Sobong, R.O. Sinsuan, M.P. Zarsadias, L.G. Dabao, Jr., R.L. Domingo, N.N.
Bacsal, Jesus M. Manalastas, Janette P. Pio de Roda, Joaquin W. Sampaico,
Winefreda O. Madarang, Jack Gravey, Les G. Ham, Corazon Pineda, Edward S.
Serapio, Alex O. Caballes, Sandy Sytangco, Jorge W. Drysdale, Richard Blossom,
Pablo de Borja, Edmundo L. Tan, Joseph T. Cohen, Delfin Dator, Zosimo B. San
Juan, Joaquin Franco, Primitivo S. Javier, Jr., Luisito Guevarra, Asif H. Adil, Eugenio
Muniosguren, James Ditkoff and Timothy Lane be dismissed;

2. The complaints against all respondents for violation of R.A. 7394 otherwise known
as the Consumer Act of the Philippines and violation of Act 2333 as amended by Act
3740 and E.O. 913 be also dismissed for insufficiency of evidence, and

3. I.S. Nos. 92-7833; 92-8710 and 92-P-1065 involving Crowns Nos. 173; 401; and
117, 425, 703 and 373, respectively, alleged to be likewise winning ones be further
investigated to afford respondents a chance to submit their counter-evidence.11

31
On 6 April 1993, City Prosecutor Candido V. Rivera approved the recommendation with the
modification that Rosemarie Vera, Quintin Gomez, Jr., and Chito Gonzales be excluded from the
charge on the ground of insufficiency of evidence.12

The information for estafa attached to the Joint Resolution was approved (on 7 April 1993) by Ismael
P. Casabar, Chief of the Prosecution Division, upon authority of the City Prosecutor of Quezon City,
and was filed with the RTC of Quezon City on 12 April 1993. It was docketed as Criminal Case No.
Q-93-43198.13 The information reads as follows:

The undersigned 1st Assistant City Prosecutor accuses PAUL G. ROBERTS, JR.
RODOLFO C. SALAZAR, LUIS F. LORENZO, SR., LUIS P. LORENZO, JR., J.
ROBERTO DELGADO, AMAURY R. GUTIERREZ, BAYANI N. FABIC, JOSE YULO,
JR., ESTEBAN B. PACANNUAYAN, JR. and WONG FONG FUI, of the crime of
ESTAFA, committed as follows:

That in the month of February, 1992, in Quezon City, Philippines and for sometime
prior and subsequent thereto, the above-named
accused —

Paul G. Roberts, Jr. ) being then the Presidents

Rodolfo G. Salazar ) and Executive Officers

Luis F. Lorenzo, Sr. ) being then the Chairman

of the Board of Directors

Luis P. Lorenzo, Jr. ) being then the Vice

Chairman of the Board

J. Roberto Delgado )

Amaury R. Gutierrez ) being then Members of

Bayani N. Fabic ) the Board

Jose Yulo, Jr. )

Esteban B. Pacannuayan, )

Jr. and

Wong Fong Fui )

OF THE PEPSI COLA PRODUCTS PHILIPPINES, INC., CONSPIRING with one

another, with intent of gain, by means of deceit, fraudulent acts or false pretenses,
executed prior to or simultaneously with the commission of the fraud, did then and
there willfully, unlawfully and feloniously defraud the private complainants whose
names with their prizes claimed appear in the attached lists marked as Annexes "A"

32
 to "A-46"; "B" to "-33"; "C" to "C-281"; "D" to "D-238"; "E" to "E-30" and "F" to "F-244"
in the following manner: on the date and in the place aforementioned, said accused
pursuant to their conspiracy, launched the Pepsi Cola Products Philippines, Inc.
"Number Fever Promotion" from February 17 to May 8, 1992 later extended to May
11-June 12, 1992 and announced and advertised in the media that "all holders of
crowns and/or caps of Pepsi, Mirinda, Mountain Dew and Seven-up bearing the
winning 3-digit number will win the full amount of the prize printed on the
crowns/caps which are marked with a seven-digit security code as a measure
against tampering or faking of crowns and each and every number has its own
unique matching security code", enticing the public to buy Pepsi softdrinks with
aforestated alluring and attractive advertisements to become millionaires, and by
virtue of such representations made by the accused, the said complainants bought
Pepsi softdrinks, but, the said accused after their TV announcement on May 25,
1992 that the winning number for the next day was "349", in violation of their
aforecited mechanics, refused as they still refuse to redeem/pay the said Pepsi
crowns and/or caps presented to them by the complainants, who, among others,
were able to buy Pepsi softdrinks with crowns/caps bearing number "349" with
security codes L-2560-FQ and L-3560-FQ, despite repeated demands made by the
complainants, to their damage and prejudice to the extent of the amount of the prizes
respectively due them from their winning "349" crowns/caps, together with such
amounts they spent in going to and from the Office of Pepsi to claim their prizes and
such other amounts used in buying Pepsi softdrinks which the complainants normally
would not have done were it not for the false, fraudulent and deceitful posters of
Pepsi Cola Products Philippines, Inc.

CONTRARY TO LAW.

On 14 April 1993, the petitioners filed with the Office of the City Prosecutor a motion for the
reconsideration of the Joint Resolution14 alleging therein that (a) there was neither fraud in the
Number Fever Promotion nor deviation from or modification of the promotional rules approved by the
Department of Trade and Industry (DTI), for from the start of the promotion, it had always been
clearly explained to the public that for one to be entitled to the cash prize his crown must bear both
the winning number and the correct security code as they appear in the DTI list; (b) the complainants
failed to allege, much less prove with prima facie evidence, the specific overt criminal acts or
omissions purportedly committed by each of the petitioners; (c) the compromise agreement entered
into by PEPSI is not an admission of guilt; and (d) the evidence establishes that the promo was
carried out with utmost good faith and without malicious intent.

On 15 April 1993, the petitioners filed with the DOJ a Petition for Review15 wherein, for the same
grounds adduced in the aforementioned motion for reconsideration, they prayed that the Joint
Resolution be reversed and the complaints dismissed. They further stated that the approval of the
Joint Resolution by the City Prosecutor was not the result of a careful scrutiny and independent
evaluation of the relevant facts and the applicable law but of the grave threats, intimidation, and
actual violence which the complainants had inflicted on him and his assistant prosecutors.

On that same date, the petitioners filed in Criminal Case No. Q-93-43198 Motions to Suspend
Proceedings and to Hold in Abeyance Issuance of Warrants of Arrest on the ground that they had
filed the aforesaid Petition for Review.16

On 21 April 1993, acting on the Petition for Review, Chief State Prosecutor Zenon L. de Guia issued
a 1st Indorsement,17 directing the City Prosecutor of Quezon City to inform the DOJ whether the
petitioners have already been arraigned, and if not, to move in court for the deferment of further

33
proceedings in the case and to elevate to the DOJ the entire records of the case, for the case is
being treated as an exception pursuant to Section 4 of Department Circular No. 7 dated 25 January
1990.

On 22 April 1993, Criminal Case No. Q-93-41398 was raffle to Branch 104 of the RTC of Quezon
City.18

In the morning of 27 April 1993, private prosecutor Julio Contreras filed an Ex-Parte Motion for
Issuance of Warrants of Arrest. 19

In the afternoon of that same day, petitioner Paul Roberts, Jr., filed a Supplemental Urgent Motion to
Hold in Abeyance Issuance of Warrant of Arrest and to Suspend Proceedings.20 He stressed that the
DOJ had taken cognizance of the Petition for Review by directing the City Prosecutor to elevate the
records of I.S. No. P-4401 and its related cases and asserted that the petition for review was an
essential part of the petitioners' right to a preliminary investigation.

The next day, respondent Judge Asuncion, Presiding Judge of Branch 104 of the RTC of Quezon
City, issued an order advising the parties that his court would "be guided by the doctrine laid down
by the Supreme Court in the case of Crespo vs. Mogul, 151 SCRA 462 and not by the resolution of
the Department of Justice on the petition for review undertaken by the accused."21

On 30 April 1993, Assistant City Prosecutor Tirso M. Gavero filed with the trial court a Motion to
Defer Arraignment wherein he also prayed that "further proceedings be held in abeyance pending
final disposition by the Department of Justice."22

On 4 May 1993, Gavero filed an Amended Information, 23 accompanied by a corresponding

motion 24 to admit it. The amendments merely consist in the statement that the complainants therein
were only "among others" who were defrauded by the accused and that the damage or prejudice
caused amounted "to several billions of pesos, representing the amounts due them from their
winning '349' crowns/caps." The trial court admitted the amended information on the same date.25

Later, the attorneys for the different private complainants filed, respectively, an Opposition to Motion
to Defer Arraignment,26 and Objection and Opposition to Motion to Suspend Proceedings and to Hold
in Abeyance the Issuance of Warrants of Arrest.27

On 14 May 1993, the petitioners filed a Memorandum in Support of their Motion to Suspend
Proceedings and to Hold in Abeyance the Issuance of the Warrants of Arrest.28

On 17 May 1993, respondent Judge Asuncion issued the challenged order (1) denying the
petitioners' Motion to Suspend Proceedings and to Hold in Abeyance Issuance of Warrants of Arrest
and the public prosecutor's Motion to Defer Arraignment and (2) directing the issuance of the
warrants of arrest "after June 1993" and setting the arraignment on 28 June 1993.29 Pertinent
portions of the order read as follows:

In the Motion filed by the accused, it is alleged that on April 15, 1993, they filed a
petition for review seeking the reversal of the resolution of City Prosecutor of Quezon
City approving the filing of the case against the accused, claiming that:

1. The resolution constituting [sic] force and duress;

2. There was no fraud or deceit therefore there can be no estafa;

34
 3. No criminal overt acts by respondents were proved;

4. Pepsi nor the accused herein made no admission of guilt before

the Department of Trade and Industry;

5. The evidence presented clearly showed no malicious intent on the

part of the accused.

Trial Prosecutor Tirso M. Gavero in his Motion to Defer Arraignment averred that
there is a pending petition for review with the Department of Justice filed by the
accused and the Office of the City Prosecutor was directed, among other things, to
cause for the deferment of further proceedings pending final disposition of said
Petition by the Department of Justice.

The motions filed by the accused and the Trial Prosecutor are hereby DENIED.

This case is already pending in this Court for trial. To follow whatever opinion the
Secretary of Justice may have on the matter would undermine the independence and
integrity of this Court. This Court is still capable of administering justice.

The Supreme Court in the case of Crespo vs. Mogul (SCRA 151, pp. 471-472) stated
as follows:

In order therefor to avoid such a situation whereby the opinion of the

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

WHEREFORE, let warrant of arrest be issued after June 21, 1993, and arraignment
be set on June 28, 1993, at 9:30 in the morning.

On 7 June 1993, the petitioners filed with the Court of Appeals a special civil action for certiorari and
prohibition with application for a temporary restraining order,30 which was docketed as CA-G.R. SP
No. 31226. They contended therein that respondent Judge Asuncion had acted without or in excess
of jurisdiction or with grave abuse of discretion in issuing the aforementioned order of 17 May 1993
because

I. RESPONDENT JUDGE FAILED TO EXAMINE THE RECORD OF PRELIMINARY

INVESTIGATION BEFORE ORDERING THE ARREST OF PETITIONERS.

II. THERE IS NO PROBABLE CAUSE TO HOLD PETITIONERS CRIMINALLY

LIABLE FOR ESTAFA, OTHER DECEITS, OR ANY OTHER OFFENSE.

III. THE PROCEEDINGS BELOW SHOULD HAVE BEEN SUSPENDED TO AWAIT

THE SECRETARY OF JUSTICE'S RESOLUTION OF PETITIONERS' APPEAL,
AND

35
 IV. THERE IS NO OTHER PLAIN, SPEEDY AND ADEQUATE REMEDY IN THE
ORDINARY COURSE OF LAW.

On 15 June 1993, the Court of Appeals issued a temporary restraining order to maintain the status
quo.31 In view thereof; respondent Judge Asuncion issued an order on 28 June 199332 postponing
indefinitely the arraignment of the petitioners which was earlier scheduled on that date.

On 28 June 1993, the Court of Appeals heard the petitioners' application for a writ of preliminary
injunction, granted the motion for leave to intervene filed by J. Roberto Delgado, and directed the
Branch Clerk of Court of the RTC of Quezon City to elevate the original records of Criminal Case No.
4-93-43198.33

Upon receipt of the original records of the criminal case, the Court of Appeals found that a copy of
the Joint Resolution had in fact been forwarded to, and received by, the trial court on 22 April 1993,
which fact belied the petitioners' claim that the respondent Judge had not the slightest basis at all for
determining probable cause when he ordered the issuance of warrants of arrest. It ruled that the
Joint Resolution "was sufficient in itself to have been relied upon by respondent Judge in convincing
himself that probable cause indeed exists for the purpose of issuing the corresponding warrants of
arrest"; and that the "mere silence of the records or the absence of any express declaration" in the
questioned order as to the basis of such finding does not give rise to an adverse inference, for the
respondent Judge enjoys in his favor the presumption of regularity in the performance of his official
duty. The Court of Appeals then issued a resolution34 denying the application for a writ of preliminary
injunction.

On 8 June 1993, the petitioners filed a motion to reconsider35 the aforesaid resolution. The Court of
Appeals required the respondents therein to comment on the said motion.36

On 3 August 1993, the counsel for the private complainants filed in CA-G.R. SP No. 31226 a
Manifestation3 7informing the court that the petitioners' petition for review filed with the DOJ was
dismissed in a resolution dated 23 July 1993. A copy 38 of the resolution was attached to the
Manifestation.

On 21 September 1993, the public respondents filed in CA-G.R. SP No. 31226 a motion to dismiss
the petition39 on the ground that it has become moot and academic in view of the dismissal by the
DOJ of the petitioners' petition to review the Joint Resolution. The dismissal by the DOJ is founded
on the following exposition:

You questioned the said order of the RTC before the Court of Appeals and prayed for
the issuance of a writ of preliminary injunction to restrain the Trial Judge from issuing
any warrant of arrest and from proceeding with the arraignment of the accused. The
appellate court in a resolution dated July 1, 1993, denied your petition.

In view of the said developments, it would be an exercise in futility to continue

reviewing the instant cases for any further action on the part of the Department would
depend on the sound discretion of the Trial Court. The denial by the said court of the
motion to defer arraignment filed at our instance was clearly an exercise of its
discretion. With the issuance of the order dated May 17, 1993, Trial Court was in
effect sending a signal to this Department that "the determination of the case is within
its exclusive jurisdiction and competence." The rule is that ". . . once a complaint or
information is filed in Court, any disposition of the case as to 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

36
 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. .
. ." (Crespo vs. Mogul, 151 SCRA 462).40

On 28 September 1993, the Court of Appeals promulgated a decision 41 dismissing the petition
because it had been "mooted with the release by the Department of Justice of its decision . . .
dismissing petitioners' petition for review by inerrantly upholding the criminal court's exclusive and
unsupplantable authority to control the entire course of the case brought against petitioners,
reiterating with approval the dictum laid down in the 'Crespo' case."

The petitioners filed a motion to reconsider the DOJ's dismissal of the petition citing therein its
resolutions in other similar cases which were favorable to the petitioners and adverse to other "349"
Pepsi crowns holders.

In its resolution of 3 February 1994, the DOJ, through its "349" Committee, denied the motion and
stated: "The instant petition is different from the other petitions resolved by this Department in similar
cases from
the provinces. In the latter petitions, the complaints against herein respondents [sic]42 were dismissed
inasmuch as the informations have not yet been filed or even if already filed in court, the
proceedings have been suspended by the courts to await the outcome of the appeal pending with
this Department."43

The petitioners likewise filed a motion to reconsider44 the aforesaid Court of Appeals' decision, which
the said court denied in its resolution 45 of 9 February 1994. Hence, the instant petition.

The First Division of this Court denied due course to this petition in its resolution of 19 September
1994.46

On 7 October 1994, the petitioners filed a motion for the

reconsideration 4 7 of the aforesaid resolution. Acting thereon, the First Division required the
respondents to comment thereon.

Later, the petitioners filed a supplemental motion for reconsideration48 and a motion to refer this case
to the Court en banc. 49 In its resolution of 14 November 1994,50 the First Division granted the latter
motion and required the respondents to comment on the supplemental motion for reconsideration.

In the resolution of 24 November 1994, the Court en banc accepted the referral.

On 10 October 1995, after deliberating on the motion for reconsideration and the subsequent
pleadings in relation thereto, the Court en banc granted the motion for reconsideration; reconsidered
and set aside the resolution of 19 September 1994; and reinstated the petition. It then considered
the case submitted for decision, "since the parties have exhaustively discussed the issues in their
pleadings, the original records of Criminal Case No. Q-93-43198 and of CA-G.R. SP No. 31226 had
been elevated to this Court, and both the petitioners and the Office of the Solicitor General pray, in
effect, that this Court resolve the issue of probable cause on the basis thereof."

The pleadings of the parties suggest for this Court's resolution the following key issues:

1. Whether public respondent Judge Asuncion committed grave abuse of discretion

in denying, on the basis of Crespo vs. Mogul, the motions to suspend proceedings

37
 and hold in abeyance the issuance of warrants of arrest and to defer arraignment
until after the petition for review filed with the DOJ shall have been resolved.

2. Whether public respondent Judge Asuncion committed grave abuse of discretion

in ordering the issuance of warrants of arrest without examining the records of the
preliminary investigation.

3. Whether the DOJ, through its "349" Committee, gravely abused its discretion in
dismissing the petition for review on the following bases: (a) the resolution of public
respondent Court of Appeals denying the application for a writ of preliminary
injunction and (b) of public respondent Asuncion's denial of the abovementioned
motions.

4. Whether public respondent Court of Appeals committed grave abuse of discretion

(a) in denying the motion for a writ of preliminary injunction solely on the ground that
public respondent Asuncion had already before him the Joint Resolution of the
investigating prosecutor when he ordered the issuance of the warrants of arrest, and
(b) in ultimately dismissing the petition on the ground of mootness since the DOJ had
dismissed the petition for review.

5. Whether this Court may determine in this proceedings the existence of probable
cause either for the issuance of warrants of arrest against the petitioners or for their
prosecution for the crime of estafa.

We resolve the first four issues in the affirmative and the fifth, in the negative.

I.

There is nothing in Crespo vs. Mogul51 which bars the DOJ from taking cognizance of an appeal, by
way 'of a petition for review, by an accused in a criminal case from an unfavorable ruling of the
investigating prosecutor. It merely advised the DOJ to, "as far as practicable, refrain from
entertaining a petition for review or appeal from the action of the fiscal, when the complaint or
information has already been filed in Court." More specifically, it stated:

In order therefore to avoid such a situation whereby the opinion of the Secretary of
Justice who reviewed the action of the fiscal may be disregarded by the trial court,
the Secretary of Justice should, as far as practicable, refrain from entertaining a
petition for review or appeal from the action of the fiscal, when the complaint or
information has already been filed in Court. The matter should, be left entirely for the
determination of the Court.52

In Marcelo vs. Court of Appeals,53 this Court explicitly declared:

Nothing in the said ruling forecloses the power or authority of the Secretary of Justice
to review resolutions of his subordinates in criminal cases. 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.

38
Crespo could not have intended otherwise without doing violence to, or repealing, the last paragraph
of Section 4, Rule 112 of the Rules of Court54 which recognizes the authority of the Secretary of
Justice to reverse the resolution of the provincial or city prosecutor or chief state prosecutor upon
petition by a proper party.

Pursuant to the said provision, the Secretary of Justice had promulgated the rules on appeals from
resolutions in preliminary investigation. At the time the petitioners filed their petition for the review of
the Joint Resolution of the investigating prosecutor, the governing rule was Circular No. 7, dated 25
January 1990. Section 2 thereof provided that only resolutions dismissing a criminal complaint may
be appealed to the Secretary of Justice. Its Section 4, 55however, provided an exception, thus
allowing, upon a showing of manifest error or grave abuse of discretion, appeals from resolutions
finding probable cause, provided that the accused has not been arraigned.

The DOJ gave due course to the petitioners' petition for review as an exception pursuant to Section
4 of Circular No. 7.

Meanwhile, the DOJ promulgated on 30 June 1993 Department Order No. 22356 which superseded
Circular No. 7. This Order, however, retained the provisions of Section 1 of the Circular on
appealable cases and Section 4 on the non-appealable cases and the exceptions thereto.

There is nothing in Department Order No. 223 which would warrant a recall of the previous action of
the DOJ giving due course to the petitioners' petition for review. But whether the DOJ would affirm or
reverse the challenged Joint Resolution is still a matter of guesswork. Accordingly, it was premature
for respondent Judge Asuncion to deny the motions to suspend proceedings and to defer
arraignment on the following grounds:

This case is already pending in this Court for trial. To follow whatever opinion the
Secretary of Justice may have on the matter would undermine the independence and
integrity of this Court. This Court is still capable of administering justice.

The real and ultimate test of the independence and integrity of his court is not the filing of the
aforementioned motions at that stage of the proceedings but the filing of a motion to dismiss or to
withdraw the information on the basis of a resolution of the petition for review reversing the Joint
Resolution of the investigating prosecutor. Before that time, the following pronouncement
in Crespo did not yet truly become relevant or applicable:

The rule therefore in this jurisdiction is that once a complaint or information is filed in
Court any disposition of the case as its dismissal or the conviction or acquittal of the
accused rests in the sound discretion of the court. Although the fiscal retains the
direction and control of the prosecution of criminal cases even while the case is
already in court he cannot impose his opinion on the trial court. The court is the best
and sole judge on what to do with the case before it. The determination of the case is
within its exclusive jurisdiction and competence. A motion to dismiss the case filed by
the fiscal should be addressed to the Court who has the option to grant or deny the
same. It does not matter if this is done before or after the arraignment of the accused
or that the motion was filed after a reinvestigation or upon instructions of the
Secretary of Justice who reviewed the records of the investigation.57

However, once a motion to dismiss or withdraw the information is filed the trial judge may
grant or deny it, not out of subservience to the Secretary of Justice, but in faithful exercise of
judicial prerogative. This Court pertinently stated so in Martinez vs. Court of Appeals:58

39
 Whether to approve or disapprove the stand taken by the prosecution is not the
exercise of discretion required in cases like this. The trial judge must himself be
convinced that there was indeed no sufficient evidence against the accused, and this
conclusion can be arrived at only after an assessment of the evidence in the
possession of the prosecution. What was imperatively required was the trial judge's
own assessment of such evidence, it not being sufficient for the valid and proper
exercise of judicial discretion merely to accept the prosecution's word for its
supposed insufficiency.

As aptly observed the Office of the Solicitor General, in failing to make an

independent finding of the merits of the case and merely anchoring the dismissal on
the revised position of the prosecution, the trial judge relinquished the discretion he
was duty bound to exercise. In effect, it was the prosecution, through the Department
of Justice which decided what to do and not the court which was reduced to a mere
rubber stamp in violation of the ruling in Crespo vs. Mogul.

II.

Section 2, Article III of the present Constitution provides that 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.

Under existing laws, warrants of arrest may be issued (1) by the Metropolitan Trial Courts (MeTCs)
except those in the National Capital Region, Municipal Trial Courts (MTCs), and Municipal Circuit
Trial Courts (MCTCs) in cases falling within their exclusive original jurisdiction;59 in cases covered by
the rule on summary procedure where the accused fails to appear when required;60 and in cases filed
with them which are cognizable by the Regional Trial Courts (RTCs);61 and (2) by the Metropolitan
Trial Courts in the National Capital Region (MeTCs-NCR) and the RTCs in cases filed with them
after appropriate preliminary investigations conducted by officers authorized to do so other than
judges of MeTCs, MTCs and MCTCs.62

As to the first, a warrant can issue only if the judge is satisfied after an examination in writing and
under oath of the complainant and the witnesses, in the form of searching questions and answers,
that a probable cause exists and that there is a necessity of placing the respondent under immediate
custody in order not to frustrate the ends of justice.

As to the second, this Court held in Soliven vs. Makasiar 63 that the judge is not required to
personally examine the complainant and the witnesses, but

[f]ollowing established doctrine and procedure, he shall: (1) personally evaluate the
report and supporting documents submitted by the fiscal regarding the existence of
probable cause and, on the basis thereof; issue a warrant of arrest; 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
conclusion as to the existence of probable cause.64

Sound policy supports 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." It must be emphasized that judges
must not rely solely on the report or resolution of the fiscal (now prosecutor); they must
evaluate the report and the supporting document. In this sense, the aforementioned
requirement has modified paragraph 4(a) of Circular No. 12 issued by this Court on 30 June

40
 1987 prescribing the Guidelines on Issuance of Warrants of Arrest under Section 2, Article III
of the 1987 Constitution, which provided in part as follows:

4. In satisfying himself of the existence of a probable cause for the issuance of a

warrant of arrest, the judge, following established doctrine and procedure, may
either:

(a) Rely upon the fiscal's certification of the existence of probable

cause whether or not the case is cognizable only by the Regional
Trial Court and on the basis thereof, issue a warrant of arrest. . . .

This requirement of evaluation not only of the report or certification of the fiscal but also of the
supporting documents was further explained in People vs. Inting,65 where this Court specified what
the documents may consist of, viz., "the affidavits, the transcripts of stenographic notes (if any), and
all other supporting documents behind the Prosecutor's certification which are material in assisting
the Judge to make his determination" of probable cause. Thus:

We emphasize the important features of the constitutional mandate that ". . . no

search warrant or warrant of arrest shall issue except upon probable cause to be
determined personally by the judge . . ." (Article III, Section 2, Constitution).

First, the determination of probable cause is a function of the Judge. It is not for the
Provincial Fiscal or Prosecutor nor the Election Supervisor to ascertain. Only the
Judge and the Judge alone makes this determination.

Second, the preliminary inquiry made by a Prosecutor does not bind the Judge. It
merely assists him to make the determination of probable cause. The Judge does not
have to follow what the Prosecutor presents to him. By itself, the Prosecutor's
certification of probable cause is ineffectual. It is the report, the affidavits, the
transcripts of stenographic notes (if any), and all other supporting documents behind
the Prosecutor's certification which are material in assisting the Judge to
make his determination.

In adverting to a statement in People vs. Delgado66 that the judge may rely on the resolution of the
Commission on Elections (COMELEC) to file the information by the same token that it may rely on
the certification made by the prosecutor who conducted the preliminary investigation in the issuance
of the warrant of arrest, this Court stressed in Lim vs. Felix67 that

Reliance on the COMELEC resolution or the Prosecutor's certification presupposes

that the records of either the COMELEC or the Prosecutor have been submitted to
the Judge and he relies on the certification or resolution because the records of the
investigation sustain the recommendation. The warrant issues not on the strength of
the certification standing alone but because of the records which sustain it.

And noting that judges still suffer from the inertia of decisions and practice under the 1935
and 1973 Constitutions, this Court found it necessary to restate the rule "in greater detail and
hopefully clearer terms." It then proceeded to do so, thus:

We reiterate the ruling in Soliven vs. Makasiar that the Judge does not have to
personally examine the complainant and his witnesses. The Prosecutor can perform
the same functions as a commissioner for the taking of the evidence. However, there

41
 should be a report and necessary documents supporting the Fiscal's bare
certification. All of these should be before the Judge.

The extent of the Judge's personal examination of the report and its annexes
depends on the circumstances of each case. We cannot determine beforehand how
cursory or exhaustive the Judge's examination should be. The Judge has to exercise
sound discretion for, after all, the personal determination is vested in the Judge by
the Constitution. It can be as brief as or detailed as the circumstances of each case
require. To be sure, the Judge must go beyond the Prosecutor's certification and
investigation report whenever necessary. He should call for the complainant and
witnesses themselves to answer the court's probing questions when the
circumstances of the case so require.

This Court then set aside for being null and void the challenged order of respondent Judge
Felix directing the issuance of the warrants of arrest against petitioners Lim, et al., solely on
the basis of the prosecutor's certification in the informations that there existed probable
cause "without having before him any other basis for his personal determination of the
existence of a probable cause."

In Allado vs. Diokno,68 this Court also ruled that "before issuing a warrant of arrest, the judge
must satisfy himself that based on the evidence submitted there is sufficient proof that a
crime has been committed and that the person to be arrested is probably guilty thereof."

In the recent case of Webb vs. De Leon,69 this Court rejected the thesis of the petitioners of absence
of probable cause and sustained the investigating panel's and the respondent Judge's findings of
probable cause. After quoting extensively from Soliven vs. Makasiar,70 this Court explicitly pointed
out:

Clearly then, the Constitution, the Rules of Court, and our case law 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 as well as the counter-affidavits of the petitioners. Apparently, the
painstaking recital and analysis of the parties' evidence made in the DOJ Panel
Report satisfied both judges that there is probable cause to issue warrants of arrest
against petitioners. Again, we stress that before issuing warrants of arrest, judges
merely determine personally the probability, not the certainty of the 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. (emphasis supplied)

42
The teachings then of Soliven, Inting, Lim, Allado, and Webb reject the proposition that the
investigating prosecutor's certification in an information or his resolution which is made the basis for
the filing of the information, or both, would suffice in the judicial determination of probable cause for
the issuance of a warrant of arrest. In Webb, this Court assumed that since the respondent Judges
had before them not only the 26-page resolution of the investigating panel but also the affidavits of
the prosecution witnesses and even the counter-affidavits of the respondents, they (judges) made
personal evaluation of the evidence attached to the records of the case.

Unfortunately, in Criminal Case No. Q-93-43198, nothing accompanied the information upon its filing
on 12 April 1993 with the trial court. As found by the Court of Appeals in its resolution of 1 July 1993,
a copy of the Joint Resolution was forwarded to, and received by, the trial court only on 22 April
1993. And as revealed by the certification71 of Branch Clerk of Court Gibson Araula, Jr., no affidavits
of the witnesses, transcripts of stenographic notes of the proceedings during the preliminary
investigation, or other documents submitted in the course thereof were found in the records of
Criminal Case No. Q-93-43198 as of 19 May 1993. Clearly, when respondent Judge Asuncion
issued the assailed order of 17 May 1993 directing, among other things, the issuance of warrants of
arrest, he had only the information, amended information, and Joint Resolution as bases thereof. He
did not have the records or evidence supporting the prosecutor's finding of probable cause. And
strangely enough, he made no specific finding of probable cause; he merely directed the issuance of
warrants of arrest "after June 21, 1993." It may, however, be argued that the directive presupposes a
finding of probable cause. But then compliance with a constitutional requirement for the protection of
individual liberty cannot be left to presupposition, conjecture, or even convincing logic.

III.

As earlier stated, per its 1st Indorsement of 21 April 1993, the DOJ gave due course to the
petitioners' petition for review pursuant to the exception provided for in Section 4 of Circular No. 7,
and directed the Office of the City Prosecutor of Quezon City to forward to the Department the
records of the cases and to file in court a motion for the deferment of the proceedings. At the time it
issued the indorsement, the DOJ already knew that the information had been filed in court, for which
reason it directed the City Prosecutor to inform the Department whether the accused have already
been arraigned and if not yet arraigned, to move to defer further proceedings. It must have been fully
aware that, pursuant to Crespo vs. Mogul, a motion to dismiss a case filed by the prosecution either
as a consequence of a reinvestigation or upon instructions of the Secretary of Justice after a review
of the records of the investigation is addressed to the trial court, which has the option to grant or to
deny it. Also, it must have been still fresh in its mind that a few months back it had dismissed for lack
of probable cause other similar complaints of holders of "349" Pepsi crowns.72 Thus, its decision to
give due course to the petition must have been prompted by nothing less than an honest conviction
that a review of the Joint Resolution was necessary in the highest interest of justice in the light of the
special circumstances of the case. That decision was permissible within the "as far as practicable"
criterion in Crespo.

Hence, the DOJ committed grave abuse of discretion when it executed on 23 July 1993 a
unilateral volte-face, which was even unprovoked by a formal pleading to accomplish the same end,
by dismissing the petition for review. It dismissed the petition simply because it thought that a review
of the Joint Resolution would be an exercise in futility in that any further action on the part of the
Department would depend on the sound discretion of the trial court, and that the latter's denial of the
motion to defer arraignment filed at the instance of the DOJ was clearly an exercise of that discretion
or was, in effect, a signal to the Department that the determination of the case is within the court's
exclusive jurisdiction and competence. This infirmity becomes more pronounced because the reason
adduced by the respondent Judge for his denial of the motions to suspend proceedings and hold in
abeyance issuance of warrants of arrest and to defer arraignment finds, as yet, no support
in Crespo.

43
 IV.

If the only issue before the Court of Appeals were the denial of the petitioners' Motion to Suspend
Proceedings and to Hold in Abeyance Issuance of Warrants of Arrest and the public prosecutor's
Motion to Defer Arraignment, which were both based on the pendency before the DOJ of the petition
for the review of the Joint Resolution, the dismissal of CA-G.R. SP No. 31226 on the basis of the
dismissal by the DOJ of the petition for review might have been correct. However, the petition
likewise involved the issue of whether respondent Judge Asuncion gravely abused his discretion in
ordering the issuance of warrants of arrest despite want of basis. The DOJ's dismissal of the petition
for review did not render moot and academic the latter issue.

In denying in its resolution of 1 July 1993 the petitioners' application for a writ of preliminary
injunction to restrain respondent Judge Asuncion from issuing warrants of arrest, the Court of
Appeals justified its action in this wise:

The Joint Resolution was sufficient in itself to have been relied upon by respondent
judge in convincing himself that probable cause indeed exists for the purpose of
issuing the corresponding warrants of arrest. The mere silence of the records or the
absence of any express declaration in the questioned Order of May 17, 1993 as to
where the respondent Judge based his finding of probable cause does not give rise
to any adverse inference on his part. The fact remains that the Joint Resolution was
at respondent Judge's disposal at the time he issued the Order for the issuance of
the warrants of arrest. After all, respondent Judge enjoys in his favor the presumption
of regularity in the performance of official actuations. And this presumption prevails
until it is overcome by clear and convincing evidence to the contrary. Every
reasonable intendment will be made in support of the presumption, and in case of
doubt as to an officer's act being lawful or unlawful it should be construed to be
lawful. (31 C.J.S., 808-810. See also Mahilum, et al. vs. Court of Appeals, 17 SCRA
482; People vs. Cortez, 21 SCRA 1228; Government of the P.I. vs. Galarosa, 36
Phil. 338).

We are unable to agree with this disquisition, for it merely assumes at least two things: (1) that
respondent Judge Asuncion had read and relied on the Joint Resolution and (2) he was convinced
that probable cause exists for the issuance of the warrants of arrest against the petitioners. Nothing
in the records provides reasonable basis for these assumptions. In his assailed order, the
respondent Judge made no mention of the Joint Resolution, which was attached to the records of
Criminal Case No. Q-93-43198 on 22 April 1993. Neither did he state that he found probable cause
for the issuance of warrants of arrest. And, for an undivinable reason, he directed the issuance of
warrants of arrest only "after June 21, 1993." If he did read the Joint Resolution and, in so reading,
found probable cause, there was absolutely no reason at all to delay for more than one month the
issuance of warrants of arrest. The most probable explanation for such delay could be that the
respondent Judge had actually wanted to wait for a little while for the DOJ to resolve the petition for
review.

It is, nevertheless, contended in the dissenting opinion of Mr. Justice Reynato S. Puno that whatever
doubts may have lingered on the issue of probable cause was dissolved when no less than the
Court of Appeals sustained the finding of probable cause made by the respondent Judge after an
evaluation of the Joint Resolution. We are not persuaded with that opinion. It is anchored on
erroneous premises. In its 1 July 1993 resolution, the Court of Appeals does not at all state that it
either sustained respondent Judge Asuncion's finding of probable cause, or found by itself probable
cause. As discussed above, it merely presumed that Judge Asuncion might have read the Joint
Resolution and found probable cause from a reading thereof. Then too, that statement in the

44
dissenting opinion erroneously assumes that the Joint Resolution can validly serve as sufficient
basis for determining probable cause. As stated above, it is not.

V.

In criminal prosecutions, the determination of probable cause may either be an executive or a

judicial prerogative. In People vs. Inting,73 this Court aptly stated:

And third, Judges and Prosecutors alike should distinguish the preliminary inquiry
which determines probable cause for the issuance of a warrant of arrest from a
preliminary investigation proper which ascertains whether the offender should be
held for trial or released. Even if the two inquiries are conducted in the course of one
and the same proceeding, there should be no confusion about the objectives. The
determination of probable cause for the warrant of arrest is made by the Judge. The
preliminary investigation proper — whether or not there is reasonable ground to
believe that the accused is guilty of the offense charged and, therefore, whether or
not he should be subjected to the expense, rigors and embarrassment of
trial — is the function of the Prosecutor.

....

We reiterate that preliminary investigation should be distinguished as to whether it is

an investigation for the determination of a sufficient ground for the filing of the
information or it is an investigation for the determination of a probable cause for the
issuance of a warrant of arrest. The first kind of preliminary investigation is executive
in nature. It is part of the prosecution's job. The second kind of preliminary
investigation which is more properly called preliminary examination is judicial in
nature and is lodged with the judge. . . .

Ordinarily, the determination of probable cause is not lodged with this Court. Its duty in an
appropriate case is confined to the issue of whether the executive or judicial determination, as the
case may be, of probable cause was done without or in excess of jurisdiction or with grave abuse of
discretion amounting to want of jurisdiction. This is consistent with the general rule that criminal
prosecutions may not be restrained or stayed by injunction, preliminary or final. There are, however,
exceptions to this rule. Among the exceptions are enumerated in Brocka vs. Enrile74 as follows:

a. To afford adequate protection to the constitutional rights of the accused

(Hernandez vs. Albano, et al., L-19272, January 25, 1967, 19 SCRA 95);

b. When necessary for the orderly administration of justice or to avoid oppression or

multiplicity of actions (Dimayuga, et al. vs. Fernandez, 43 Phil. 304; Hernandez vs.
Albano, supra; Fortun vs. Labang, et al., L-38383, May 27, 1981, 104 SCRA 607);

c. When there is a pre-judicial question which is sub judice (De Leon vs. Mabanag,
70 Phil. 202);

d. When the acts of the officer are without or in excess of authority (Planas vs. Oil, 67
Phil. 62);

e. Where the prosecution is under an invalid law, ordinance or regulation (Young vs.
Rafferty, 33 Phil. 556; Yu Cong Eng vs. Trinidad, 47 Phil. 385, 389);

45
 f. When double jeopardy is clearly apparent (Sangalang vs. People and Avendia, 109
Phil. 1140);

g. Where the court has no jurisdiction over the offense (Lopez vs. City Judge, L-
25795, October 29, 1966, 18 SCRA 616);

h. Where it is a case of persecution rather than prosecution (Rustia vs. Ocampo, CA-
G.R. No. 4760, March 25, 1960);

i. Where the charges are manifestly false and motivated by the lust for vengeance
(Recto vs. Castelo, 18 L.J. [1953], cited in Rañoa vs. Alvendia, CA-G.R. No. 30720-
R, October 8, 1962; Cf. Guingona, et al. vs. City Fiscal, L-60033, April 4, 1984, 128
SCRA 577); and

j. When there is clearly no prima facie case against the accused and a motion to
quash on that ground has been denied (Salonga vs. Paño, et al., L- 59524, February
18, 1985, 134 SCRA 438).

7. Preliminary injunction has been issued by the Supreme Court to prevent to

threatened unlawful arrest of petitioners (Rodriguez vs. Castelo, L- 6374, August 1,
1953). (cited in Regalado, Remedial Law Compendium, p. 188, 1988 Ed.)

In these exceptional cases, this Court may ultimately resolve the existence or non-existence
of probable cause by examining the records of the preliminary investigation, as it did
in Salonga vs. Paño,75 Allado, and Webb.

There can be no doubt that, in light of the several thousand private complainants in Criminal Case
No. Q-93-43198 and several thousands more in different parts of the country who are similarly
situated as the former for being holders of "349" Pepsi crowns, any affirmative holding of probable
cause in the said case may cause or provoke, as justly feared by the petitioners, the filing of several
thousand cases in various courts throughout the country. Inevitably, the petitioners would be
exposed to the harassments of warrants of arrest issued by such courts and to huge expenditures
for premiums on bailbonds and for travels from one court to another throughout the length and
breadth of the archipelago for their arraignments and trials in such cases. Worse, the filing of these
staggering number of cases would necessarily affect the trial calendar of our overburdened judges
and take much of their attention, time, and energy, which they could devote to other equally, if not
more, important cases. Such a frightful scenario would seriously affect the orderly administration of
justice, or cause oppression or multiplicity of actions — a situation already long conceded by this
Court to be an exception to the general rule that criminal prosecutions may not be restrained or
stayed by injunction.76

We shall not, however, reevaluate the evidence to determine if indeed there is probable cause for
the issuance of warrants of arrest in Criminal Case No. Q-93-43298. For, as earlier stated, the
respondent Judge did not, in fact, find that probable cause exists, and if he did he did not have the
basis therefor as mandated by Soliven, Inting, Lim, Allado, and even Webb. Moreover, the records of
the preliminary investigation in Criminal Case No. Q-93-43198 are not with this Court. They were
forwarded by the Office of the City Prosecutor of Quezon City to the DOJ in compliance with the
latter's 1st Indorsement of 21 April 1993. The trial court and the DOJ must be required to perform
their duty.

WHEREFORE, the instant petition is GRANTED and the following are hereby SET ASIDE:

46
 (a) Decision of 28 September 1993 and Resolution of 9 February 1994 of respondent
Court of Appeals in CA-G.R. SP No. 31226;

(b) The Resolutions of the "349" Committee of the Department of Justice of 23 July
1993 dismissing the petitioners' petition for review and of 3 February 1994 denying
the motion to reconsider the dismissal; and

(c) The Order of respondent Judge Maximiano C. Asuncion of 17 May 1993 in

Criminal Case No. Q-93-43198.

The Department of Justice is DIRECTED to resolve on the merits, within sixty (60) days from notice
of this decision, the petitioners' petition for the review of the Joint Resolution of Investigating
Prosecutor Ramon Gerona and thereafter to file the appropriate motion or pleading in Criminal Case
No. Q-93-43198, which respondent Judge Asuncion shall then resolve in light of Crespo vs.
Mogul, Soliven vs. Makasiar, People vs. Inting, Lim vs. Felix,Allado vs. Diokno, and Webb vs. De
Leon.

In the meantime, respondent Judge Asuncion is DIRECTED to cease and desist from further
proceeding with Criminal Case No. Q-93-43198 and to defer the issuances of warrants of arrest
against the petitioners.

No pronouncement as to costs.

SO ORDERED.

Padilla, Bellosillo, Vitug and Hermosisima, Jr., JJ., concur.

Kapunan, J., concurs in the result.

Francisco and Panganiban, JJ., took no part.

Separate Opinions

NARVASA, C.J., concurring:

I agree with the disposition of the case proposed by Mr. Justice Hilario G. Davide in his dissenting
opinion, that the determination of whether or not probable cause exists to warrant the prosecution in
court of the petitioners should be consigned and entrusted to the Department of Justice, as reviewer
of the findings of the public prosecutors concerned.

47
In this special civil action, this Court is being asked to assume the function of a public prosecutor. It
is being asked to determine whether probable cause exists as regards petitioners. More concretely,
the Court is being asked to examine and assess such evidence as has thus far been submitted by
the parties and, on the basis thereof, make a conclusion as to whether or not it suffices "to engender
a well founded belief that a crime has been committed and that the respondent is probable guilty
thereof and should be held for trial."1

It is a function that this Court should nut be called upon to perform. It is a function that properly
pertains to the public prosecutor,2 one that, as far as crimes cognizable by a Regional Trial Court are
concerned, and notwithstanding that it involves an adjudicative process of a sort,3 exclusively
pertains, by law, to said executive officer, the public prosecutor.4 It is moreover a function that in the
established scheme of things, is supposed to be performed at the very genesis of, indeed, prefatorily
to, the formal commencement of a criminal action.5 The proceedings before a public prosecutor, it
may well be stressed, are essentially preliminary, prefatory, and cannot lead to a final, definite and
authoritative adjudgment of the guilt or innocence of the persons charged with a felony or crime.6

Whether or not that function has been correctly discharged by the public prosecutor — i.e., whether
or not he has made a correct ascertainment of the existence of probable cause in a case — is a
matter that the trial court itself does not and may not be compelled to pass upon.7 There is no
provision of law authorizing an aggrieved party to petition for such a determination. It is not for
instance permitted for an accused, upon the filing of an information against him by the public
prosecutor, to preempt trial by filing a motion with the Trial Court praying for the quashal or dismissal
of the indictment on the ground that the evidence upon which the same is based is inadequate. Nor
is it permitted, on the antipodal theory that the evidence is in truth adequate, for the complaining
party to present a petition before the Court praying that the public prosecutor be compelled to file the
corresponding information against the accused.8

Besides, the function that this Court is asked to perform is that of a trier of facts which it does not
generally do,9 and if at all, only exceptionally, as in an appeal in a criminal action where the penalty
of life imprisonment, reclusion perpetua, or death has been imposed by a lower court (after due trial,
of course),10 or upon a convincing showing of palpable error as regards a particular factual
conclusion in the judgment of such lower court.11

What, in sum, is being attempted in this Court is to reverse the established and permanent order of
things — for the Court to act before trial and judgment by a lower tribunal; to require it to perform the
role of trier of facts — which, to repeat, it does not generally do, the issues properly cognizable by it
being normally limited exclusively to questions of law; 12 to make it do something that even the trial
court may not do at this stage of the proceedings — itself to determine the existence of probable
cause; to usurp a duty that exclusively pertains to an executive official 13 — to a preliminary
investigation or review the findings and conclusions of the public prosecutor who conducted one.

The matter is not within the review jurisdiction of the Court as this is clearly specified in the
Constitution,14 a jurisdiction which even the Congress may not increase "without . . . (the Court's)
advice and concurrence."15

From the pragmatic aspect, it is also an undesirable thing, for the result could well be an increase
the already considerable work load of the Court.

Furthermore, any judgment of this Court in this action would be inconclusive, as above intimated. It
would not necessarily end the case. It would not, for instance, prevent the complaining witnesses
from presenting additional evidence in an effort to have the information ultimately filed in the proper
court against the accused, or the respondents from asking for a reinvestigation and presenting

48
additional or other evidence warranting the dropping of the case. The Court would thus have wielded
judicial power without a definite settlement of rights and liabilities.

There are set rules, and procedural mechanisms in place for the determination of probable cause at
the level of the public prosecutor, the Department of Justice and, to a certain extent, the Regional
Trial Court. No recourse to this Court should normally be allowed to challenge their determinations
and dispositions. I therefore vote to refer to the Department of Justice for resolution, the petition for
the review of the Joint Resolution issued by Investigating Prosecutor Ramon Gerona.

Vitug, J., concurs.

PUNO, J., dissenting:

The constitutional policy of speedy adjudication of cases demand that we now affirm or reverse the
judicial finding of probable cause to hold petitioners for trial on the charge of estafa. Pepsi's Number
Fever Promotion, the root cause of the case at bar, was held way back in 1992. Since 1993, City
Prosecutor Candido Rivera of Quezon City, RTC Judge Maximiano Asuncion and the Court of
Appeals have uniformly found the existence of probable cause against petitioners. It is now 1996
and petitioners have yet to be tried in court. Three (3) long years of expensive litigation on the part of
private respondents, mostly belonging to the powerless of our people, will go to naught by
remanding the case to the Department of Justice for another executive determination of the issue of
probable cause.

To be sure, the case at bar is deeply impressed with public interest. On one hand are some 12,000
people holding "349" Pepsi crowns and who have long been clamoring for payment of their prize
money. Their collective claim runs to billions of pesos. On the other hand is petitioners' business
integrity which needs a shield from false and malicious charges. We should decide this dispute with
dispatch and with little resort to procedural technicalities, otherwise, our people's search for justice
will be too wearisome a toil.

II

Pursuant to this precis, I will skip capillary issues and immediately go to the heart of the case — i.e.,
determine whether the respondent Court of Appeals committed reversible error in affirming the
respondent trial judge who found probable cause to hold petitioners for trial on the charge of estafa.
The concept of probable cause is not a high level legal abstraction to be the subject of warring
thoughts. It is well established that "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."1

On the basis of the evidence presented by the parties in a long and exhaustive preliminary
investigation, Quezon City Prosecutor Rivera determined that there is a sufficient ground to
engender a well founded belief that petitioners committed estafa. City Prosecutor Rivera approved
the findings of First Assistant City Prosecutor Ramon M. Gerona contained in a 17-page Joint
Resolution. I quote in extenso the factual findings relied upon by the prosecutors in finding probable
cause, viz.:

xxx xxx xxx

49
The complaints-affidavits and replies by complainant and counter-affidavits and
rejoinder by respondents as well as arguments and counter- arguments from both
sides may be summed up to three simple but comprehensive issues, to wit:

1. Was there fraud or deceit committed by Pepsi through respondents

prior to or simultaneously with their deliberate act of refusal to pay
complainants the prizes indicated in their crown/caps?

2. Did Pepsi officials, herein respondents, comply with the rules and
regulations imposed by the DTI especially on the mechanics of the
promotion, or deviation, modification, addition or deletion of
aforenamed mechanics?

3. Was there a way respondents could have avoided the fraud?

Relative to the first and second issues, respondents insist that they had complied
with all the requirements or conditions imposed by the DTI particularly with respect to
the prior approval of the latter of the mechanics of the promotion. Respondent
likewise contend that the deviation of the duly approved mechanics of the promotion
was also approved by the DTI. In this regard, Section 10.1 of the Ministry Order No.
33 reads as follows:

10.1 All advertisements, brochures or any printed material indicating

or describing the mechanics of the promotion shall conform with the
mechanics approved by this Bureau. Any deviation, modification,
addition or deletion shall first be submitted to this Bureau for
approval.

Parenthetically, the contention by respondents that the mechanics of the promotion

was approved by the DTI is not in question, but, the additional contention that the
deviation thereof was likewise approved by the DTI is not supported by or does not
jibe with the facts. The report of Task Force DTI, page 14 thereof, says and we
quote:

It appears that after the "349" controversy which came about during
the extension period of Pepsi "Number Fever" promo, the significance
of the security code as a measure against tampering and faking of
the crowns or caps has been modified. For after May 26, 1995 the
"349" number surfaced to have both winning and non-winning
security codes." (emphasis supplied)

Page 15 of the same Task Force Report reads:

The DTI-NRC records show that the modification/deviation on the use

of security code as explained in the trade posters and other joint
advertisements was never submitted for approval in violation of the
specific requirements of 10.1 of Memorandum Order No. 33.

As to why only number "349" has both a winning and non-winning

security code, Mr. Q.J. Gomez, Jr. could not amplify the same except
by testifying that the supplier from Mexico gives them the list of
winning numbers and security codes together with the master list of

50
 the non-winning number which were done through a computer
program.

Respondents admit that only "349" was given two kinds of security codes, winning
and non-winning. This condition was added by respondents while the promo was
going on and after "349" had been announced as winner. The modification sans
approval by the DTI as shown in the preceding DTI findings to the extent that the
holders of the '"349" crowns are prejudiced or damaged after said number had been
drawn and announced as winner constitutes deceit, commencing from the date of the
launching of the promotion sometime in February 1992 up to the present with Pepsi's
refusal to honor complainants' demand for payment.

The alteration was found to be factual by the DTI in the last portion of the Task Force
Report which says with specifity:

xxx xxx xxx

The TF (Task Force) however noted it was only for No. "349" that a deviation in the
use of security code from what was originally approved by the DTI-NCR was made.
In all the other winning numbers PPCPI and PCI complied with the approved
mechanics. (Emphasis supplied)

Indeed, the mechanics mentioned the use of "a 3 digit security code as a measure
against tampering or faking the crowns" and that "each and every number has its
own unique, matching security code." (counter-affidavit, Rosemarie Vera, p. 13).

It is worth reproducing complainants' discussion of these two points in their

Memorandum.

Let us analyze these two rules:

4.2 The first rule defines the purposes of the security code, which is
to provide the basis for detecting whether or not a crown containing a
winning number is fake, spurious or tampered with. By the wording of
this rule, a genuine, true and real Pepsi, Mirinda, 7-up or Mountain
Dew crown bearing a winning number, as drawn and announced,
could not possibly lose in the promo. The genuineness of the crown
will be assured by the security code; and the drawn winning number it
bears will make it win.

In other words, the certainty about the genuineness of the crown that
is, not fake or tampered with is the objective of the security code, not
the crown's number being a winning number. Stated otherwise, the
rule, as published makes the security code the determinant of the
genuineness of the crown, not the winning quality of the number it
bears.

Deliberately, however, Pepsi is now applying this rule — nay, bending

it — (see par. 4.6.1. Counter-Affidavit) to make the security code
determinant of which, among the crowns bearing the winning number
"349," is really a winner! By giving the rule unwarranted and on-

51
 second thought application, Pepsi has effectively defrauded
complainants of their prizes. Is this not deceit?

4.3 The second rule above-stated must be tackled in conjunction with

par. 4.6 of the Counter-Affidavit which shows the meaning of the term
"number" as used in this rule. It means "A 3-digit number ranging
from 001 to 999" found under the specially-maked crowns of
softdrinks manufactured and sold by Pepsi.

The rule uses the term "unique" which the dictionary defines as
"Being the only one of its kind" (Funk and Gagnalls Standard) and
"without another of the same kind" (Webster's). A contextual and
syntactical appreciation of the rule would tell us that there is only one
security code of each number under the crown for insuring the
genuineness of the crown.

It is thus clear under the rule in question that "349" has its own
unique 7-digit security code to insure that the crown bearing it is not
fake or tampered with, do all the other winning numbers have or
should have. But what did Pepsi do after "349" was drawn as a
winner on May 25, 1992? Pepsi announced that "349" did not have
only one unique security code, but that it had both "winning" and
"non-winning" security codes. The security code of "349" was not the
one unique, but "349" itself became unique because it became a
winning and non-winning number at the same time. Was this unique
"uniqueness" of "349" announced at the start of the promo? No!
When was the revelation made? Only after "349" was drawn as a
winner and numerous-thousands of winning crown holders had
stormed the Pepsi plants all over the country, specially along Aurora
Boulevard, Quezon City, claiming their prizes.

The actuations of Pepsi vis-a-vis the above-stated two rules are

indubitable cases of "changing the rules as the game is being played"
to defraud the winners of the prizes. If DECEIT has many faces, this
is one of the ugliest among them.

We also concur with the argument of complainants that additional deceit was
committed by respondents when they attempted to substitute number "123" for
number "349" as the winning number announced and drawn on May 24, 1992 and
the closure of Pepsi Plant along Aurora Boulevard previously announced as
redemption center for winning crowns. The acts of respondents were described by
complainants as a continuation of their adamant refusal to pay and even hear the
claims of complainants who thereby sustained damage not for their expenses for
transportation but for the amounts of prizes absolutely denied them, let alone their
expense in buying Pepsi softdrinks in quantities beyond their normal needs. There is
merit in the description.

The third issue is could Pepsi have remedied the fraud? Definitely, by taking
reasonable steps in paying the "349" holders. Pepsi could not have succeeded in
requesting approval by DTI of the deviation from and/or modification of the
mechanics previously approved as an alternative remedy since sanctioning such

52
 deviation or modification could have placed DTI in equal footing with respondents,
making them co-conspirators to the fraud.

The pertinent provision of the Revised Penal Code reads as follows:

Art. 318. Other Deceits. The penalty of Arresto Mayor and a fine of
not less than the amount of the damage caused and not more than
twice such amount shall be imposed upon any person who shall
defraud or damage another by any other deceit not mentioned in the
preceding Articles of this Chapter.

As aptly contended by complainants any other kind of conceivable deceit may fall
under this Article. As in other cases of estafa, damage to the offended party is
required (Reyes, Revised Penal Code, p. 775, Book 2, 11th Ed. 1977).

Fraudulently obtaining a loan on the promise that realty would be mortgaged as

security for said loan which promise was not fulfilled because the borrower sold the
property would constitute estafa under Article 318 . . .

Complainants have, to our mind, succeeded in proving deceit and fraud by

respondents to avoid payment of prizes complainants are claiming in the "Number
Fever Promotion" for the "349" winning number to hold respondents, whose names
we will hereinafter enumerate, liable for estafa (Art. 318, RPC).

The prosecutors' finding of probable cause rests on two (2) critical facts established by
substantial evidence: one, that petitioners deviated from the Department of Trade and
Industry (DTI) rules when they required that only "349" crowns with security codes can win,
and two, that petitioners attempted to substitute "134" for "349" as the winning number.
These acts were interpreted by the prosecutors as prima facie deceitful and fraudulent. I do
not see how the resolution of the prosecutors finding sufficient ground to charge petitioners
with estafa can be successfully assailed as grave abuse of discretion.

III

To be sure, respondent judge Asuncion affirmed the prosecutors' finding when petitioners
challenged its validity. He found probable cause against the petitioners and ordered their arrest. The
majority opinion faults the procedure followed by Judge Asuncion in issuing the warrants of arrest
against petitioners. It cites two (2) reasons, viz.: (1) that Judge Asuncion issued the warrants merely
on the basis of the Information, Amended Information and Joint Resolution of the City Prosecutors of
Quezon City; he did not check and consult the complete records of the case which include the
affidavits of the witnesses, transcripts of stenographic notes and other documents submitted in the
preliminary investigation; and (2) Judge Asuncion did not expressly make any finding of probable
cause.

The procedure to be followed by a judge in reviewing the finding of probable cause by a prosecutor
has long been a quiescent area. In Soliven vs. Makasiar,2 we laid down the following procedure, viz.:

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:

53
 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 supporting documents submitted by the fiscal regarding the existence
of probable cause and, on the basis thereof, issue a warrant of arrest; 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
conclusion 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.

Soliven and other related3 cases did not establish the absolute rule that unless a judge has
the complete records of the preliminary investigation before him, he cannot lawfully
determine probable cause and issue a warrant of arrest. Soliven only held that it is the
personal responsibility of the judge to determine probable cause on the basis of the report
and supporting documents submitted by the fiscal; that he must independently evaluate the
report and supporting documents submitted by the fiscal; and, if he finds no probable cause
on the basis thereof, he can require submission of additional supporting affidavits of
witnesses. There is nothing in Soliven that requires prosecutors to submit to the judge the
complete records of the preliminary investigation especially if they are voluminous. Nor is
there anything in Soliven that holds that the omission to physically submit the complete
records of the case would constitutionally infirm a finding of probable cause by a judge even
if it was made on the basis of an exhaustive prosecutor's report or resolution. Indeed,
in Webb vs. de Leon,4 we sustained the finding of probable cause made by the trial judge
even if the complete records of the preliminary investigation were not elevated to the said
judge.

A revisit of our case law will reveal that what we condemned in the past as constitutionally
impermissible was the practice of judges of totally relying on pro forma certifications of fiscals that
they conducted a preliminary investigation and found probable cause that the accused committed
the crime charged in the Information. These pro forma certifications usually consisted of a short
sentence. They did not relate the relevant proceedings in the preliminary investigation nor did they

54
calibrate the weight of diverse and dueling evidence submitted by the parties. These bare
certifications carried no findings of fact and made no legal analysis which could be used by judges
as a rational basis for a determination of probable cause. Thus, we laid down the jurisprudence that
a judge who determines probable cause by relying on such meaningless certifications violates the
constitutional provision prohibiting issuance of warrants of arrest ". . . except upon probable cause to
be determined personally by the judge . . .

The case at bar does not involve these outlawed certifications. The respondent Court of Appeals
found that the 17-page Joint Resolution of the prosecutors provided the trial judge with sufficient
factual basis to find probable cause and to issue warrants of arrest against the petitioners. To
repeat, the finding of probable cause against petitioners rests on two (2) critical facts established by
evidence: one, that petitioners deviated from the Department of Trade and Industry rules when they
required that only "349" crowns with security codes could win, and two, that petitioners attempted to
substitute "134" for "349" as the winning number. The finding of deviation is based on the Task
Force Report of the DTI, the relevant portion of which was liberally quoted in the prosecutors' Joint
Resolution. The finding of attempt at substitution was taken from the affidavits of witnesses of the
private respondents. Petitioners do not charge that the Task Force Report of the DTI and the
affidavits of witnesses of the private respondents were incorrectly quoted by the prosecutors in their
joint Resolution. Thus, respondent judge need not be burdened by the duty of ordering the elevation
of the complete records of the preliminary investigation to check the accuracy of the critical evidence
as stated in the Joint Resolution.

The majority opinion also flays Judge Asuncion allegedly because

". . . he made no finding of probable cause . . ." I am not disposed to make this serious charge.
When Judge Asuncion issued the warrants of arrest against petitioners, I assume as did the
respondent Court of Appeals, that he had studied the Information and 17-page Resolution of the
prosecutors and that he agreed with the prosecutors' finding of probable cause. It is unnecessary for
him to issue an Order just to reiterate the findings of the prosecutors. It ought to be likewise
underscored that before Judge Asuncion issued the warrants of arrest, the matter of probable cause
was the subject of exhaustive pleadings before him. Thus, the parties submitted the following for the
respondent judge's consideration: (1) Motions to Suspend Proceedings and to Hold in Abeyance
Issuance of Warrants of Arrest; (2) Motion for Issuance of Warrants of Arrest; (3) Supplemental
Urgent Motion to Hold in Abeyance Issuance of Warrants of Arrest and to Suspend Proceedings; (4)
Opposition to Motion to Defer Arraignment; (5) Objection and Opposition to Motion to Suspend
Proceedings and to Hold in Abeyance the Issuance of Warrants of Arrest; and (6) Memorandum in
Support of the Motion to Suspend Proceedings and to Hold in Abeyance the Issuance of the
Warrants of Arrest. In these pleadings, the parties, especially the petitioners, discussed in length and
in depth the findings of the prosecutors as contained in their 17-page Joint Resolution. It is, thus,
erroneous to assume that the respondent judge had nothing before him when he ruled that there is
probable cause to charge petitioners with estafa.

With due respect to the majority, the ruling that a judge should always order the elevation of the
complete records of a preliminary investigation before proceeding with the task of reviewing the
finding of probable cause made by prosecutors will exacerbate the mischief of delays in the
disposition of criminal cases. This will not sit well with our people who are complaining that their
continuing calls for speedy justice are only receiving dial tones from courts. The transcription of
stenographic notes and the transfer of physical and documentary evidence, especially when
voluminous, will consume time, result in loss of valuable evidence and aggravate the burden of
litigants. It is my humble submission that the forwarding of complete records is not necessary when
the prosecutor's report is exhaustive and accurate as in the case at bar.

IV

55
The majority has deviated from the general rule when it set aside the finding of probable cause
made by the respondent Court of Appeals and the respondent trial judge. To be sure, this Court can
restrain the prosecution of criminal prosecutions in exceptional cases. These exceptional cases are:5

a. To afford adequate protection to the constitutional rights of the accused

(Hernandez vs. Albano, et al., L-19272, January 25, 1967, 19 SCRA 95);

b. When necessary for the orderly administration of justice or to avoid oppression or

multiplicity of actions (Dimayuga, et al. vs. Fernandez, 43 Phil. 304; Hernandez vs.
Albano, supra; Fortun vs. Labang, et al., L-38383, May 27, 1981, 104 SCRA 607);

c. When there is a prejudicial question which is sub judice (De Leon vs. Mabanag, 70
Phil. 202);

d. When the acts of the officer are without or in excess of authority (Planas vs. Gil, 67
Phil. 62);

e. Where the prosecution is under an invalid law, ordinance or regulation (Young vs.
Rafferty, 33 Phil. 556; Yu Cong Eng vs. Trinidad, 47 Phil. 385, 389);

f. When double jeopardy is clearly apparent (Sangalang vs. People and Avendia, 109
Phil. 1140);

g. Where the court has no jurisdiction over the offense (Lopez vs. City Judge, L-
25795, October 29, 1966, 18 SCRA 616)

h. Where it is a case of persecution rather than prosecution (Rustia vs. Ocampo, CA-
G.R. 4760, March 25, 1960);

i. Where the charges are manifestly false and motivated by the lust for vengeance
(Recto vs. Castelo, 18 L.J. [1953], cited in Ranoa vs. Alvendia, CA-G.R. No. 30720-
R, October 8, 1962, cf. Guingona, et al. vs. City Fiscal, L-60033, April 4, 1984, 128
SCRA 577); and

j. Where there is clearly no prima facie case against the accused and a motion to
quash on that ground has been denied (Salonga vs. Pano, et al., L-59524, February
19, 1985, 134 SCRA 438).

7. Preliminary injunction has been issued by the Supreme Court to prevent the
threatened unlawful arrest of petitioners (Rodriguez vs. Castelo, L-6374, August 1,
1953). (cited in Regalado, Remedial Law Compendium, p. 288, 1988 Ed.)

It must be stressed, however, that in these exceptional cases, the Court took the
extraordinary step of annulling findings of probable cause either to prevent the misuse of the
strong arm of the law or to protect the orderly administration of justice. The constitutional
duty of this Court in criminal litigations is not only to acquit the innocent after trial but to
insulate, from the start, the innocent from unfounded charges. For the Court is aware of the
strains of a criminal accusation and the stresses of litigation which should not be suffered by
the clearly innocent. The filing of an unfounded criminal information in court exposes the
innocent to severe distress especially when the crime is not bailable. Even an acquittal of the
innocent will not fully bleach the dark and deep stains left by a baseless accusation for

56
 reputation once tarnished remains tarnished for a long length of time. The expense to
establish innocence may also be prohibitive and can be more punishing especially to the
poor and the powerless. Innocence ought to be enough and the business of this Court is to
shield the innocent from senseless suits right from the start.

I respectfully submit, however, that the peculiar facts obtaining in the case at bar do not warrant us
to take the exceptional step of setting aside the finding of probable cause made by the respondent
appellate court and the trial court. Their finding is supported by substantial evidence and the
issuance of warrants of arrest against the petitioners to hold them for trial for estafa does not
constitute misuse of prosecutorial powers. To be sure, petitioners will be exposed to the
inconvenience of facing numerous similar criminal suits but so long as the inconvenience is no more
than what is necessary to dispense justice, they have no cause to gripe for justice equally belongs to
the private respondents.

It is also respectfully submitted that the Department of Justice did not act with grave abuse of
discretion when it refused to review the City Prosecutor's Joint Resolution and dismissed petitioners'
appeal. The applicable case law is Crespo vs. Mogul, et al.,6 where we held:

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

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

I concede that respondent judge Asuncion misread Crespo when he denied the
prosecution's Motion to Defer Further Proceedings on the ground that ". . . to follow whatever
opinion the Secretary of Justice may have on the matter would undermine the independence
and integrity of this Court." I agree that Crespo did not prohibit the Department of Justice
from reviewing resolutions of its prosecutors even if the proper informations have already
been filed with the courts. Crespo merely counselled the Secretary of Justice to refrain from
exercising said power of review "as far as practicable" taking into account the broader
interest for a more orderly administration of justice. In exceptional instances where it is
practicable for the Secretary of Justice to exercise the power of review, courts should not be
heard to complain that their independence will be undermined. The dispensation of justice is

57
 not the monopoly of courts. It is as much the responsibility of the two other great branches of
our government, the Executive and the Legislative.

Nevertheless, the refusal of the respondent Judge Asuncion to defer proceedings based on a
misperception of Crespo is now of deminimis importance. The initial decision of the DOJ to review
petitioners' case was due to its impression that the finding of probable cause made by the
prosecutors of Quezon City was, at that time, open to honest contentions. This doubt, however,
dissolved when no less than the respondent Court of Appeals sustained the finding of probable
cause made by the respondent judge after an evaluation of the Joint Resolution of the Quezon City
prosecutors. With the imprimatur of the respondent Court of Appeals on the existence of probable
cause and following Crespo, it is no longer "practicable" for the DOJ to further review petitioners'
case. Contrary to the impression of the majority, the appellate court affirmed the ruling of respondent
judge on probable cause only after a long and deliberate study of the issue. The issue of probable
cause was the subject of oral arguments and extensive pleadings before the appellate court which
even directed the elevation of the original records of Criminal Case No. Q-93-43198. The probability
that the DOJ will reach a finding different from the appellate court is nil considering that it will be
reviewing the same set of evidence.

Finally, petitioners justify the need for DOJ to review their case in view of the latter's alleged
contradictory rulings on cases brought by different parties involving the same controversy. The DOJ
has denied the charge that it has issued contradictory rulings. But if these contradictory rulings were
truly rendered by DOJ, there is more reason for DOJ to let the issue be resolved by the courts. As
ultimate arbiters of rights in conflict, only the courts can write finis to the controversy between
petitioners and private respondents.

I vote to dismiss the petition.

Regalado, Romero, Melo and Mendoza, JJ., concur.

Separate Opinions

NARVASA, C.J., concurring:

I agree with the disposition of the case proposed by Mr. Justice Hilario G. Davide in his dissenting
opinion, that the determination of whether or not probable cause exists to warrant the prosecution in
court of the petitioners should be consigned and entrusted to the Department of Justice, as reviewer
of the findings of the public prosecutors concerned.

In this special civil action, this Court is being asked to assume the function of a public prosecutor. It
is being asked to determine whether probable cause exists as regards petitioners. More concretely,
the Court is being asked to examine and assess such evidence as has thus far been submitted by
the parties and, on the basis thereof, make a conclusion as to whether or not it suffices "to engender
a well founded belief that a crime has been committed and that the respondent is probable guilty
thereof and should be held for trial."1

It is a function that this Court should nut be called upon to perform. It is a function that properly
pertains to the public prosecutor,2 one that, as far as crimes cognizable by a Regional Trial Court are
concerned, and notwithstanding that it involves an adjudicative process of a sort,3 exclusively
pertains, by law, to said executive officer, the public prosecutor.4 It is moreover a function that in the
established scheme of things, is supposed to be performed at the very genesis of, indeed, prefatorily

58
to, the formal commencement of a criminal action.5 The proceedings before a public prosecutor, it
may well be stressed, are essentially preliminary, prefatory, and cannot lead to a final, definite and
authoritative adjudgment of the guilt or innocence of the persons charged with a felony or crime.6

Whether or not that function has been correctly discharged by the public prosecutor — i.e., whether
or not he has made a correct ascertainment of the existence of probable cause in a case — is a
matter that the trial court itself does not and may not be compelled to pass upon.7 There is no
provision of law authorizing an aggrieved party to petition for such a determination. It is not for
instance permitted for an accused, upon the filing of an information against him by the public
prosecutor, to preempt trial by filing a motion with the Trial Court praying for the quashal or dismissal
of the indictment on the ground that the evidence upon which the same is based is inadequate. Nor
is it permitted, on the antipodal theory that the evidence is in truth adequate, for the complaining
party to present a petition before the Court praying that the public prosecutor be compelled to file the
corresponding information against the accused.8

Besides, the function that this Court is asked to perform is that of a trier of facts which it does not
generally do,9 and if at all, only exceptionally, as in an appeal in a criminal action where the penalty
of life imprisonment, reclusion perpetua, or death has been imposed by a lower court (after due trial,
of course),10 or upon a convincing showing of palpable error as regards a particular factual
conclusion in the judgment of such lower court.11

What, in sum, is being attempted in this Court is to reverse the established and permanent order of
things — for the Court to act before trial and judgment by a lower tribunal; to require it to perform the
role of trier of facts — which, to repeat, it does not generally do, the issues properly cognizable by it
being normally limited exclusively to questions of law; 12 to make it do something that even the trial
court may not do at this stage of the proceedings — itself to determine the existence of probable
cause; to usurp a duty that exclusively pertains to an executive official 13 — to a preliminary
investigation or review the findings and conclusions of the public prosecutor who conducted one.

The matter is not within the review jurisdiction of the Court as this is clearly specified in the
Constitution,14 a jurisdiction which even the Congress may not increase "without . . . (the Court's)
advice and concurrence."15

From the pragmatic aspect, it is also an undesirable thing, for the result could well be an increase
the already considerable work load of the Court.

Furthermore, any judgment of this Court in this action would be inconclusive, as above intimated. It
would not necessarily end the case. It would not, for instance, prevent the complaining witnesses
from presenting additional evidence in an effort to have the information ultimately filed in the proper
court against the accused, or the respondents from asking for a reinvestigation and presenting
additional or other evidence warranting the dropping of the case. The Court would thus have wielded
judicial power without a definite settlement of rights and liabilities.

There are set rules, and procedural mechanisms in place for the determination of probable cause at
the level of the public prosecutor, the Department of Justice and, to a certain extent, the Regional
Trial Court. No recourse to this Court should normally be allowed to challenge their determinations
and dispositions. I therefore vote to refer to the Department of Justice for resolution, the petition for
the review of the Joint Resolution issued by Investigating Prosecutor Ramon Gerona.

Vitug, J., concurs.

PUNO, J., dissenting:

59
 I

The constitutional policy of speedy adjudication of cases demand that we now affirm or reverse the
judicial finding of probable cause to hold petitioners for trial on the charge of estafa. Pepsi's Number
Fever Promotion, the root cause of the case at bar, was held way back in 1992. Since 1993, City
Prosecutor Candido Rivera of Quezon City, RTC Judge Maximiano Asuncion and the Court of
Appeals have uniformly found the existence of probable cause against petitioners. It is now 1996
and petitioners have yet to be tried in court. Three (3) long years of expensive litigation on the part of
private respondents, mostly belonging to the powerless of our people, will go to naught by
remanding the case to the Department of Justice for another executive determination of the issue of
probable cause.

To be sure, the case at bar is deeply impressed with public interest. On one hand are some 12,000
people holding "349" Pepsi crowns and who have long been clamoring for payment of their prize
money. Their collective claim runs to billions of pesos. On the other hand is petitioners' business
integrity which needs a shield from false and malicious charges. We should decide this dispute with
dispatch and with little resort to procedural technicalities, otherwise, our people's search for justice
will be too wearisome a toil.

II

Pursuant to this precis, I will skip capillary issues and immediately go to the heart of the case — i.e.,
determine whether the respondent Court of Appeals committed reversible error in affirming the
respondent trial judge who found probable cause to hold petitioners for trial on the charge of estafa.
The concept of probable cause is not a high level legal abstraction to be the subject of warring
thoughts. It is well established that "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."1

On the basis of the evidence presented by the parties in a long and exhaustive preliminary
investigation, Quezon City Prosecutor Rivera determined that there is a sufficient ground to
engender a well founded belief that petitioners committed estafa. City Prosecutor Rivera approved
the findings of First Assistant City Prosecutor Ramon M. Gerona contained in a 17-page Joint
Resolution. I quote in extenso the factual findings relied upon by the prosecutors in finding probable
cause, viz.:

xxx xxx xxx

The complaints-affidavits and replies by complainant and counter-affidavits and

rejoinder by respondents as well as arguments and counter- arguments from both
sides may be summed up to three simple but comprehensive issues, to wit:

1. Was there fraud or deceit committed by Pepsi through respondents

prior to or simultaneously with their deliberate act of refusal to pay
complainants the prizes indicated in their crown/caps?

2. Did Pepsi officials, herein respondents, comply with the rules and
regulations imposed by the DTI especially on the mechanics of the
promotion, or deviation, modification, addition or deletion of
aforenamed mechanics?

60
 3. Was there a way respondents could have avoided the fraud?

Relative to the first and second issues, respondents insist that they had complied
with all the requirements or conditions imposed by the DTI particularly with respect to
the prior approval of the latter of the mechanics of the promotion. Respondent
likewise contend that the deviation of the duly approved mechanics of the promotion
was also approved by the DTI. In this regard, Section 10.1 of the Ministry Order No.
33 reads as follows:

10.1 All advertisements, brochures or any printed material indicating

or describing the mechanics of the promotion shall conform with the
mechanics approved by this Bureau. Any deviation, modification,
addition or deletion shall first be submitted to this Bureau for
approval.

Parenthetically, the contention by respondents that the mechanics of the promotion

was approved by the DTI is not in question, but, the additional contention that the
deviation thereof was likewise approved by the DTI is not supported by or does not
jibe with the facts. The report of Task Force DTI, page 14 thereof, says and we
quote:

It appears that after the "349" controversy which came about during
the extension period of Pepsi "Number Fever" promo, the significance
of the security code as a measure against tampering and faking of
the crowns or caps has been modified. For after May 26, 1995 the
"349" number surfaced to have both winning and non-winning
security codes." (emphasis supplied)

Page 15 of the same Task Force Report reads:

The DTI-NRC records show that the modification/deviation on the use

of security code as explained in the trade posters and other joint
advertisements was never submitted for approval in violation of the
specific requirements of 10.1 of Memorandum Order No. 33.

As to why only number "349" has both a winning and non-winning

security code, Mr. Q.J. Gomez, Jr. could not amplify the same except
by testifying that the supplier from Mexico gives them the list of
winning numbers and security codes together with the master list of
the non-winning number which were done through a computer
program.

Respondents admit that only "349" was given two kinds of security codes, winning
and non-winning. This condition was added by respondents while the promo was
going on and after "349" had been announced as winner. The modification sans
approval by the DTI as shown in the preceding DTI findings to the extent that the
holders of the '"349" crowns are prejudiced or damaged after said number had been
drawn and announced as winner constitutes deceit, commencing from the date of the
launching of the promotion sometime in February 1992 up to the present with Pepsi's
refusal to honor complainants' demand for payment.

61
The alteration was found to be factual by the DTI in the last portion of the Task Force
Report which says with specifity:

xxx xxx xxx

The TF (Task Force) however noted it was only for No. "349" that a deviation in the
use of security code from what was originally approved by the DTI-NCR was made.
In all the other winning numbers PPCPI and PCI complied with the approved
mechanics. (Emphasis supplied)

Indeed, the mechanics mentioned the use of "a 3 digit security code as a measure
against tampering or faking the crowns" and that "each and every number has its
own unique, matching security code." (counter-affidavit, Rosemarie Vera, p. 13).

It is worth reproducing complainants' discussion of these two points in their

Memorandum.

Let us analyze these two rules:

4.2 The first rule defines the purposes of the security code, which is
to provide the basis for detecting whether or not a crown containing a
winning number is fake, spurious or tampered with. By the wording of
this rule, a genuine, true and real Pepsi, Mirinda, 7-up or Mountain
Dew crown bearing a winning number, as drawn and announced,
could not possibly lose in the promo. The genuineness of the crown
will be assured by the security code; and the drawn winning number it
bears will make it win.

In other words, the certainty about the genuineness of the crown that
is, not fake or tampered with is the objective of the security code, not
the crown's number being a winning number. Stated otherwise, the
rule, as published makes the security code the determinant of the
genuineness of the crown, not the winning quality of the number it
bears.

Deliberately, however, Pepsi is now applying this rule — nay, bending

it — (see par. 4.6.1. Counter-Affidavit) to make the security code
determinant of which, among the crowns bearing the winning number
"349," is really a winner! By giving the rule unwarranted and on-
second thought application, Pepsi has effectively defrauded
complainants of their prizes. Is this not deceit?

4.3 The second rule above-stated must be tackled in conjunction with

par. 4.6 of the Counter-Affidavit which shows the meaning of the term
"number" as used in this rule. It means "A 3-digit number ranging
from 001 to 999" found under the specially-maked crowns of
softdrinks manufactured and sold by Pepsi.

The rule uses the term "unique" which the dictionary defines as
"Being the only one of its kind" (Funk and Gagnalls Standard) and
"without another of the same kind" (Webster's). A contextual and
syntactical appreciation of the rule would tell us that there is only one

62
 security code of each number under the crown for insuring the
genuineness of the crown.

It is thus clear under the rule in question that "349" has its own
unique 7-digit security code to insure that the crown bearing it is not
fake or tampered with, do all the other winning numbers have or
should have. But what did Pepsi do after "349" was drawn as a
winner on May 25, 1992? Pepsi announced that "349" did not have
only one unique security code, but that it had both "winning" and
"non-winning" security codes. The security code of "349" was not the
one unique, but "349" itself became unique because it became a
winning and non-winning number at the same time. Was this unique
"uniqueness" of "349" announced at the start of the promo? No!
When was the revelation made? Only after "349" was drawn as a
winner and numerous-thousands of winning crown holders had
stormed the Pepsi plants all over the country, specially along Aurora
Boulevard, Quezon City, claiming their prizes.

The actuations of Pepsi vis-a-vis the above-stated two rules are

indubitable cases of "changing the rules as the game is being played"
to defraud the winners of the prizes. If DECEIT has many faces, this
is one of the ugliest among them.

We also concur with the argument of complainants that additional deceit was
committed by respondents when they attempted to substitute number "123" for
number "349" as the winning number announced and drawn on May 24, 1992 and
the closure of Pepsi Plant along Aurora Boulevard previously announced as
redemption center for winning crowns. The acts of respondents were described by
complainants as a continuation of their adamant refusal to pay and even hear the
claims of complainants who thereby sustained damage not for their expenses for
transportation but for the amounts of prizes absolutely denied them, let alone their
expense in buying Pepsi softdrinks in quantities beyond their normal needs. There is
merit in the description.

The third issue is could Pepsi have remedied the fraud? Definitely, by taking
reasonable steps in paying the "349" holders. Pepsi could not have succeeded in
requesting approval by DTI of the deviation from and/or modification of the
mechanics previously approved as an alternative remedy since sanctioning such
deviation or modification could have placed DTI in equal footing with respondents,
making them co-conspirators to the fraud.

The pertinent provision of the Revised Penal Code reads as follows:

Art. 318. Other Deceits. The penalty of Arresto Mayor and a fine of
not less than the amount of the damage caused and not more than
twice such amount shall be imposed upon any person who shall
defraud or damage another by any other deceit not mentioned in the
preceding Articles of this Chapter.

As aptly contended by complainants any other kind of conceivable deceit may fall
under this Article. As in other cases of estafa, damage to the offended party is
required (Reyes, Revised Penal Code, p. 775, Book 2, 11th Ed. 1977).

63
 Fraudulently obtaining a loan on the promise that realty would be mortgaged as
security for said loan which promise was not fulfilled because the borrower sold the
property would constitute estafa under Article 318 . . .

Complainants have, to our mind, succeeded in proving deceit and fraud by

respondents to avoid payment of prizes complainants are claiming in the "Number
Fever Promotion" for the "349" winning number to hold respondents, whose names
we will hereinafter enumerate, liable for estafa (Art. 318, RPC).

The prosecutors' finding of probable cause rests on two (2) critical facts established by
substantial evidence: one, that petitioners deviated from the Department of Trade and
Industry (DTI) rules when they required that only "349" crowns with security codes can win,
and two, that petitioners attempted to substitute "134" for "349" as the winning number.
These acts were interpreted by the prosecutors as prima facie deceitful and fraudulent. I do
not see how the resolution of the prosecutors finding sufficient ground to charge petitioners
with estafa can be successfully assailed as grave abuse of discretion.

III

To be sure, respondent judge Asuncion affirmed the prosecutors' finding when petitioners
challenged its validity. He found probable cause against the petitioners and ordered their arrest. The
majority opinion faults the procedure followed by Judge Asuncion in issuing the warrants of arrest
against petitioners. It cites two (2) reasons, viz.: (1) that Judge Asuncion issued the warrants merely
on the basis of the Information, Amended Information and Joint Resolution of the City Prosecutors of
Quezon City; he did not check and consult the complete records of the case which include the
affidavits of the witnesses, transcripts of stenographic notes and other documents submitted in the
preliminary investigation; and (2) Judge Asuncion did not expressly make any finding of probable
cause.

The procedure to be followed by a judge in reviewing the finding of probable cause by a prosecutor
has long been a quiescent area. In Soliven vs. Makasiar,2 we laid down the following procedure, viz.:

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.

64
 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 supporting documents submitted by the fiscal regarding the existence
of probable cause and, on the basis thereof, issue a warrant of arrest; 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
conclusion 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.

Soliven and other related3 cases did not establish the absolute rule that unless a judge has
the complete records of the preliminary investigation before him, he cannot lawfully
determine probable cause and issue a warrant of arrest. Soliven only held that it is the
personal responsibility of the judge to determine probable cause on the basis of the report
and supporting documents submitted by the fiscal; that he must independently evaluate the
report and supporting documents submitted by the fiscal; and, if he finds no probable cause
on the basis thereof, he can require submission of additional supporting affidavits of
witnesses. There is nothing in Soliven that requires prosecutors to submit to the judge the
complete records of the preliminary investigation especially if they are voluminous. Nor is
there anything in Soliven that holds that the omission to physically submit the complete
records of the case would constitutionally infirm a finding of probable cause by a judge even
if it was made on the basis of an exhaustive prosecutor's report or resolution. Indeed,
in Webb vs. de Leon,4 we sustained the finding of probable cause made by the trial judge
even if the complete records of the preliminary investigation were not elevated to the said
judge.

A revisit of our case law will reveal that what we condemned in the past as constitutionally
impermissible was the practice of judges of totally relying on pro forma certifications of fiscals that
they conducted a preliminary investigation and found probable cause that the accused committed
the crime charged in the Information. These pro forma certifications usually consisted of a short
sentence. They did not relate the relevant proceedings in the preliminary investigation nor did they
calibrate the weight of diverse and dueling evidence submitted by the parties. These bare
certifications carried no findings of fact and made no legal analysis which could be used by judges
as a rational basis for a determination of probable cause. Thus, we laid down the jurisprudence that
a judge who determines probable cause by relying on such meaningless certifications violates the
constitutional provision prohibiting issuance of warrants of arrest ". . . except upon probable cause to
be determined personally by the judge . . .

The case at bar does not involve these outlawed certifications. The respondent Court of Appeals
found that the 17-page Joint Resolution of the prosecutors provided the trial judge with sufficient
factual basis to find probable cause and to issue warrants of arrest against the petitioners. To
repeat, the finding of probable cause against petitioners rests on two (2) critical facts established by
evidence: one, that petitioners deviated from the Department of Trade and Industry rules when they
required that only "349" crowns with security codes could win, and two, that petitioners attempted to
substitute "134" for "349" as the winning number. The finding of deviation is based on the Task
Force Report of the DTI, the relevant portion of which was liberally quoted in the prosecutors' Joint
Resolution. The finding of attempt at substitution was taken from the affidavits of witnesses of the
private respondents. Petitioners do not charge that the Task Force Report of the DTI and the

65
affidavits of witnesses of the private respondents were incorrectly quoted by the prosecutors in their
joint Resolution. Thus, respondent judge need not be burdened by the duty of ordering the elevation
of the complete records of the preliminary investigation to check the accuracy of the critical evidence
as stated in the Joint Resolution.

The majority opinion also flays Judge Asuncion allegedly because

". . . he made no finding of probable cause . . ." I am not disposed to make this serious charge.
When Judge Asuncion issued the warrants of arrest against petitioners, I assume as did the
respondent Court of Appeals, that he had studied the Information and 17-page Resolution of the
prosecutors and that he agreed with the prosecutors' finding of probable cause. It is unnecessary for
him to issue an Order just to reiterate the findings of the prosecutors. It ought to be likewise
underscored that before Judge Asuncion issued the warrants of arrest, the matter of probable cause
was the subject of exhaustive pleadings before him. Thus, the parties submitted the following for the
respondent judge's consideration: (1) Motions to Suspend Proceedings and to Hold in Abeyance
Issuance of Warrants of Arrest; (2) Motion for Issuance of Warrants of Arrest; (3) Supplemental
Urgent Motion to Hold in Abeyance Issuance of Warrants of Arrest and to Suspend Proceedings; (4)
Opposition to Motion to Defer Arraignment; (5) Objection and Opposition to Motion to Suspend
Proceedings and to Hold in Abeyance the Issuance of Warrants of Arrest; and (6) Memorandum in
Support of the Motion to Suspend Proceedings and to Hold in Abeyance the Issuance of the
Warrants of Arrest. In these pleadings, the parties, especially the petitioners, discussed in length and
in depth the findings of the prosecutors as contained in their 17-page Joint Resolution. It is, thus,
erroneous to assume that the respondent judge had nothing before him when he ruled that there is
probable cause to charge petitioners with estafa.

With due respect to the majority, the ruling that a judge should always order the elevation of the
complete records of a preliminary investigation before proceeding with the task of reviewing the
finding of probable cause made by prosecutors will exacerbate the mischief of delays in the
disposition of criminal cases. This will not sit well with our people who are complaining that their
continuing calls for speedy justice are only receiving dial tones from courts. The transcription of
stenographic notes and the transfer of physical and documentary evidence, especially when
voluminous, will consume time, result in loss of valuable evidence and aggravate the burden of
litigants. It is my humble submission that the forwarding of complete records is not necessary when
the prosecutor's report is exhaustive and accurate as in the case at bar.

IV

The majority has deviated from the general rule when it set aside the finding of probable cause
made by the respondent Court of Appeals and the respondent trial judge. To be sure, this Court can
restrain the prosecution of criminal prosecutions in exceptional cases. These exceptional cases are:5

a. To afford adequate protection to the constitutional rights of the accused

(Hernandez vs. Albano, et al., L-19272, January 25, 1967, 19 SCRA 95);

b. When necessary for the orderly administration of justice or to avoid oppression or

multiplicity of actions (Dimayuga, et al. vs. Fernandez, 43 Phil. 304; Hernandez vs.
Albano, supra; Fortun vs. Labang, et al., L-38383, May 27, 1981, 104 SCRA 607);

c. When there is a prejudicial question which is sub judice (De Leon vs. Mabanag, 70
Phil. 202);

d. When the acts of the officer are without or in excess of authority (Planas vs. Gil, 67
Phil. 62);

66
 e. Where the prosecution is under an invalid law, ordinance or regulation (Young vs.
Rafferty, 33 Phil. 556; Yu Cong Eng vs. Trinidad, 47 Phil. 385, 389);

f. When double jeopardy is clearly apparent (Sangalang vs. People and Avendia, 109
Phil. 1140);

g. Where the court has no jurisdiction over the offense (Lopez vs. City Judge, L-
25795, October 29, 1966, 18 SCRA 616)

h. Where it is a case of persecution rather than prosecution (Rustia vs. Ocampo, CA-
G.R. 4760, March 25, 1960);

i. Where the charges are manifestly false and motivated by the lust for vengeance
(Recto vs. Castelo, 18 L.J. [1953], cited in Ranoa vs. Alvendia, CA-G.R. No. 30720-
R, October 8, 1962, cf. Guingona, et al. vs. City Fiscal, L-60033, April 4, 1984, 128
SCRA 577); and

j. Where there is clearly no prima facie case against the accused and a motion to
quash on that ground has been denied (Salonga vs. Pano, et al., L-59524, February
19, 1985, 134 SCRA 438).

7. Preliminary injunction has been issued by the Supreme Court to prevent the
threatened unlawful arrest of petitioners (Rodriguez vs. Castelo, L-6374, August 1,
1953). (cited in Regalado, Remedial Law Compendium, p. 288, 1988 Ed.)

It must be stressed, however, that in these exceptional cases, the Court took the
extraordinary step of annulling findings of probable cause either to prevent the misuse of the
strong arm of the law or to protect the orderly administration of justice. The constitutional
duty of this Court in criminal litigations is not only to acquit the innocent after trial but to
insulate, from the start, the innocent from unfounded charges. For the Court is aware of the
strains of a criminal accusation and the stresses of litigation which should not be suffered by
the clearly innocent. The filing of an unfounded criminal information in court exposes the
innocent to severe distress especially when the crime is not bailable. Even an acquittal of the
innocent will not fully bleach the dark and deep stains left by a baseless accusation for
reputation once tarnished remains tarnished for a long length of time. The expense to
establish innocence may also be prohibitive and can be more punishing especially to the
poor and the powerless. Innocence ought to be enough and the business of this Court is to
shield the innocent from senseless suits right from the start.

I respectfully submit, however, that the peculiar facts obtaining in the case at bar do not warrant us
to take the exceptional step of setting aside the finding of probable cause made by the respondent
appellate court and the trial court. Their finding is supported by substantial evidence and the
issuance of warrants of arrest against the petitioners to hold them for trial for estafa does not
constitute misuse of prosecutorial powers. To be sure, petitioners will be exposed to the
inconvenience of facing numerous similar criminal suits but so long as the inconvenience is no more
than what is necessary to dispense justice, they have no cause to gripe for justice equally belongs to
the private respondents.

67
It is also respectfully submitted that the Department of Justice did not act with grave abuse of
discretion when it refused to review the City Prosecutor's Joint Resolution and dismissed petitioners'
appeal. The applicable case law is Crespo vs. Mogul, et al.,6 where we held:

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

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

I concede that respondent judge Asuncion misread Crespo when he denied the
prosecution's Motion to Defer Further Proceedings on the ground that ". . . to follow whatever
opinion the Secretary of Justice may have on the matter would undermine the independence
and integrity of this Court." I agree that Crespo did not prohibit the Department of Justice
from reviewing resolutions of its prosecutors even if the proper informations have already
been filed with the courts. Crespo merely counselled the Secretary of Justice to refrain from
exercising said power of review "as far as practicable" taking into account the broader
interest for a more orderly administration of justice. In exceptional instances where it is
practicable for the Secretary of Justice to exercise the power of review, courts should not be
heard to complain that their independence will be undermined. The dispensation of justice is
not the monopoly of courts. It is as much the responsibility of the two other great branches of
our government, the Executive and the Legislative.

Nevertheless, the refusal of the respondent Judge Asuncion to defer proceedings based on a
misperception of Crespo is now of deminimis importance. The initial decision of the DOJ to review
petitioners' case was due to its impression that the finding of probable cause made by the
prosecutors of Quezon City was, at that time, open to honest contentions. This doubt, however,
dissolved when no less than the respondent Court of Appeals sustained the finding of probable
cause made by the respondent judge after an evaluation of the Joint Resolution of the Quezon City
prosecutors. With the imprimatur of the respondent Court of Appeals on the existence of probable
cause and following Crespo, it is no longer "practicable" for the DOJ to further review petitioners'
case. Contrary to the impression of the majority, the appellate court affirmed the ruling of respondent
judge on probable cause only after a long and deliberate study of the issue. The issue of probable
cause was the subject of oral arguments and extensive pleadings before the appellate court which
even directed the elevation of the original records of Criminal Case No. Q-93-43198. The probability
that the DOJ will reach a finding different from the appellate court is nil considering that it will be
reviewing the same set of evidence.

68
Finally, petitioners justify the need for DOJ to review their case in view of the latter's alleged
contradictory rulings on cases brought by different parties involving the same controversy. The DOJ
has denied the charge that it has issued contradictory rulings. But if these contradictory rulings were
truly rendered by DOJ, there is more reason for DOJ to let the issue be resolved by the courts. As
ultimate arbiters of rights in conflict, only the courts can write finis to the controversy between
petitioners and private respondents.

I vote to dismiss the petition.

Regalado, Romero, Melo and Mendoza, JJ., concur.

Footnotes

1 Annex "A" of Petition; Rollo, 64-68. Per Justice, now Associate Justice of
this Court, Francisco, R., with Tayao-Jaguros, L. and Verzola, E., JJ.,
concurring.

2 Annex "8" of Petition; Rollo, 69-72.

3 Annex "C," Id.; Id., 3-74.

4 Annexes "D" and "E," Id.; Id., 75-78.

5 Rollo, 19.

6 Those represented alone by Atty. Bonifacio Manansala are enumerated,

single space, in 91 pages of Legal size bond paper, with an average of 55
names, more or less, per page (Id., vol. 2, 913-1003) and in his
Memorandum-Explanation dated 16 February 1995, he discloses that he is
"presently representing more than 7,000 claimants" (Id., vol. 1, 648). Atty.
Jose Espinas revealed in his Comment that he represents "700 INDIVIDUAL
COMPLAINANTS, MORE OR LESS" (Id., vol. 1, 567). Atty. Julio Contreras
claims in his Compliance of 10 September 1995 to represent "4,406" (Id., vol.
2, unpaginated).

7 Originally held from 17 February to 8 May 1992, but later extended from 11
May to 12 June 1992.

8 Entitled, "Strengthening the Rule-Making and Adjudicatory Powers of the

Minister of Trade and Industry in order to further Protect Consumers."

9 Entitled, "An Act to Penalize Fraudulent Advertising, Mislabeling or

Misbranding of Any Product, Stocks, Bonds, Etc."

10 Rollo, vol. 1, 152-168; 191-212.

11 Id., 209-210.

12 Rollo, vol. 1, 210.

69
13 Original Records (OR), Criminal Case No. Q-93-43198, vol. 1 (hereinafter
referred to as OR-RTC, vol. 1), 1-3.

14 OR-RTC, vol. 1, 4-24.

15 OR-RTC, vol. 1, 28-49.

16 Id., 25-27, 67-68.

17 OR-RTC, vol. 1, 291.

18 See stamped entry on top of page 1 of the Information; Id., 1.

19 Id., 229.

20 Id., 232-240.

21 OR-RTC, vol. 1, 288.

22 Id., 289-290.

23 Id., vol. 2, 1-3.

24 Id., 4.

25 Id., 5.

26 Id., 6-11.

27 Id., 12-17, 48-54.

28 OR-RTC, vol. 1, 55-64.

29 Id., vol. 2, 65-66.

30 Rollo, CA-G.R. SP No. 31226 (hereinafter referred to as Rollo-CA), 1-

39; see also OR-RTC, vol. 2, 79-116.

31 Id., 157; Id., 229.

32 OR-RTC, vol. 2, 233.

33 Rollo-CA, 193-194.

34 Id., 196-201.

35 Rollo-CA, 288.

36 Id., 296.

70
37 Id., 334-335.

38 Id., 336-337.

39 Id., 488-493.

40 Rollo-CA, 336-337; 490-491.

41 Per Justice, now Associate Justice of this Court, Francisco, R., with
Tayao-Jaguros, L. and Verzola, E., JJ., concurring.

42 Should be "petitioners."

43 Rollo, vol. 1, 77-78.

44 Rollo-CA, 500-507.

45 Id., 575-577.

46 Rollo, vol. 1, 425-431.

47 Id., 456-484.

48 Id., 533-539.

49 Id., 526-530.

50 Id., 555.

51 151 SCRA 462 [1987].

52 Supra note 51, at 471-472.

53 235 SCRA 39 [1994].

54 The said paragraph reads as follows:

If upon petition by a proper party, the Minister 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. (emphasis supplied)

55 The said section 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
showing of manifest error or grave abuse of discretion. Notwithstanding the
shoving of manifest error of grave abuse of discretion, no appeal shall be

71
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.

56 Revised Rules on Appeals from Resolutions in Preliminary

Investigations/Reinvestigations.

57 Supra note 51, at 471.

58 237 SCRA 575, 585-586 [1994]. See also Dee vs. Court of Appeals, 238
SCRA 254 [1994].

59 Third paragraph, Section 87, The Judiciary Act of 1948 (R.A. No. 269, as
amended by R.A. Nos. 2613 and 3828, which provides:

No warrant of arrest shall be issued by any municipal judge in any criminal

case filed with him unless he first examines the witness or witnesses
personally, and the examination shall be under oath and reduced to writing in
the form of searching questions and answers.

60 Second paragraph, Section 10, 1983 Rule on Summary Procedure, which

provides:

Failure on the part of the defendant to appear wherever required shall cause
the issuance of a warrant for his arrest if the court shall find that a probable
cause exists after an examination in writing and under oath or affirmation of
the complainant and his witnesses.

Section 16, 1991 Revised Rule on Summary Procedure, which provides:

The court shall not order the arrest of the accused except for failure to
appear whenever required. Release of the person arrested shall either be on
bail or on recognizance by a responsible citizen acceptable to the court.

61 Section 6(b), Rule 112, Rules of Court, which reads:

If the municipal trial judge conducting the preliminary investigation is satisfied

after an examination in writing and under oath of the complainant and his
witnesses, in the form of searching questions and answers, that a probable
cause exists and that there is a necessity of placing the respondent under
immediate custody in order not to frustrate the ends of justice.

Section 37, The Judiciary Reorganization Act of 1980 (B.P. Blg. 129), which
reads in part as follows:

No warrant of arrest shall be issued by the Judge in connection with any

criminal complaint filed with him for preliminary investigation, unless after an

72
examination in writing and under oath or affirmation of the complainant and
his witnesses he finds that probable cause exists.

62 Section 6(a), Rule 112, Rules of Court, which reads:

Sec. 6. When warrant of arrest may issue. —

(a) By the Regional Trial Court. — Upon the filing of an information, the
Regional Trial Court may issue a warrant for the arrest of the accused.

63 167 SCRA 393 [1988].

64 Id., 398.

65 187 SCRA 788, 792 [1990].

66 189 SCRA 715 [1990].

67 194 SCRA 292, 305 [1991].

68 232 SCRA 192, 201 [1994].

69 G.R. No. 121234 and companion cases, 23 August 1995.

70 Supra, note 63.

71 OR-RTC, vol. 2, 68.

72 See for instance the resolutions of 12 January 1993 in the case filed by
Merelita Napuran in the office of the Provincial Prosecutor of Palo, Leyte
(Rollo, vol. 1, 223); and 14 January 1993 in cases filed with the Office of the
City Prosecutor of Lucena City (Id., 227). It did likewise on 8 November 1993
in cases filed before the Provincial Prosecutor of Pangasinan (Id., 236); and
10 November 1993 in cases filed with the City Prosecutor of Ozamiz City (Id.,
245).

73 Supra note 65.

74 192 SCRA 183, 188-189 [1990].

75 134 SCRA 438 [1985].

76 Dimayuga vs. Fernandez, 43 Phil. 304 [1922], and Fortun vs. Labang, 104
SCRA 607 [1981], cited in Brocka vs. Enrile, supra note 75.

NARVASA, C.J., concurring:

1 Sec. 1, Rule 112, Rules of Court.

73
2 Castillo v. Villaluz, 171 SCRA 39 (1989); Peo. v. Inting, 187 SCRA 788
(1990); Allado v. Diokno, 232 SCRA 192 (1994); Cruz, Jr. v People, 233
SCRA 43s9.

3 Crespo v. Mogul, 151 SCRA 462.

4 Lim v. Felix, 194 SCRA 292, citing Castillo v. Villaluz, 171 SCRA 39 and
Salta v. CA, 143 SCRA 228; SEE Sec. 2, Rule 112; Sec. 11 (b), PD No.
1275.

5 §1 Rule 112; Rules of Court.

6 Cojuangco v. PCGG, 190 SCRA 226, cited in Herrera, Remedial Law, Vol.
IV (1992 ed., p. 164); SEE Reyes v. Camilon, 192 SCRA 444 (1990); Cruz,
Jr. v. People, 233 fSCRA 439 (1994) citing Paderanga v. Drilon, et al., 196
SCRA 86 (1991).

7 Crespo, supra at note 2; Kwong Sing v. City of Manila, 41 Phil. 103.

8 Paderanga v. Drilon, 196 SCRA 86; cf. Brocka v. Enrile, 192 SCRA
183. SEE Ogburn v. Court of Appeals, 212 SCRA 483 (1992). N.B. Where,
however, the public prosecutor finds that probable cause exists as regards
several suspects but unaccountably files the information only against some,
but not all of them, mandamus will lie to compel him to include in the
indictment those he has excluded.

9 Go v. Court of Appeals, 224 SCRA 145; PNB v. Court of Appeals, 187

SCRA 735; Ongsiako v. IAC, 152 SCRA 627.

10 Par. 2 (D), §5 of Art. VIII, Constitution; Sec. 3 (c) and (e), Rule 122, Rules
of Court; SEE Sec. 17 (1), Judiciary Act and Sec. 22, Republic Act No. 7659.

11 See Peo. v. Jimenez, 235 SCRA 322; Geronimo v. Court of Appeals, 224
SCRA 494; BPI Credit Corporation v. Court of Appeals, 204 SCRA 601;
Medina v. Court of Appeals, 191 SCRA 218; Peo. v. Nemeria, 242 SCRA 448
(1995), citing Peo. v. Tidong, 225 SCRA 324 (1993); Peo. v. Simbulan, 214
SCRA 537 (1992); Peo. v. Saulo, 211 SCRA 888 (1992).

12 Rule 45, Rules of Court; see Pan Realty Corp v. Court of Appeals, 167
SCRA 564 and Del Pozo v. Penaco, 167 SCRA 577; Isabelo, Jr. v. Perpetual
Help College of Rizal, Inc., 227 SCRA (1993), citing Soriano III v. Yuson, 164
SCRA 226 (1988), etc.

13 Supra, at note 3.

14 Par. 2, §5 of Art. VIII, Constitution.

15 §30 of Art. VI, Constitution.

PUNO, J., dissenting:

74
1 Hubert Webb vs. Hon. Raul E. de Leon, et al., G.R. No. 121234.

2 167 SCRA 397-398 [1988]; see also People vs. Inting, 187 SCRA 788
[1990]; Lim, Sr. vs. Felix, 194 SCRA 292 [1991].

3 Lim, Sr. vs. Felix, 194 SCRA 292 [1991]; People vs. Inting, 187 SCRA 788
[1990]; Allado vs. Diokno, 232 SCRA 192 [1994].

4 Supra.

5 Brocka vs. Enrile, 192 SCRA 183, 188-189 [1990].

6 No. L-53373, June 30, 1987, 151 SCRA 462 471.

75
 Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. L-29129 May 8, 1975

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
DOMINGO MABUYO, defendant-appellant.

Office of the Solicitor General Felix V. Makasiar, Assistant Solicitor General Antonio G. Ibarra and
Solicitor Hector C. Fule for plaintiff-appellee.

Domingo M. Angeles for defendant-appellant.

MAKALINTAL, C.J.: ñé+ .£ªw ph!1

This is an appeal from the decision of the Court of First Instance of Batangas in its Criminal Case
No. 2486 finding the accused Domingo Mabuyo guilty beyond reasonable doubt of the crime of
murder, with treachery as the qualifying circumstance, and sentencing him to reclusion perpetua,
with all the accessory penalties provided by law; to indemnify the heirs of the deceased Norberto
Anillo in the sum of P6,000.00; and to pay the costs.

On June 18, 1966, at about midnight, Norberto Anillo was shot dead at the doorstep of his house in
Bo. Ambulong, Tanauan, Batangas. Immediately thereafter a police team headed by Lt. Roque
Garcia, Deputy Chief of Police of Tanauan, went to the scene of the incident and conducted an
investigation. Fifteen empty carbine shells were recovered from the premises. Agaton Anillo, the
father of the deceased, and Adelaida Mirania, the widow, when interviewed by Lt. Garcia, declined to
name the assailants but promised to go to his office after the interment to disclose to him their
identities.

Dr. Francisco M. Garcia, the Municipal Health Officer of Tanauan who performed the post mortem
examination of the deceased in the early morning of June 19, 1966, found eleven (11) gunshot
wounds on his body.

As promised, Agaton Anillo and Adelaida Mirania went to the Office of the Chief of Police of
Tanauan on June 20 and submitted themselves to a formal investigation. In their respective
statements they named Domingo Mabuyo as the triggerman and alluded to a certain Juan Mendoza
as the instigator of the crime. The following day, June 21, a complaint for murder was filed in the
Municipal Court of Tanauan against both Mendoza and Mabuyo. Upon a finding of a probable cause,
the municipal judge ordered the issuance of the corresponding warrants of arrest, but Domingo
Mabuyo was nowhere to be found.

Juan Mendoza waived his right to the second stage of the preliminary investigation and the
municipal court forwarded the record of the case to the Court of First Instance of Batangas, where

76
an information for murder was filed against him alone as principal by inducement. Upon a plea of
"not guilty" the accused went to trial, after which he was acquitted "on ground of reasonable doubt"
in a decision promulgated on January 7, 1967..

On March 27, 1967, Domingo Mabuyo presented himself at the Office of the Chief of Police of
Tanauan, but only to be fingerprinted since he had with him an order of release issued by the
Municipal Court. It appears that Mabuyo had previously prepared a bail bond in the sum of
P30,000.00, which was approved by the Municipal Judge. Through counsel Mabuyo waived his right
to the second stage of the preliminary investigation. Accordingly the municipal court in its order
dated March 27, 1967 elevated the case to the Court of First Instance of Batangas for further
proceedings. On April 5, 1967 the Provincial Fiscal filed the corresponding information for murder
against Mabuyo, alleging the circumstances of treachery and evident premeditation. The case went
to trial upon a "not guilty" plea. The widow of the deceased, who appeared to be the lone eyewitness
to the commission of crime, testified that at about midnight Of June 18, 1966, while she was reading
in bed, she heard her husband asking her to open the door. She stood up, and taking with her a
lighted kerosene lamp, went downstairs. Suddenly there were two successive gun shots. She heard
her husband cry out "aray," followed by a sound of a falling object. As she came near the door there
were other successive shots. Undaunted, she opened the door to see what was happening outside.
With the aid of the light of the kerosene lamp, which she was holding over her head, she saw
Domingo Mabuyo firing at her prostrate husband with what appeared to her to be a carbine. Mabuyo
aimed it at her, so she immediately closed the door and shouted for help. Shortly thereafter her
father-in-law, whose house was nearby, arrived. She told him that it was Domingo Mabuyo whom
she saw shooting her husband.

Another witness for the prosecution, Aniceto Sumarraga of Bo. Ambulong, narrated that on June 16,
1966, at about 10:00 o'clock in the evening, while he was at home reading, Domingo Mabuyo arrived
with a carbine. They talked briefly inside the house. Domingo Mabuyo inquired if he (the witness)
would go with him to kill Norberto Anillo. Aniceto refused, saying that he did not want to be involved
in any such undertaking. Domingo Mabuyo then told him that if that was his decision, then he alone
would go. After his visitor had left, Aniceto went to the store of a certain Alejandro Perez, also in Bo.
Ambulong, and played mahjong. He noticed that Norberto Anillo was also there watching the game.
As he was engrossed in the game Aniceto did not warn Norberto about Mabuyo's criminal design
against him. At about midnight Anillo left the store. A few minutes later the mahjong players heard
gun reports coming from the direction of Norberto Anillo's place. They stopped the game and went to
Anillo's house and there saw the lifeless body of Norberto Anillo lying on its face on the ground.

Testifying also for the prosecution, Agaton Anillo said that in the evening of June 18, 1966 he was at
his home. At about midnight he heard gun reports coming from the house of his son Norberto. At first
there were two shots, followed shortly by several more in rapid succession. When he was about to
go downstairs he heard the shouts of his daughter-in-law that her husband had been fired upon. He
ran to her house, where he saw his son already dead. His daughter-in-law met him and told him that
she had seen Domingo Mabuyo do the shooting.

Agaton Anillo further testified that on June 16, or two days before the fatal incident, his son told him
that there was a plot for his liquidation and that it was Domingo Mabuyo who would carry it out; that
on June 18 he (Agaton) saw Domingo passing in front of his house; and that after Norberto was
killed Domingo disappeared and went into hiding.

Domingo Mabuyo's defense was alibi. He claimed that early in the morning of June 3, 1966 he left
Bo. Ambulong, Tanauan, Batangas for Gabaldon, Nueva Ecija, arriving there at about 7:00 o'clock in
the evening, and did not return to Tanauan until March 27, 1967, when he surrendered to the
authorities. While away from home he worked in the logging concession of Gabaldon Vice-Mayor

77
Isabelo Aquino in Ibuna Estate, Dingalan, Quezon. In the evening of June 18, 1966, the date when
Norberto Anillo was killed, he was detained in the municipal jail of Gabaldon for drunkenness and
was released at about 8:00 o'clock the next morning. On March 23, 1967 he went to Dolores,
Quezon, with some members of the family of Vice-Mayor Aquino, and attended the annual Holy
Week rites of his religious sect known as "Iglesia dela Ciudad Mistica." While there somebody
informed him that he was being charged in court. At first he did not mind the information, but when
he happened to meet Atty. Juan Mendoza, who told him the same thing, he decided to surrender to
the authorities, On March 27, 1967 he and Atty. Mendoza went to Calamba, Laguna, and asked a
certain Patrolman Dionisio Samiano to accompany them to the Tanauan Police Department. While
he was at the Tanauan Police Department somebody fetched him and took him to the office of the
municipal judge, where he was asked to sign certain papers which turned out to be his bail bond.
After said bond was approved by the municipal judge he was ordered released temporarily from the
custody of the police authorities. He further claimed that he had no motive to kill the deceased
because the latter was not only his friend but also a nephew of his wife. He added that he was
Norberto's confidant even in connection with the latter's extra-marital affairs.

Corroborating the alibi of the accused, Vice-Mayor Isabelo Aquino of Gabaldon, Nueva Ecija,
testified that on June 2, 1966 he sent Antonio Berganos to Ambulong, Tanauan, Batangas to fetch
Domingo Mabuyo; that the following day, June 3, 1966, both Antonio Berganos and Domingo
Mabuyo arrived in Gabaldon, Nueva Ecija; that from June 6, 1966 to March 22, 1967, Domingo
Mabuyo worked under him as a laborer — first as a log cutter in his concession in Dingalan, Quezon
and then as a rattan gatherer; that Domingo Mabuyo stopped working on March 22, 1967 because
he went to Dolores, Quezon, to attend a religious ceremony of his sect; and that the distance from
Gabaldon, Nueva Ecija to Tanauan, Batangas could be negotiated by means of a bus in about ten
(10) hours. In the course of his testimony Aquino identified a time book he was keeping, wherein it
was shown that Domingo Mabuyo rendered services as one of his laborers from June 1966 to
November l966. Also identified by him were the payrolls from April 1966 to November 1966, showing
the amounts paid to Domingo Mabuyo from June 1966 to November 1966, and his signatures as
payee.

Gabaldon Police Chief Francisco Gamit testified on the entries in the police blotter of his department,
showing that Domingo Mabuyo was detained for drunkenness in the municipal jail on June 18, 1966
at 9:00 o'clock in the evening and released at 8:00 o'clock the next morning.

Another corroborating witness, Atty. Juan Mendoza, testified that in the first week of June 1966
Domingo Mabuyo was fetched from barrio Ambulong by Antonio Berganos, one of the laborers of
Vice-Mayor Aquino, to work in the logging concession of the latter in Dingalan, Quezon; that from the
time of Domingo Mabuyo's departure, it was only on March 23, 1967, in Dolores, Quezon, that they
met again; that upon meeting Domingo Mabuyo, he informed the latter that he was facing a court
charge for having allegedly killed Norberto Anillo and advised him to surrender immediately after the
festivities of their sect; that early in the morning of March 27, 1967 he and Mabuyo went to Calamba,
Laguna and asked Patrolman Samio of the Calamba Police to accompany them to the Tanauan
Police Department; and that from the time, they met each other in Dolores, he had Domingo Mabuyo
under his surveillance until he surrendered on March 27, 1967..

Upon the evidence presented the trial court rendered its judgment of conviction as aforestated;
hence, this appeal.

The appellant alleges that the trial court erred in convicting him of a crime not properly charged in
the information since he was charged with murder allegedly committed in Bo. Bagumbayan,
Tanauan, Batangas, but was found guilty of said crime committed in Bo. Ambulong, some 12
kilometers away in the same municipality and province. The alleged irregularity does not constitute a

78
reversible error. It is a settled rule that unless the particular place of commission is an essential
element of the offense charged, conviction may be had even if it appears that the crime was
committed not at the place alleged in the information, provided the place of actual commission was
within the jurisdiction of the court.1 In the instant case the place of commission does not constitute an
essential element of the offense charged and the evidence discloses that said offense was in fact
committed within the territorial jurisdiction of the trial court. Moreover, there is no reason to believe
that the appellant was misled or surprised by the variance between the proof and the allegation in
the information as to the place where the offense was committed.

With respect to the appellant's claim that he was denied the right to preliminary investigation, We
find the same to be without factual basis, it appearing from the order dated March 27, 1967 of the
Municipal Court of Tanauan that he "had renounced his right to the second stage of the preliminary
investigation." Furthermore, the record does not show that he raised the question of lack of
preliminary investigation at any stage of the trial in the court of first instance. It is well-settled that the
right to a preliminary investigation is not a fundamental right and may be waived expressly or by
silence.2

We now take up the merits of the case. In asking for his acquittal the appellant vigorously assails the
credibility of the prosecution witnesses, particularly the widow who identified him as the murderer of
her husband. He urges that since the testimonies of said witnesses as regards the guilt of Juan
Mendoza were not given credence, the same should likewise be rejected in his case in order to be
consistent. We cannot sustain the appellant. It is to be noted that in Criminal Case No. 2388 Juan
Mendoza was prosecuted on the theory that he directly induced the herein appellant, who was then
at large during the pendency of said case, to kill Norberto Anillo. In the case under review, the
appellant himself was charged as the sole author of the crime after the acquittal of his supposed
inducer. Under the foregoing factual setting, the trial, court aptly observed that the incredibility of the
witnesses for the prosecution against Juan Mendoza as principal by inducement did not necessarily
mean that said witnesses were also incredible when they testified against the very person who
allegedly shot to death the victim. In fact, it found that the testimonies of prosecution witnesses
Adelaida Mirania, Agaton Anillo and Aniceto Sumarraga against the appellant "were in accord to
what they disclosed in their written statements executed less than two days after the commission of
the imputed crime," but such was not the case when they testified against Juan Mendoza. In People
vs. Malillos,3this Court had occasion to state that: têñ.£îhqw â£

It is perfectly reasonable to believe the testimony of a witness with respect to some

facts and disbelieve it with respect to other facts. And it has been aptly said that even
when witnesses are found to have deliberately falsified in sonic material particulars, it
is not required that the whole of their uncorroborated testimony be rejected, but such
portions thereof deemed worthy of belief may be credited. Suffice it to say, in this
connection, that a trial court by reason of its proximate contact with witnesses, are in
a more competent position to discriminate between the true and the false, and We
really find no cogent reason to disturb the above-quoted conclusion of the court
below in the decision appealed from.

Adelaida Mirania could not possibly have been mistaken as to the identity of the appellant. She knew
him very well, he being from the same barrio where his house was not far away from hers. At the
time of the incident she was carrying a lighted kerosene lamp. Although the lamp was not presented
in evidence it was adequately described as a bottle of beer with the wick held in place at its mouth
by means of a tin plate. It is a common enough source of illumination in our barrios. Undoubtedly it
was sufficient to light an area within a radius of five meters.

79
While it is true that Adelaida Mirania did not report immediately to the Deputy Chief of Police the
identity of the assailant, it is to be noted that she promised to identify him after her husband was
interred, which she readily did by going to the police department where she executed a sworn
statement.

In a further attempt to discredit the identification made by Adelaida Mirania, the appellant insists that
she could not have possibly seen the assailant because, as testified to by Mateo Simbahan, she was
not at home at the time of the incident but in the house of her father-in-law, watching a game of
"bingo." However, the testimony of said witness contains flaws which render it unworthy of belief. He
went to Agaton Anillo's house, he said, in order to ask the latter to help him find a job. Yet he did not
talk to Agaton Anillo immediately upon his arrival but waited until midnight on the lame excuse that
he got interested watching the bingo game. Furthermore, considering that Adelaida Mirania had nine
(9) children and was then again pregnant, it is hardly believable that she would leave her house just
to watch the bingo game, remaining on her feet until midnight.

The appellant also insists that the widow pointed to him as the assailant because she was angry with
him because he refused to stop helping her late husband in his extra-marital affairs. We find this
motive insufficient for her to accuse him falsely of so grave a crime as murder. Besides, it is
unthinkable that she would fabricate evidence to send an innocent man to jail and let the real
murderer of her husband go free.

The appellant having been clearly and positively identified by the widow, his alibi cannot be
sustained. Moreover, after examining the evidence in support of his defense We find that his alibi
has the aspect of fabrication. Firstly, the police blotter of Gabaldon, Nueva Ecija, was not properly
accomplished. While the Chief of Police testified that the appellant was brought to the municipal jail
by his two policemen at about two o'clock in the afternoon of June 18, 1966, it appears in the blotter
that the appellant was detained at 9:00 o'clock in the evening. Also, while the appellant was
supposedly released on June 19, 1966 at 8:00 o'clock in the morning, the release was entered on
the page for June 18, 1966. It is a fair conclusion that the fact of release was entered on said page
because it could no longer be accommodated on the page for June 19, 1966, there being already
legitimate entries thereon and the blank spaces having been crossed out. The Chief of Police was
even surprised why the questioned entry appeared as it did. Secondly, as correctly observed by the
trial court, from all appearances the payrolls from April 1966 to November 1966 were all prepared at
the same time. Thirdly, the protestation of the appellant that he never knew that he was being
implicated in the killing of Norberto Anillo or that he was being charged in court therefor until he was
so informed by Juan Mendoza on March 23, 1967 is belied by the fact that even before that date he
had already taken steps to prepare his bail bond. It appears from the record that his bondsmen
secured the necessary papers in connection with their respective properties to be offered as security
on February 28, 1967 and that the bail bond itself was prepared on March 4, 1967. Lastly, if it were
true that he was working from June 1966 to March 1967 under Gabaldon Vice-Mayor Aquino and not
hiding from the authorities as alleged by the prosecution, he would at least have returned home to
visit his family during that long period. He never did, not even on Christmas day, which is traditionally
a day for family reunion. If anything, his long absence from his barrio supports the theory of the
prosecution that his flight immediately after the commission of the crime was not for any innocent
reason.

The trial court correctly appreciated the qualifying circumstance of treachery against the appellant.
The attack was sudden: the victim was knocking at the door and asking his wife to open it when he
was shot. Although he was apparently aware of the plot to liquidate him, the circumstances,
including the use by the appellant of a high power firearm, rendered the victim defenseless. The
mitigating circumstance of voluntary surrender cannot be considered in favor of the appellant. The
fact that it took him almost nine months after the issuance of the warrant of arrest against him before
he presented himself to the police authorities negates the spontaneity of his surrender.

80
The crime committed was murder, and there being neither mitigating nor aggravating circumstance,
the appellant was correctly sentenced to reclusion perpetua.

WHEREFORE, with the only modification that the indemnity payable to the heirs of the deceased
Norberto Anillo is increased from P6,000.00 to P12,000,00, the decision appealed from is affirmed
with costs.

Fernando, Barredo, Antonio, Aquino and Concepcion, Jr., JJ., concur. 1äwphï1.ñët

Footnotes têñ.£îhqw â£

1 U.S. vs. Smith, 3 Phil. 20; U.S. vs. Archos, 11 Phil. 555; U.S. vs. Tan Goy, 36 Phil.
974; Rule 110, Sec. 9, Rules of Court.

2 People vs. Mijares, 90 Phil. 102; People vs. Baluran, No. L-28582, March 25, 1970,
32 SCRA 71.

3 No. L-26568, July 29, 1968, 24 SCRA 133, 139.

81
 FIRST DIVISION

[G.R. No. 2733. March 27, 1906. ]

THE UNITED STATES, Plaintiff-Appellee, v. NICOLAS ARCEO, Defendant-Appellant.

Alfredo Chicote, for Appellant.

Solicitor-General Araneta, for Appellee.

SYLLABUS

1. JURISDICTION; JUDGES AND COURTS. — Jurisdiction is the power conferred by law upon a court or judge
to take cognizance of a case, to the exclusion of all other courts.

2. ORGANIZATION OF COURTS; COURTS OF FIRST INSTANCE. — Courts of justice shall be maintained in

very province in which civil government has been or shall be organized, as well as in the city of Manila.
(Secs. 1, 48, and 49 of the Organic Act, No. 136.)

3. JUDICIAL DISTRICTS. — Act No. 140 provides that the city of Manila shall constitute one judicial district
and that the other 14 districts shall severally consist of the provinces and islands of the Archipelago as
stated in said act.

4. JURISDICTION; LIMITS. — The judge presiding over the Court of First Instance of a district shall exercise
his jurisdiction within the territorial limits of his province, and no farther. He can not assume jurisdiction
over a case the cognizance of which pertains to another court.

5. ID.; CRIMINAL CASES. — All criminal cases shall be tried at the place designated by law for the holding of
the regular sessions of the proper court. (Sec. 6, Act No. 140.)

6. ID.; PLACE OF COMMISSION OF CRIME. — It is a general principle of law that the place where a crime is
committed is the first thin to be ascertained in determining the jurisdiction of judge or court.

7. JUDICIAL DISTRICTS; BOUNDARIES; INFERENCE. — Judicial divisions and boundaries of provinces and
districts are always fixed by law, so that any changes or alteration of the same can only be effected by
express legislative enactment and not by mere inference or deduction.

8. JURISDICTION; CITY OF MANILA; COURTS OF FIRST INSTANCE OF MANILA AND PROVINCE OF RIZAL. —
The enlargement of the administrative jurisdiction of the city of Manila for police not change or modify the
provisions of Act No. 140 in regard to the jurisdiction and territorial limits of the Court of First Instance of
the city of Manila and the Province of Rizal.

9. ID.; CRIMINAL CASES; NULLITY; PROCEEDINGS. — Proceedings had in a criminal case before a judge
acting without jurisdiction are void, but this fact will not preclude the filing of a new complaint upon the
dismissal of the former prosecution. (Sec. 23 of General Orders, No. 58.)

DECISION

TORRES, J. :

In a written complaint dated October 15, 1903, Nicolas Arceo Tanuco was charged by the assistant
prosecuting attorney of the city of Manila with the crime of illegal marriage. The complaint as filed sets forth
the following facts : That on or about May 1, 1901, the defendant, being the legal husband of one
Tranquilina Arcilia, willfully and illegally did enter into a second matrimonial bond with one Teodora de Guia
in the Province of Rizal within the police and court jurisdiction of Manila, the former matrimonial bond not
having been legally dissolved at the time.

The case having been tried upon the said complaint, it was shown, especially by the documentary evidence

82
introduced and which forms a part of the record, that according to a certificate of marriage (fol. 20) signed
by the pastor of the church at Bacolor, Pampanga, the defendant, Nicolas Arceo, did marry Tranquilina
Arcilia on February 3, 1897, in accordance with the rites of the Roman Catholic Church. The ceremony was
performed by Gregorio Dizon, a priest, in the presence of witnesses, in the parochial church of said pueblo
of Bacolor.

It was further shown that, according to a certificate signed by the secretary to the archbishop of Manila,
attached to the record (fol. 37), by a decree dated April 29, 1901, signed by the archbishop, the last two
banns were ordered suppressed at the request of the defendant in order to expedite his marriage with
Teodora de Guia, and in view also of the report from the pastor of Tambobong, which stated that the first
ban proclaimed in his church met with no opposition. The certificate further sets forth that the defendant
appeared before the pastor at Tambobong and declared that he was unmarried.

By virtue of said decree from the archbishop of Manila, the defendant was married on the 1st of May, 1901,
to Teodora de Guia, in accordance with a the rites of the Roman Catholic Church and in the presence of
witnesses in the church of Tambobong. The defendant signed the marriage papers as an unmarried man
(fol. 21), as testified by the Rev. Mateo Evangelista.

It was thus proved that the defendant did enter into a second marriage with Teodora de Guia while his first
wife, Tranquilina Arcilla, still lived (for. 98 of the record); that the marriage ceremony took place in the
pueblo of Tambobong, which is now included in the Province of Rizal, but formerly was part of the city of
Manila.

Assuming that article 471 of the Penal Code has been violated, and considering that the crime was
committed in the pueblo of Tambobong, which is now included in the territory of Rizal Province, the first
point to be determined is whether or not the judge who presided at the trial had jurisdiction to try the case.
The defense raised this point and questioned the right of the Court of First Instance of Manila to hear and
determine this case.

The decision of this court in the case of the United States v. C. M. Jenkins 1 (4 Off. Gaz., 523), wherein it
was held that the Court of First Instance of the city of Manila had no jurisdiction over crimes committed in
the Province of Rizal and within the 5-mile limit, as fixed by section 3 of Act No. 183, for police purposes,
has definitely settled the question of jurisdiction. The proceedings had in the lower court therefore void.

It is a general principle of law that the place where a crime is committed should be first ascertained in order
to determine the jurisdiction of the court of judge.

Act No. 140 fixes the territorial jurisdiction of the various courts of the Islands, including the Court of First
Instance of Manila. Although Act No. 183, section 3, extended the jurisdiction of the city government to a
radius of 5 miles for police purposes, it was never intended to confer upon the Court of First Instance of the
city of Manila jurisdiction over it. No other view can be taken, since Act No. 183, section 3, does not amend
or modify the jurisdiction of the courts prescribed in Act No. 140.

Any change in the territorial jurisdiction of a court enlarging or restricting the same can never be established
by mere deduction or inference. Judicial divisions and boundaries of provinces and districts are always fixed
by law. So that alterations of such boundaries can only be made in express terms by the legislative body.
Nothing to this effect is contained in Act No. 183, section 3, amending Act No. 140; therefore it is the
opinion of this court that the judgment of the court below should be, and it is hereby, set aside and the case
dismissed with costs de oficio.

It is also ordered that, in the event of the filing of a new complaint, the judge of the Court of First Instance
of Rizal shall proceed in accordance with law.

The court below and the Solicitor-General shall be notified of this decision and the record returned to the
interior court with a certified copy of this opinion and of the judgment to be entered in accordance herewith
for its execution. So ordered.

Arellano, C.J., Mapa, Johnson, Carson, Willard, and Tracey, JJ., concur.

83
 Republic of the Philippines
SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 77368 October 5, 1993

THE PEOPLE OF THE PHILIPPINES, petitioner,

vs.
HON. JOSE C. DE GUZMAN, PRESIDING JUDGE OF REGIONAL TRIAL COURT OF QUEZON
CITY, BRANCH 93, AND SPOUSES DANILO A. ALCANTARA AND ISABELITA ESGUERRA-
ALCANTARA, respondents.

The Solicitor General for petitioner.

VITUG, J.:

Is the crime of "fencing" a continuing offense that could allow the filing of an information therefor in
the place where the robbery or theft is committed and not necessarily where the property, unlawfully
taken is found to have later been acquired?

The above query is the sole issue in this Petition for certiorari and mandamus filed by the People of
the Philippines, praying for the reversal, annulment and setting aside of the Order of 28 February
19861 of the respondent Judge, who has ruled in the negative, as well as his Order, dated 21 March
1986,2 denying the motion for reconsideration. The petitioner prays that the respondent Judge be
directed to assume jurisdiction over, and to proceed with the trial of, the criminal case.

On 09 September 1985, robbery was committed in Quezon City in the house of Jose L. Obillos, Sr.,
where various pieces of precious jewelry alleged to be worth millions of pesos were taken. An
information, dated 30 September 1985, was instituted against the perpetrators in the Regional Trial
Court of Quezon City, Branch 101, docketed thereat asCriminal Case No. G.R. No. 42078.3

Subsequently, an information, dated 22 October 1985, for violation of Presidential Decree No. 1612,
otherwise known as the "Anti-Fencing Law," was also filed with the Regional Trial Court of Quezon
City, Branch 93, docketed as Criminal Case No. 42433, against herein respondent spouses Danilo
A. Alcantara and Isabelita Esguerra-Alcantara, from whose possession the jewelries stolen were
recovered in Antipolo, Rizal.4

The trial court, acting on the motion to quash filed by the accused [now private respondents], issued
the now questioned order of 28 February 1986, viz:

Before the Court is a Motion to Quash, filed by the accused thru counsel, praying that
the information filed against both accused be quashed, on the ground that the Court
has no jurisdiction to try the offense charged. Among others, the motion alleges, that
as per police investigation, the crime took place in Antipolo, Rizal. For this reason,
Violation of Presidential Decree No. 1612 is an independent crime, separate and

84
 distinct from that of Robbery. The accused claims, likewise, that jurisdiction to try the
same is with the Court within which territorial jurisdiction, the alleged fencing took
place.

The Prosecution filed an opposition thereto, alleging among others, that there
is nothing in the law which prohibits the filing of a case of fencing in the court under
whose jurisdiction the principal offense of robbery was committed. The prosecution
claims further, that the consideration in the enactment of PD 1612 was to impose a
heavier penalty on persons who profit by the effects of the crimes robbery or theft.

On this point, we should not lose sight of the fact that in all criminal prosecutions, the
action shall be instituted and tried in the court of the Municipality or Province wherein
the offense was committed, or anyone of the essential ingredients thereof took
place.5

Since the alleged act of fencing took place in Antipolo, Rizal, outside the territorial
jurisdiction of this Court, and considering that all criminal prosecutions must be
instituted and tried in the Municipality or Province where the offense took place, this
Court, necessarily, does not have jurisdiction over the instant case.

Wherefore, the above-entitled case is hereby QUASHED, without prejudice to the

filing of the corresponding action against the accused in the Court having proper
jurisdiction.

The private prosecutor's motion for reconsideration was denied in the court's order of 21 March
1986.

Hence, the instant petition.

The Solicitor General argues that since an essential element of the crime of fencing is the
commission of robbery, in this case committed in Quezon City, the information therefor filed in said
City accords with the provisions of Rule 110 of the 1985 Rules on Criminal Procedure, and the
refusal of the Court a quo to assume and exercise jurisdiction thereover constitutes a serious error of
law and a grave abuse of discretion. He theorizes that fencing is a "continuing offense." He explains
that the Anti-Fencing Law has been enacted for the purpose of imposing a heavier penalty on
persons who profit from the effects of the crime of robbery or theft, no longer merely as accessories
under Article 19, paragraph 1, of the Revised Penal Code, but as equally guilty with the perpetrators
of the robbery or theft itself.

In People vs. Ledesma,6 we said:

. . . A "continuous crime" is a single crime consisting of a series ofacts arising from a

single criminal resolution or intent not susceptible of division. According to Cuello
Calon, when the actor, there being unity of purpose and of right violated, commits
diverse acts each of which, although of a delictual character merely constitutes a
partial execution of a single particular delict, such concurrence of delictual acts is
called a "delito continuado." For it to exist there should be plurality of acts performed
separately during a period of time; unity of penal provision infringed upon or violated;
unity of criminal intent or purpose, which means that two or more violations of the
same penal provision are united in one and the same intent leading to the
perpetration of the same criminal purpose or aim.

85
Robbery is the taking of personal property belonging to another, with intent to gain, by means of
violence against or intimidation of any person, or using force upon anything.7 "Fencing", upon the
other hand, is the act of any person who, with intent to gain for himself or for another, shall buy,
receive, possess, keep, acquire, conceal, sell or dispose of, or shall buy and sell, or in any other
manner deal in any article, item, object or anything of value which he knows, or should be known to
him, to have been derived from the proceeds of the crime of robbery or theft.8

The crimes of robbery and fencing are clearly then two distinct offenses. The law on fencing does
not require the accused to have participated in the criminal design to commit, or to have been in any
wise involved in the commission of, the crime of robbery or theft. Neither is the crime of robbery or
theft made to depend on an act of fencing in order that it can be consummated. True, the object
property in fencing must have been previously taken by means of either robbery or theft but the
place where the robbery or theft occurs is inconsequential. It may not be suggested, for instance,
that, in the crime of bigamy which presupposes a prior subsisting marriage of an accused, the case
should thereby be triable likewise at the place where the prior marriage has been contracted.9

We are not unaware of a number of instances 10 when the Court would allow a change of venue in
criminal cases "whenever the interest of justice and truth so demand, and there are serious and
weighty reasons to believe that a trial by the court that originally had jurisdiction over the case would
not result in a fair and impartial trial and lead to a miscarriage of justice." 11 Here, however, we do not
see the attendance of such compelling circumstances, nor are we prepared to state that the lower
court gravely abused its discretion in its questioned orders.

WHEREFORE, the instant petition for certiorari and mandamus is DISMISSED, and the orders
appealed from are hereby AFFIRMED.

SO ORDERED.

Feliciano, Bidin, Romero and Melo, JJ., concur.

86
 Republic of the Philippines
SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 72994 January 23, 1991

FELICISIMO ROCABERTE, petitioner,

vs.
PEOPLE OF THE PHILIPPINES and HON. ANDRES S. SANTOS, Judge, RTC, Tagbilaran,
Bohol, respondents.

Lilio L. Amora for petitioner.

NARVASA, J.:

The case at bar treats of the sufficiency of the averment in the information of the time of the
commission of the felony of theft ascribed to petitioner Felicisimo Rocaberte and two (2) others. The
information, filed in the Regional Trial Court of Bohol, City of Tagbilaran,1 Judge Andres S. Santos,
presiding, reads as follows:2

The undersigned Assistant Provincial Fiscal hereby accused Felicisimo Rocaberte, Florencio
Ranario and Flaviana Ranario of the crime of Theft, committed as follows:

That on or about the Period from 1977 to December 28, 1983 at the off offshore of West
Canayaon, municipal of Garcia-Hernandez, province of Bohol, Philippines . . ., the above-
named accused, conspiring, confederating and helping each other, with intent to gain and
without the consent of the owner, did then and there, willfully, unlawfully and feloniously take,
steal and carry away the following properties, to wit:

One (1) pc. sledge hammer, valued at P136.00

One (1) pc. H beam, valued at 400.00

Two (2) cut abrasive steel plates for cargo

berth cover protector 158.00

Ninety-nine (99) blocks of aluminum, alloy

anodes at P3,750.00 each block P371,250.00
TOTAL P371,944.00

in the total amount of THREE HUNDRED SEVENTY-ONE THOUSAND NINE HUNDRED

FORTY-FOUR PESOS (P371,944.00), Philippine Currency, belonging to and owned by the
Philippine Sinter Corporation, to the damage and prejudice of the latter in the aforestated
amount.

87
 Acts committed contrary to the provisions of Articles 308, 309 of the Revised Penal Code.

The accused, thru counsel de officio, Atty. Lilio L. Amora, moved to quash the information,3 alleging
that the statement of the time of commission of the felony charged, "from 1977 to December 1983, . .
. a period of seven years," or "about 2,551 days," was fatally defective: there was "so great a gap as
to defy approximation in the commission of one and the same offense" (citing Peo. v. Reyes, 108
SCRA 203); "the variance is certainly unfair to the accused for it violates their constitutional right to
be informed before the trial of the specific charge against them and deprives them of the opportunity
to defend themselves . . ." (invoking Peo. v. Openia, 98 Phil. 698).

The motion was denied4 as was, too, the defendants' motion for reconsideration.5 In the motion for
reconsideration, the accused drew attention to Section 4, Rule 117 "of the 1985 Rules on Criminal
Procedure," as a remedy that could be alternatively granted, viz.:

Sec. 4. Amendment of complaint or information. — If the motion to quash is based on an

alleged defect in the complaint or information which can be cured by amendment, the court
shall order the amendment to be made. (2a)

Felicisimo Rocaberte then instituted in this Court, thru his aforenamed counsel de oficio, the special
civil action of certiorari at bar, impugning the denial by respondent Judge Santos of his motion to
quash, or his refusal, at the very least, to direct the amendment of the information pursuant to
Section 4, Rule 117 of the 1985 Rules of Court, supra. He is correct, and will be granted appropriate
relief.

The rules of criminal procedure declare6 that —

. . . A complaint or information is sufficient if it states the name of the defendant; the

designation of the offense by the statute; the acts or omissions complained of as constituting
the offense; the name of the offended party; the approximate time of the commission of the
offense, and the place wherein the offense was committed.

and — as regards the time of the commission of the offense, particularly — that:7

. . . It is not necessary to state in the complaint or information the precise time at which the
offense was committed except when time is a material ingredient of the offense, but the act
may be alleged to have been committed at any time as near to the actual date at which the
offense was committed as the information or complaint will permit.

In line with this last mentioned rule, a variance of a few months between the time set out in the
indictment and that established by the evidence during the trial has been held not to constitute an
error so serious as to warrant reversal of a conviction solely on that score. Hence, where the
information sets the date of commission of a robbery at March 25, 1900, evidence was allowed to
show that the offense was actually perpetrated on the 5th or 6th of March; and an amendment of an
information so as to change the year therein stated to that following it, was allowed it appearing that
the alteration impaired none of the defendant's rights.8

Where, however, there was a variance of several years between the time stated in the information,
1947, and the proof of its actual commission adduced at the trial, 1952, the dismissal of the case by
the Trial Court was sustained by this Court, since to allow amendment of the indictment to conform
to the evidence would be violative of defendant's constitutional right to be informed of the nature and
cause of the accusation against him.9

88
Again, the statement of the time of the commission of the offense which is so general as to span a
number of years, i.e., "between October, 1910 to August, 1912," has been held to be fatally defective
because it deprives the accused an opportunity to prepare his defense.10

A defect in the averment as to the time of the commission of the crime charged is not, however, a
ground for a motion to quash under Rule 116 of the Rules of Court. Even if it were, a motion for
quashal on that account will be denied since the defect is one that can be cured by amendment;
instead, the court shall order the amendment to be made by stating the time with particularity.11

The remedy against an indictment that fails to allege the time of the commission of the offense with
sufficient definiteness is a motion for a bill of particulars, provided for in Section 6, Rule 116 of the
Rules of Court of 1964.12

Bill of particulars. — Defendant may, at the time of or before arraignment, move for or
demand a more definite statement or a bill of particulars of any matter which is not averred
with sufficient definiteness or particularity to enable him properly to plead or prepare for trial.
The motion shall point out the defects complained of and the details desired.

From all that has been said, the conclusion should be clear. The information against petitioner
Rocaberte is indeed seriously defective. It places on him and his co-accused the unfair and
unreasonable burden of having to recall their activities over a span of more than 2,500 days. It is a
burden nobody should be made to bear. The public prosecutor must make more definite and
particular the time of the commission of the crime of theft attributed to Rocaberte and his co-
defendants. If he cannot, the prosecution cannot be maintained, the case must be dismissed.

WHEREFORE, the petition is GRANTED, and the writ of certiorari prayed for is ISSUED,
ANNULLING AND SETTING ASIDE the challenged Orders of respondent Judge dated August 12,
1985 and September 10, 1985 in Criminal Case No. 3851, and DIRECTING the amendment of the
information in said case by the prosecution within such time as the respondent Judge may deem
proper, failing which the criminal prosecution against the petitioner and his co-defendants shall be
dismissed.

SO ORDERED.

Cruz, Gancayco, Griño-Aquino and Medialdea, JJ., concur.

Footnotes

1
Dated June 19,1984, docketed as Crim. Case No. 3851.

2
Rollo, p. 10 emphasis supplied.

3
Id., pp. 11-12; the motion to quash is dated January 2, 1985.

4
Id., p. 15.

5
Id., pp. 16-18.

89
6
Sec. 5, Rule 110, Rules of Court of 1964, emphasis supplied; the rule has not been
modified by the 1985 and 1988 amendments of the rules of criminal procedure, except that
the section has been renumbered, it now being Sec. 6 of Rule 110.

7
Sec. 10, Rule 110; neither has this section, now numbered Sec. 11, been modified by the
1985 and 1988 amendments of the rules of criminal procedure.

8
SEE Moran, Comments on the Rules, 1980 ed., Vol. 4, p. 38, citing U.S. v. Cardona, 1 Phil.
381 as well as U.S. v. Tan Guy 36 Phil. 974; Santos v. Supt. of Phil. Training School, 55 Phil.
345; U.S. v. Ramos, 23 Phil. 300; See also, Gupit, Rules of Criminal Procedure, 1986 ed.,
pp. 74-75.

9
Peo. v. Openia, 98 Phil, 698 (1956), cited in Gupit, op. cit., p. 75.

10
U.S. v. Dichao, 27 Phil. 421 (1914), cited in Gupit, op. cit., p. 75; Moran, op. cit., p. 37.

Last paragraph, Sec. 2, Rule 117, Rules of Court of 1964, now Sec. 4, Rule 117 under the
11

1985 amendments.

Now, under the 1985 and 1988 amendments, Section 10, Rule 116, reading: "Accused
12

may, at or before arraignment, move for a bill of particulars to enable him properly to plead
and to prepare for trial. The motion shall specify the alleged defects and the details desired."

90
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-12453 July 15, 1918

THE UNITED STATES, plaintiff-appellee,

vs.
PEDRO LAHOYLAHOY and MARCOS MADANLOG, defendants-appellants.

W. A. Kincaid for appellants.

Attorney-General Avanceña for appellee.

STREET, J.:

This case is submitted to the Supreme Court for review of a decision of the Court of First Instance of
the Province of Iloilo, sentencing the defendants Pedro Lahoylahoy and Marcos Madanlog to death
upon a complaint charging the crime of robbery with multiple homicide under the circumstances
stated below.

It appears that in the year 1912 some ten or a dozen people were living on the small island of
Sicogon, in the jurisdiction of the municipality of Balasan, Province of Iloilo. Two of these were an
aged couple named Francisco Seran and his wife Juana. Two others were Roman Estriba and his
wife Rosa. The latter couple had two children Miguela and Bartolome, aged at that time respectively
about 14 and 9 years. Upon the night of the commission of the crime charged in the complaint the
two children were staying with Juana, their grandmother, in a house some distance removed from
that occupied by Roman and Rosa and located farther back from the shore. The grandfather,
Francisco, had gone to the beach as was his custom to watch for turtles. After the grandmother and
the children had gone to rest on a mat where they slept together, and probably only a short while
after it had become dark, the two accused appeared and demanded money of Juana. She gave
them P100 in money in response to this demand, and the accused then required the three to leave
the house and go in the direction of the sea. When the party had arrived at or near the beach, a
further demand was made upon the old woman for money, which demand she was unable to comply
with. Lahoylahoy then struck her with a bolo just below her breast, killing her instantly. The two
children were at the time close to their grandmother, and being greatly frightened, they ran away
separately for some distance and remained hidden during the night in the bushes.

The next morning the children made their way to the house where the old couple had lived, which
was vacant; but they there found each other and proceeded together to the house of their parents.
Going in that direction they stopped at the house of their sister, the wife of the defendant Madanlog.
When they went a little later to the house where their parents had lived, the fact was revealed that
Francisco, Roman, and Rosa had also been killed. All the bodies were collected and buried early in
the morning by the two accused, assisted by Eugenio Tenedero, son-in-law of Lahoylahoy. The two
children Miguela and Bartolome say that they were threatened with death if they should make
complaint. Nevertheless their lives were spared, and for sometime they stayed with their sister in the
home of Madanlog; and after staying for a long time on the island, they were afterwards taken to the
home of another sister, named Dionisia Estriba, at Escalante, on the Island of Panay. They here
revealed the facts above narrated. This sister, Dionisia, afterwards filed the complaint in this case.
Pedro Lahoylahoy was arrested first; and when he was examined before the justice of the peace, he

91
made a confession in which he stated that the four deceased persons had been killed by Madanlog,
with is assistance.

At the trial the two children gave a very consistent account of the robbery and of the murder of their
grandmother; but the boy said that he did not remember that Madanlog was present when
Lahoylahoy struck the fatal blow. Another important witness for the prosecution was Eugenio
Tenedero, the son-in-law of Lahoylahoy. This witness testified that the defendants killed the four
deceased persons, and that early in the morning they came to his house and required him to help
them bury the dead, which he did. The accused gave no explanation to Tenedero of their motive or
of the reason for the commission of the deed, and told him not to tell anybody. During the next day
or two after the tragedy above narrated, the defendant Madanlog went to the house where Francisco
and Juana had lived and carried away some palay, some dawa, three pigs, and a trunk containing
wearing apparel. We believe that the asportation of these things should not be considered as a
continuation of the acts of robbery and murder previously committed, but rather as a spoliation of the
state of a deceased person. It results that the only property taken in the act of robbery was the P100
obtained from Juana.

As against Madanlog, the case rests chiefly upon the testimony of Miguela, who says he was
present at the robbery and at the murder of Juana. His guilt is also indicated by his own conduct
subsequent to the murder. We are satisfied with the conclusion reached by the lower court with
respect to the sufficiency of the evidence, and we have no doubt of the guilt of both the accused.

An important question arises upon the matter of the complaint in connection with the proof as to the
ownership of the property which was taken by the accused. The part of the complaint here material
to be considered reads as follows:

The aforesaid accused taking advantage of the darkness of the night, voluntarily, illegally,
and criminally and by means of force on the things, took and appropriated to themselves with
intent of gain and against the will of the owner thereof, the sum of P100, 5 bayones of palay,
4 bayones of dawa, and 1 trunk which contained various wearing apparel, of the total value
of P150, the property of Roman Estriba; in consequence thereof and on the occasion of the
said robbery, the aforesaid accused criminally and with known premeditation and treachery,
killed Roman Estriba, Rosa Galoso, Francisco Seran, and Juana.

According to the proof the person robbed was Juana; while the complaint charges that the
property taken belong to Roman Estriba. What is the effect of this variance between the
language of the complaint and the proof? Subsection 5 of section 6 of General Orders No. 58
declares that a complaint or information shall show, among others things, the names of the
persons against whom, or against whose property, the offense was committed, if known. The
complaint in this case therefore properly contained an averment as to the ownership of the
property; and upon principle, in charging the crime of robbery committed upon the person,
the allegation of the owner's name is essential. But of course if his name cannot be
ascertained, it may be alleged that it is unknown.

From the fact that the name of the injured person may, in case of necessity, be alleged as
unknown it should not be inferred that the naming of such person, when known, is of no
importance. Where the name of the injured party is necessary as matter of essential
description of the crime charged, the complaint must invest such person with individuality by
either naming him or alleging that his name is unknown. (Wharton, Criminal Pleading and
Practice, 9th ed., secs. 111, 112.) It is elementary that in crimes against property, ownership
must be alleged as matter essential to the proper description of the offense.

92
 To constitute larceny, robbery, embezzlement, obtaining money by false pretenses,
malicious mischief, etc., the property obtained must be that of another, and indictments for
such offenses must name the owner; and a variance in this respect between the indictment
and the proof will be fatal. It is also necessary in order to identify the offense. (Clark's
Criminal Procedure, p. 227. See also page 338.)

Now a complaint charging the commission of the complex offense of robbery with homicide must
necessarily charge each of the component offenses with the same precision that would be
necessary if they were made the subject of separate complaints. It is well recognized in this
jurisdiction that where a complex crime is charged and the evidence fails to support the charge as to
one of the component offenses the defendant can be convicted of the other. The mere circumstance
that the two crimes are so related as to constitute one transaction in no way affects the principles of
pleading involved in the case. To permit a defendant to be convicted upon a charge of robbing one
person when the proof shows that he robbed an entirely different person, when the first was not
present, is violative of the rudimentary principles of pleading; and in addition, is subject to the
criticism that the defendant is thereby placed in a position where he could not be protected from a
future prosecution by a plea of former conviction or acquittal. If we should convict or acquit these
defendants today of the robbery which is alleged to have been committed upon the property of
Roman Estriba, it is perfectly clear that they could be prosecuted tomorrow for robbery committed
upon the property of Juana; and the plea of former jeopardy would be of no avail.

Reference to a few accredited decisions from American courts will make this clear.

In Comm. vs. Hoffman (121 Mass., 369), it was held that an acquittal on an indictment for breaking
and entering the dwelling house and stealing therein, the property of A, is no bar to a complaint for
stealing in the same dwelling house at the same time the property of B, without proof that A and B
are the same persons.

In Comm. vs. Andrews (2 Mass., 409), the defendant in an indictment for receiving stolen goods
which were the property of A, alleged that he had been convicted of receiving stolen goods the
property of B. The plea was adjudged insufficient, although it was alleged that the two parcels of
stolen goods were received by the defendant of the same person, at the same time, and in the same
package, and that the act of receiving them was one and the same.

In Alexander vs. State (21 Tex. Cr. App., 406; 57 Am. Rep., 617), it was held that where the goods
of two different owners were stolen at the same time, an acquittal on an indictment for stealing the
goods of one would not constitute a bar to an indictment for stealing the goods of the other; though it
was observed that if the defendant had been convicted upon the first trial, he would have been
protected from the second prosecution. (See Wright vs.State, 17 Tex. Cr. App., 152.)

In Comm. vs. Wade (17 Pick. [Mass.], 395), the offense of burning a building was charged, and the
indictment stated that the owner was a certain individual (naming him). It was held that, although the
name might possibly have been omitted altogether, yet as the indictment did allege the name, the
allegation of ownership was material, being descriptive of the offense, and must be proved.

It should be borne in mind that the plea of former conviction or acquittal, or former jeopardy, is
supposed to be proved by the pleadings and judgment in the former case, supplemented only by
proofs showing the identity of the party, or parties. Courts are not accustomed to determine the plea
of former jeopardy by examining the proof to discover just what facts may have been developed in
the former case. (Henry vs. State, 33 Ala., 389; Grisham vs.State, 19 Tex. Cr. App., 504.) In fact it is
not always practicable or even possible to produce for inspection upon the trial of this issue the
evidence which was adduced in court at the trial of the former case.

93
The second sentence of section 7 of General Orders No. 58 declares that when an offense shall
have been described with sufficient certainty to identify the act, an erroneous allegation as to the
person injured shall be deemed immaterial. We are of the opinion that this provision can have no
application to a case where the name of the person injured is matter of essential description as in
the case at bar; and at any rate, supposing the allegation of ownership to be eliminated, the robbery
charged in this case would not be sufficiently identified. A complaint stating, as does the one now
before us, that the defendants "took and appropriated to themselves with intent of gain and against
the will of the owner thereof the sum of P100" could scarcely be sustained in any jurisdiction as a
sufficient description either of the act of robbery or of the subject of the robbery. There is a saying to
the effect that money has no earmarks; and generally speaking the only way money, which has been
the subject of a robbery, can be described or identified in a complaint is by connecting it with the
individual who was robbed as its owner or possessor. And clearly, when the offense has been so
identified in the complaint, the proof must correspond upon this point with the allegation, or there can
be no conviction.

In United States vs. Kepner (1 Phil. Rep., 519), this court had before it a case where the defendant
was charged with estafa in the misappropriation of the proceeds of a warrant which he had cashed
without authority. It was said that the erroneous allegation in the complaint to the effect that the
unlawful act was to the prejudice of the owner of the check, when in reality the bank, which cashed
the warrant was the sufferer, was immaterial. This observation was, we think, correct as applied to
that case, for the act constituting the offense of estafa was described in the complaint with sufficient
fullness and precision to identify the act, regardless of the identity of the offended person. Section 7,
General Orders No. 58, was therefore properly applicable. It should be added, however, that the
observation to which reference has been made was, strictly speaking, unnecessary to the decision,
for it is further stated in the opinion that there was in fact an injury to the owner of the check, which
consisted of the "delay, annoyance, and damage caused by the unlawful misappropriation of the
warrant." (U.S. vs. Kepner, 1 Phil. Rep., 519, 526.) There is evidently nothing in the case cited which
can afford support for the idea that an erroneous allegation in a complaint as to ownership of the
property robbed is immaterial. If we should hold that a man may be convicted of robbing one person
when he is charged with robbing another, the complaint instead of being a means of informing him of
the particular offense with which he is charged would rather serve as a means of concealing it.

It is important to note that the complaint in this case is not defective in form, for the charge is clear,
direct, and unambiguous. No formal objection could possibly be made by the defendants to this
complaint; and their only course, if desirous of making any defense, was to plead not guilty, as was
done in this case. The difficulty of the case arises from the facts adduced in evidence. Section 10,
General Orders No. 58, declares that no complaint is insufficient by reason of a detect in matter of
form which does not tend to prejudice a substantial right of the defendant upon the merits. This
provision has no application to such a case as that now before us; and all arguments based upon
the circumstance that the defendants made no objection to the complaint in the Court of First
Instance are irrelevant to the matter in hand.

The case of United States vs. Manalang (2 Phil., Rep., 64) has been called to our attention as an
authority upon the point that insufficiency of a complaint is waived by failure of the defendant to
object thereto in the Court of First Instance. It there appeared that the statutory offense with which
the defendant was charged could only be committed by a Constabulary officer. There was no
allegation in the complaint that the defendant was such; but he appeared at the trial, testified in his
own behalf, without questioning his character as such officer. It was held upon appeal that the
objection to the complaint on the ground stated was unavailing, "as no exception was taken to this
defect by counsel for the defendant in the court below, in which it might have been successfully
raised by demurrer."

94
The following cases are also found in our Reports, showing that a complaint may be held sufficient
although the commission of the offense is charged by inference only, provided no objection is made
in the court below. (U.S. vs.Cajayon, 2 Phil. Rep., 570; U.S. vs. Vecina, 4 Phil. Rep., 529;
U.S. vs. Sarabia, 4 Phil. Rep., 566.) In all of these cases the complaint was demurrable for defect of
substance, but the language used was so far sufficient that the commission of the crime could be
inferred. These cases are not relevant to the case at bar, as the complaint is not demurrable for
defect of any sort.

In the light of what has been said it is evident that, by reason of the lack of conformity between the
allegation and the proof respecting the ownership of the property, it is impossible to convict the two
accused of the offense of robbery committed by them in this case; and therefore they cannot be
convicted of the complex offense of robbery with homicide, penalized in subsection (1) of article 503
of the Penal Code. No such difficulty exists, however, with respect to the quadruple homicide
committed upon the persons named in the complaint; and in conformity with the provisions of article
87 of the Penal Code, the penalties corresponding to all these crimes must be severely imposed.
This court has already held in United States vs. Balaba (37 Phil. Rep., 260), that where more than
one offense (not complex offenses) are charged in the complaint, and the accused fails to demur or
ask for a severance, the penalties corresponding to all of the offenses which are charged and proved
may be imposed. The doctrine announced in that case applies with even greater propriety offenses
in one complaint. (See sec. 11, General Orders No. 58.)

The acts causing the violent death of the four deceased must be qualified as homicide, as the record
does not satisfactorily show how and in what manner they were executed.

Even conceding the benefits or article 11 of the Penal Code, this circumstance, as regards both
defendants is counterbalanced by the aggravating circumstances of nocturnity and that the crime
was committed in an uninhabited place, and, as respects Marcos Madanlog, by that of relationship
by affinity. The accused Pedro Lahoylahoy has accordingly become liable to four penalties, each of
seventeen years four months and one day, reclusion temporal, and his co-accused Marcos
Madanlog also, to the same number of penalties of twenty years each, reclusion temporal, for the
homicide of the four deceased, each also being liable to one-half of the costs.

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

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

Separate Opinions

MALCOLM, J., dissenting:

The defendants were charged in the Court of First Instance of Iloilo with the crime of robbery with
murder. The crime took place on a small island where the deceased lived together. The defendants

95
were found guilty and given the death penalty. The proof in relation to the law shows conclusively
that they merit such punishment.

The information charged that the owner of the property was Roman Estriba while the evidence
disclosed that the owner was Juana N. Seran. No objection to the information was made in the lower
court. Objection to its insufficiency was therefore waived. (U.S. vs. Manalang [1903], 2 Phil. Rep.,
64.) Notwithstanding, and although neither the attorney for the defendant nor the Attorney-General
raises the point on appeal, this court would, by hypercritical examination, now solemnly adjudge the
information to be fatally defective and would thereby cheat the gallows of its prey. Conceding that
the court has this prerogative, yet no substantial right of the defendants was prejudiced. Neither the
trial court, the prosecution, nor the defense were misled as to the issue being that robbery and
murder were simultaneously committed. As to which one of the group had title to the property was
relatively unimportant. Such a technical finding in my judgment violates both the letter and the spirit
of our law and jurisprudence. "The bill of rights for the Philippines giving the accused the right to
demand the nature and cause of the accusation against him does not fasten forever upon those
Islands the inability of the seventeenth century common law to understand or accept a pleading that
did not exclude every misinterpretation capable of occurring to intelligence fired with a desire to
pervert." (Paraiso vs. U.S. [1907], 207 U.S., 368; Whitehead vs. U.S. [1917], 245 Fed., 385; and a
multitude of corroborative authority.) To liberalize and modernize procedure should be our goal.

Judgment should be affirmed.

Fisher, J., concurs.

96
 EN BANC
[G.R. No. L-8596. May 18, 1956.]
THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellant, vs. JULIANA UBA and CALIXTA UBA, Defendants-
Appellees.

DECISION
LABRADOR, J.:
Appeal by the People against a judgment of the Court of First Instance of Misamis Occidental, absolving
Juliana Uba and Calixta Uba of the offense of oral defamation of which they are charged in an information
filed by the provincial fiscal.
On August 1, 1952, Demetria Somod-ong filed a complaint in the justice of the peace court of Oroquieta,
Misamis Occidental, charging above-named Juliana and Calixta Uba with having uttered in public against
complainant certain defamatory words and expressions. The complaint was supported by the affidavits
of Pastora Somod-ong, Marciano Calibog and Anacoreta Rocaldo. The court found the existence of
probable cause and forwarded the case to the Court of First Instance, where the provincial fiscal filed the
information charging the accused Juliana and Calixta Uba of serious oral defamation. However, instead of
mentioning the complainant Demetria Somod-ong as the offended party, the information named Pastora
Somod-ong as the person offended.
When the case came for trial both Demetria and Pastora testified for the prosecution. Demetria is the
daughter of Pastora and when the latter testified she declared that it was her daughter Demetria who
was insulted by the accused. When Demetria testified she declared the accused insulted her corroborating
her mother’s testimony. Two other witnesses testified that the accused insulted Demetria Somod-ong
calling her lascivious and a prostitute. When the prosecution had rested, counsel for the accused promptly
moved for the dismissal of the case on the ground that all the defamatory statements supposed to have
been uttered by the accused were against Demetria, not against the offended party, Pastora. The judge
then ordered counsel for the parties to present the motion and the answer thereto in writing which they
did. The judge sustained the motion to dismiss and entered decision acquitting the accused of the charge.
Hence, this appeal.
The Solicitor General contends in this appeal that the trial court should have ordered the fiscal to amend
the information by changing the name of the offended party so as to make it conform with the evidence.
It is claimed that the change would merely be one of form, permitted by Section 13 of Rule 106, which
provides:chanroblesvirtuallawlibrary

“SEC. 13. Amendment. — The information or complaint may be amended, in substance or form, without
leave of court, at any time before the Defendant pleads; and thereafter and during the trial as to all
chan roblesvirtualawlibrary

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 Defendant.
If it appears at any time before judgment that mistake has been made in charging the proper offense, the
court may dismiss the original complaint or information and order the filing of a new one charging the
proper offense, provided the Defendant would not be place thereby in double jeopardy, and may also
require the witnesses to give bail for their appearance at the trial.”
While it is probably true that the fiscal or his clerk made a clerical error in putting in the information the
name of Pastora Somod-ong instead of that of Demetria Somod-ong, as the offended party, the mistake

97
thus committed was on a very material matter in the case, such that it necessarily affected the
identification of the act charged. The act of insulting X is distinct from a similar act of insult against Y, even
if the insult is preferred by the same person, in the same language and at about the same time. Note that
the pleading that give the court jurisdiction to try the offense is not the complaint of the offended party,
but the information by the fiscal, because the charge is the utterance of insulting or defamatory language,
not the imputation of an offense which can be prosecuted only at the instance of the offended party.
(People vs. Marquez, 68 Phil., 521; Blanco vs. People, 70 Phil., 735.)
chan roble svirtualawlibrary

The case of Lahoylahoy, 38 Phil., 330, appears to us to be in point and decisive of the case. The reasons
for the decision in that case were, first, because, to convict a person of robbing X when the person robbed
is Y is violative of the principles of pleading and, second, because then the plea of double jeopardy would
be of no avail to an accused. To this same effect is our decision in People vs. Balboa, 90 Phil., 5.
We, therefore, find that the court a quo did not err in dismissing the case for variance between the
allegations of the information and the proof. But the evidence showed that the accused were guilty of
another act, that of insulting Demetria Somod-ong. The Court should have, therefore, ordered the fiscal
to file another information with Demetria Somod-ong as the offended party and hold the accused in
custody to answer the new charge.
The order of dismissal is hereby affirmed, but the provincial fiscal of Misamis Occidental is hereby ordered
to file a new information charging the same accused with the offense of serious oral defamation against
Demetria Somod-ong. Judgment modified.
Paras, C.J., Bengzon, Padilla, Montemayor, Reyes, A., Jugo, Bautista Angelo, Concepcion, Reyes, J.B.L.,
and Endencia, JJ., concur.

98
 EN BANC

G.R. No. L-6544 August 25, 1954

THE PEOPLE OF THE PHILIPPINES,Plaintiff-Appellee, vs. ALBERTO

COSARE,Defendant-Appellant.

Mario Ll. Rama for appellant.

Office of the Solicitor General Juan R. Liwag and Solicitor Juan T. Alano for
appellee.

BAUTISTA ANGELO, J.:

This is an appeal from a decision of the Court of First Instance of Bohol finding the
accused guilty of the crime of qualified trespass to dwelling with the aggravating
circumstance of nocturnity and sentencing him to suffer 4 months and 1
day arresto mayor, to pay a fine of P100, with subsidiary imprisonment in case of
insolvency, and to pay the costs.chanroblesvirtualawlibrary chanrobles virtual law
library

On July 1, 1950, one Valeria Pagas filed against the accused a complaint for "Abuse
Against Chastity". The complaint was subscribed to by her as required by law. On
August 3, 1950, the complaint was amended by the Acting Chief of Police charging
the accused with "Qualified Trespass to Dwelling and Physical Injuries", and on
September 23, 1950, the complaint was further amended by the Chief of Police
charging the accused with the same offense of "Qualified Trespass to Dwelling and
Physical Injuries." The Justice of the Peace of Tubigon, Bohol, with whom the above
mentioned complaints were filed, conducted the preliminary investigation having in
view the second amended complaint. Thereafter, the Justice of the Peace forwarded
the case to the Court of First Instance for further
proceedings.chanroblesvirtualawlibrary chanrobles virtual law library

On January 24, 1951, the Provincial Fiscal filed against the accused an information
charging him with the offense of "Acts of Lasciviousness", which was amended on
August 29, 1951, charging him with the offense of "Acts of Lasciviousness Thru
Qualified Trespass to Dwelling." In the meantime, the accused filed a motion to
quash the information on the ground of lack of jurisdiction, which motion was
denied in an order of September 1, 1951. The accused was then arraigned and
entered a plea of not guilty.chanroblesvirtualawlibrary chanrobles virtual law library

On April 3, 1952, the case was called for trial, and it was at this instance that
counsel for the accused reiterated his motion to quash on the plea that the accused
was given the benefit of preliminary investigation, not in connection with the
complaint filed by the offended party, but with that filed by the Chief of Police of
Tubigon, a matter which places the case beyond the jurisdiction of the court, and
considering this plea tenable, the court, on the same date, ordered that the case be
remanded to the Justice of the Peace of Tubigon in order that a new preliminary
investigation may be held in connection with the original complaint filed by the

99
offended party. This was done after the offended party had filed an amended
complaint charging the accused with the offense of "Acts of Lasciviousness." The
case was again forwarded to the Court of First Instance and on August 25, 1952,
the Provincial Fiscal, filed against the accused an information charging him with the
same crime of "Acts of Lasciviousness."chanrobles virtual law library

When the case was called for trial based on the new information, the accused again
filed a motion to quash, this time based on the ground of double jeopardy. The
motion was denied, and after the parties had presented their evidence, the court
rendered decision acquitting the accused of the charge of acts of lasciviousness but
finding him guilty of qualified trespass to dwelling and imposing upon him the
penalty as stated in the early part of this decision. From this decision the accused
has appealed.chanroblesvirtualawlibrary chanrobles virtual law library

The accused poses in this appeal the following issues: (a) Can be convicted of a
crime alleged merely in the information as an aggravating circumstance after
having been acquitted of the main charge described therein?; and (b) Has he been
placed on double jeopardy?chanrobles virtual law library

(a) It should be noted that the crime with which the accused is charged in this case
appears to be designated as "Acts of Lasciviousness" in the caption of the amended
complaint filed against him on April 29, 1952, and in that of the new information
filed by the Provincial Fiscal on August 25, 1952, after the case had been elevated
for the second time by the Justice of the Peace of the Court of First Instance.
Apparently, the charge under which he stands indicted is that of "Acts of
Lasciviousness", for that is the designation appearing both in the complaint as well
as in the information. However, upon a cursory reading of the avernment appearing
in both pleading one cannot fail to note that what is charged against the accused is
not only the offense of "Acts of Lasciviousness" but that of trespass to dwelling as
well. This is apparent from the allegation appearing therein that the accused
entered the dwelling house of Valeria Pagas against her will, and that "once inside
the said dwelling house the said accused, with lewd designs and by the use of force,
embraced, kissed, raised the dress and touched the breast and private part of the
aforesaid Valeria Pagas against her will." There is nothing appearing therein
that trespass to dwelling is merely an aggravating circumstance. Such being the
case, it is evident that the accused can be found guilty, if proven, on both charges,
in the absence of a timely objection against such duplicity of charge. Here the
record discloses none. The objection hinted by the defense refers to a different
information.chanroblesvirtualawlibrary chanrobles virtual law library

It is true that both the complaints as well as the information, in their caption,
merely designate the crime charged as that of "Acts of Lasciviousness", but such
designation is not controlling. It is a mere conclusion of law. The factor that
characterizes the charge is the actual recital of the facts. That, it was held that,
"The crime of which the defendant stands accused is that described by the facts
stated in the information, and not that designated by the fiscal in the preamble
thereof ... The designation of the crime by name in the caption of the information is
a conclusion of law on the part of the fiscal,... It is not necessary, for the protection

100
of the substantial rights of the accused, nor the effective preparation of his defense,
that he be informed of the technical name of the crime of which he stands
charged. He must look to the facts alleged." (Emphasis supplied) (U. S. vs.Lim San,
17 Phil., 275) It is evident that the lower court did not err in finding the accused
guilty of the crime of trespass to dwelling.chanroblesvirtualawlibrary chanrobles
virtual law library

(b) The plea of double jeopardy cannot also be sustained it appearing that the case
was not dismissed but merely remanded to the Justice of the Peace in order that he
may conduct a new preliminary investigation. This is clearly apparent from the
decision of the lower court. Thus, in said decision the following appears: "Inasmuch
as the accused insists on his right to a preliminary investigation, the Court, on
motion of Assistant Provincial Fiscal Aureliano C. Trabajo, order that the records of
this case be returned to the Justice of the Peace Court of Tubigon, Bohol, with
instructions that he should hold a preliminary investigation on the complaint filed
and subscribed by Valeria Pagas dated July 1, 1950, which is the only valid
complaint in this case." (Emphasis supplied) The rule regarding double jeopardy
invoked by the accused only applies when the case against him is dismissed or is
otherwise terminated without his express consent (Section 9, Rule 113). This
situation does not here obtain, for the case was neither dismissed nor terminated.
It was merely remanded to the Justice of the Peace for a new preliminary
investigation. And even if the action of the court may be considered as dismissal, it
appears that it was done with his express consent, or at least with the conformity of
his counsel. (pages 1-2, t. s. n.) This case, therefore, does not come within the
rule.chanroblesvirtualawlibrary chanrobles virtual law library

The decision appealed from is affirmed, without pronouncement as to

costs.chanroblesvirtualawlibrary chanrobles virtual law library

Pablo, Bengzon, Padilla, Montemayor, Reyes, A., Jugo, Labrador, Concepcion and
Reyes, J.B.L., JJ., concur.

101
 EN BANC

[G.R. No. 93335. September 13, 1990.]

JUAN PONCE ENRILE, Petitioner, v. HON. OMAR U. AMIN, presiding Judge of Regional Trial Court
of Makati, Branch 135, HON. IGNACIO M. CAPULONG, Presiding Judge of Regional Trial Court of
Makati, Branch 134, Pairing Judge, SPECIAL COMPOSITE TEAM of: Senior State Prosecutor
AURELIO TRAMPE, State Prosecutor FERDINAND ABESAMIS and Asst. City Prosecutor EULOGIO
MANANQUIL; and PEOPLE OF THE PHILIPPINES, Respondents.

Ponce Enrile, Cayetano, Reyes & Manalastas Law Offices for petitioner.

DECISION

GUTIERREZ, JR., J.:

Together with filing of an information charging Senator Juan Ponce Enrile as having committed rebellion
complexed with murder 1 with the Regional Trial Court of Quezon city, government prosecutors filed another
information charging him for violation of Presidential Decree No. 1829 with the Regional Trial Court of
Makati. The second information reads: jgc:chan rob les.com. ph

"That on or about the 1st day of December 1989, at Dasmarinas Village, Makati, Metro Manila and within the
jurisdiction of this Honorable Court, the above-named accused, having reasonable ground to believe or
suspect that Ex-Col. Gregorio "Gringo" Honasan has committed a crime, did then and there unlawfully,
feloniously, willfully and knowingly obstruct, impede, frustrate or delay the apprehension of said Ex.-Lt. Col.
Gregorio "Gringo" Honasan by harboring or concealing him in his house." cralaw virtua1aw li bra ry

On March 2, 1990, the petitioner filed an Omnibus Motion (a) to hold in abeyance the issuance of a warrant
of arrest pending personal determination by the court of probable cause, and (b) to dismiss the case and
expunge the information from the record.

On March 16, 1990, respondent Judge Ignacio Capulong, as pairing judge of respondent Judge Omar Amin,
denied Senator Enrile’s Omnibus motion on the basis of a finding that "there (was) probable cause to hold
the accused Juan Ponce Enrile liable for violation of PD No. 1829." cralaw virtua 1aw lib rary

On March 21, 1990, the petitioner filed a Motion for Reconsideration and to Quash/Dismiss the Information
on the grounds that: chanrob1es vi rtua l 1aw li bra ry

(a) The facts charged do not constitute an offense;

(b) The respondent court’s finding of probable cause was devoid of factual and legal basis; and

(c) The pending charge of rebellion complexed with murder and frustrated murder against Senator Enrile as
alleged co-conspirator of Col. Honasan, on the basis of their alleged meeting on December 1, 1989 preclude
the prosecution of the Senator for harboring or concealing the Colonel on the same occasion under PD
1829.chanro bles law l ib rary

On May 10, 1990, the respondent court issued an order denying the motion for reconsideration for alleged
lack of merit and setting Senator Enrile’s arraignment to May 30, 1990.

The petitioner comes to this Court on Certiorari imputing grave abuse of discretion amounting to lack or
excess of jurisdiction committed by the respondent court in refusing to quash/dismiss the information on the
following grounds, to wit: c han rob1es v irt ual 1aw l i brary

I. The facts charged do not constitute an offense;

II. The alleged harboring or concealing by Sen. Enrile of Col. Honasan in a supposed meeting on 1 December
1989 is absorbed in, or is a component element of, the "complexed" rebellion presently charge against Sen.

102
Enrile as alleged co-conspirator of Col. Honasan on the basis of the same meeting on 1 December 1989;

III. The orderly administration of Justice requires that there be only one prosecution for all the component
acts of rebellion;

IV. There is no probable cause to hold Sen. Enrile for trial for alleged violation of Presidential Decree No.
1829;

V. No preliminary investigation was conducted for alleged violation of Presidential Decree No. 1829. The
preliminary investigation, held only for rebellion, was marred by patent irregularities resulting in denial of
due process.

On May 20, 1990 we issued a temporary restraining order enjoining the respondents from conducting
further proceeding in Criminal Case No. 90-777 until otherwise directed by this Court.

The pivotal issue in this case is whether or not the petitioner could be separately charged for violation of PD
No. 1829 not withstanding the rebellion case earlier filed against him.

Respondent Judge Amin sustained the charge of violation of PD No. 1829 notwithstanding the rebellion case
filed against the petitioner on the theory that the former involves a special law while the latter is based on
the Revised Penal Code or general law.

The resolution of the above issue brings us anew to the case of People v. Hernandez (99 Phil. 515 [1956])
the rulings of which were recently repeated in the petition for habeas corpus of Juan Ponce Enrile v. Judge
Salazar, (G.R. Nos. 92163 and 92164 June 5, 1990). The Enrile case gave this Court the occasion to
reiterate the long standing proscription against splitting the component offenses of rebellion and subjecting
them to separate prosecutions, a procedure reprobated in the Hernandez case. This Court recently
declared: jgc:c han robles. com.ph

"The rejection of both options shapes and determines the primary ruling of the Court, which is that
Hernandez remains binding doctrine operating to prohibit the complexing of rebellion with any other offense
committed on the occasion thereof, either as a means necessary to its commission or as an unintended
effect of an activity that constitutes rebellion." (Emphasis supplied).

This doctrine is applicable in the case at bar. If a person can not be charged with the complete crime of
rebellion for the greater penalty to be applied, neither can he be charged separately for two (2) different
offenses where one is a constitutive or component element or committed in furtherance of rebellion.

The petitioner is presently charged with having violated PD No. 1829 particularly Section 1 (c) which
states:jgc:chanrob les.co m.ph

"SECTION 1. The penalty of prison correccional in its maximum period, or a fine ranging from 1,000 to
6,000 pesos, or both, shall be imposed upon any person who knowingly or wilfully obstructs, impedes,
frustrates or delays the apprehension of suspects and the investigation and prosecution of criminal cases by
committing any of the following acts: chanrob 1es vi rtua l 1aw lib rary

x x x

(c) harboring or concealing, or facilitating the escape of, any person he knows, or has reasonable ground to
believe or suspect, has committed any offense under existing penal laws in order to prevent his arrest,
prosecution and conviction." cralaw virtua 1aw lib rary

x x x

The prosecution in this Makati case alleges that the petitioner entertained and accommodated Col. Honasan
by giving him food and comfort on December 1, 1989 in his house. Knowing that Colonel Honasan is a
fugitive from justice, Sen. Enrile allegedly did not do anything to have Honasan arrested or apprehended.
And because of such failure the petitioner prevented Col. Honasan’s arrest and conviction in violation of
Section 1 (c) of PD No. 1829.

103
The rebellion charges filed against the petitioner in Quezon City were based on the affidavits executed by
three (3) employees of the Silahis International Hotel who stated that the fugitive Col. Gregorio "Gringo"
Honasan and some 100 rebel soldiers attended the mass and birthday party held at the residence of the
petitioner in the evening of December 1, 1989. The information (Annex "C", p. 3) particularly reads that on
"or about 6:30 p.m., 1 December, 1989, Col. Gregorio "Gringo" Honasan conferred with accused Senator
Juan Ponce Enrile accompanied by about 100 fully armed rebel soldiers wearing white armed patches." The
prosecution thereby concluded that: jgc:chanrob les.c om.ph

"In such a situation, Sen. Enrile’s talking with rebel leader Col. Gregorio "Gringo" Honasan in his house in
the presence of about 100 uniformed soldiers who were fully armed, can be inferred that they were co-
conspirators in the failed December coup." (Annex A, Rollo, p. 65; Emphasis supplied).

As can be readily seen, the factual allegations supporting the rebellion charge constitute or include the very
incident which gave rise to the charge of the violation under Presidential Decree No. 1829. Under the
Department of Justice resolution (Annex A, Rollo, p. 49) there is only one crime of rebellion complexed with
murder and multiple frustrated murder but there could be 101 separate and independent prosecutions for
"harboring and concealing ‘ Honasan and 100 other armed rebels under PD No. 1829. The splitting of
component elements is readily apparent.

The petitioner is now facing charges of rebellion in conspiracy with the fugitive Col. Gringo Honasan.
Necessarily, being in conspiracy with Honasan, petitioner’s alleged act of harboring or concealing was for no
other purpose but in furtherance of the crime of rebellion thus constituting a component thereof. It was
motivated by the single intent or resolution to commit the crime of rebellion. As held in People v.
Hernandez, supra: jgc:chan robles. com.ph

"In short, political crimes are those directly aimed against the political order, as well as such common crimes
as may be committed to achieve a political purpose. The decisive factor is the intent or motive." (p. 535).

The crime of rebellion consists of many acts. It is described as a vast movement of men and a complex net
of intrigues and plots (People v. Almasan [CA] O.G. 1932) Jurisprudence tells us that acts committed in
furtherance of the rebellion though crimes in themselves are deemed absorbed in the one single crime of
rebellion (People v. Geronimo, 100 Phil 90 [1956]; People v. Santos, 104 Phil. 551 [1958]; People v.
Rodriguez, 107 Phil. 659 [1960]; People v. Lava, 28 SCRA 72 [1969]. In this case, the act of harboring or
concealing Col. Honasan is clearly a mere component or ingredient of rebellion or an act done in furtherance
of the rebellion. It cannot therefore be made the basis of a separate charge. The case of People v. Prieto 2
(80 Phil., 138 [1948]) is instructive: jgc:cha nrob les.c om.ph

"In the nature of things, the giving of aid and comfort can only be accomplished by some kind of action. Its
very nature partakes of a deed or physical activity as opposed to a mental operation. (Cramer v. U.S., ante)
This deed or physical activity may be, and often is, in itself a criminal offense under another penal statute or
provision. Even so, when the deed is charged as an element of treason it becomes identified with the latter
crime and can not be the subject of a separate punishment, or used in combination with treason to increase
the penalty as article 48 of the Revised Penal Code provides. Just as one can not be punished for possessing
opium in a prosecution for smoking the identical drug, and a robber cannot be held guilty of coercion or
trespass to a dwelling in a prosecution for robbery, because possession of opium and force and trespass are
inherent in smoking and in robbery respectively, so may not a defendant be made liable for murder as a
separate crime or in conjunction with another offense where, as in this case, it is averred as a constitutive
ingredient of treason." cralaw virtua 1aw lib rary

The prosecution tries to distinguish by contending that harboring or concealing a fugitive is punishable under
a special law while the rebellion case is based on the Revised Penal Code; hence, prosecution under one law
will not bar a prosecution under the other. This argument is specious in rebellion cases.

In the light of the Hernandez doctrine the prosecution’s theory must fail. The rationale remains the same. All
crimes, whether punishable under a special law or general law, which are mere components or ingredients,
or committed in furtherance thereof, become absorbed in the crime of rebellion and cannot be isolated and
charged as separate crimes in themselves. Thus: jgc:chanro bles.c om.ph

"This does not detract, however, from the rule that the ingredients of a crime form part and parcel thereof,
and hence, are absorbed by the same and cannot be punished either separately therefrom or by the
application of Article 48 of the Revised Penal Code. . . . (People v. Hernandez, supra, at p. 528).

104
The Hernandez and other related cases mention common crimes as absorbed in the crime of rebellion. These
common crimes refer to all acts of violence such as murder, arson, robbery, kidnapping etc. as provided in
the Revised Penal Code. The attendant circumstances in the instant case, however, constrain us to rule that
the theory of absorption in rebellion cases must not confine itself to common crimes but also to offenses
under special laws which are perpetrated in furtherance of the political offense.

The conversation and, therefore, alleged conspiring of Senator Ponce Enrile with Colonel Honasan is too
intimately tied up with his allegedly harboring and concealing Honasan for practically the same act to form
two separate crimes of rebellion and violation of PD No. 1829.

Clearly, the petitioner’s alleged act of harboring or concealing which was based on his acts of conspiring with
Honasan was committed in connection with or in furtherance of rebellion and must now be deemed as
absorbed by, merged in, and identified with the crime of rebellion punished in Articles 134 and 135 of the
RPC.

"Thus, national, as well as international, laws and jurisprudence overwhelmingly favor the proposition that
common crimes, perpetrated in furtherance of a political offense, are divested of their character as
"common" offenses, and assume the political complexion of the main crime of which they are mere
ingredients, and consequently, cannot be punished separately from the principal offense, or complexed with
the same, to justify the imposition of a graver penalty." (People v. Hernandez, supra, p. 541).

In People v. Elias Rodriguez, 107 Phil. 659 [1960], the accused, after having pleaded guilty and convicted of
the crime of rebellion, faced an independent prosecution for illegal possession of firearms. The Court
ruled:jgc: chan robles .com.p h

"An examination of the record, however, discloses that the crime with which the accused is charged in the
present case which is that of illegal possession of firearm and ammunition is already absorbed as a
necessary element or ingredient in the crime of rebellion with which the same accused is charged with other
persons in a separate case and wherein he pleaded guilty and was convicted." (at page 662).

x x x

". . . [T]he conclusion is inescapable that the crime with which the accused is charged in the present case is
already absorbed in the rebellion case and so to press it further now would be to place him in double
jeopardy." (at page 663).

Noteworthy is the recent case of Misolas v. Panga, (G.R. No. 83341, January 30, 1990) where the Court had
the occasion to pass upon a nearly similar issue. In this case, the petitioner Misolas, an alleged member of
the New Peoples Army (NPA), was charged with illegal possession of firearms and ammunitions in
furtherance of subversion under Section 1 of PD 1866. In his motion to quash the information, the petitioner
based his arguments on the Hernandez and Geronimo rulings on the doctrine of absorption of common
crimes in rebellion. The Court, however, clarified, to wit: jgc:chan roble s.com.p h

". . . in the present case, petitioner is being charged specifically for the qualified offense of illegal possession
of firearms and ammunition under PD 1866. HE IS NOT BEING CHARGED WITH THE COMPLEX CRIME OF
SUBVERSION WITH ILLEGAL POSSESSION OF FIREARMS. NEITHER IS HE BEING SEPARATELY CHARGED
FOR SUBVERSION AND FOR ILLEGAL POSSESSION OF FIREARMS. Thus, the rulings of the Court in
Hernandez, Geronimo and Rodriguez find no application in this case." cralaw virtua 1aw lib rary

The Court in the above case upheld the prosecution for illegal possession of firearms under PD 1866 because
no separate prosecution for subversion or rebellion had been filed. 3 The prosecution must make up its mind
whether to charge Senator Ponce Enrile with rebellion alone or to drop the rebellion case and charge him
with murder and multiple frustrated murder and also violation of P.D. 1829. It cannot complex the rebellion
with murder and multiple frustrated murder. Neither can it prosecute him for rebellion in Quezon City and
violation of P.D 1829 in Makati. It should be noted that there is in fact a separate prosecution for rebellion
already filed with the Regional Trial Court of Quezon City. In such a case, the independent prosecution under
PD 1829 can not prosper. chanrob les lawl ibra ry : re dnad

As we have earlier mentioned, the intent or motive is a decisive factor. If Senator Ponce Enrile is not
charged with rebellion and he harbored or concealed Colonel Honasan simply because the latter is a friend
and former associate, the motive for the act is completely different. But if the act is committed with political

105
or social motives, that is in furtherance of rebellion, then it should be deemed to form part of the crime of
rebellion instead of being punished separately.

In view of the foregoing, the petitioner can not be tried separately under PD 1829 in addition to his being
prosecuted in the rebellion case. With this ruling, there is no need for the Court to pass upon the other
issues raised by the petitioner.

WHEREFORE, the petition is GRANTED. The Information in Criminal Case No. 90-777 is QUASHED. The writ
of preliminary injunction, enjoining respondent Judges and their successors in Criminal Case No. 90-777,
Regional Trial Court of Makati, from holding the arraignment of Sen. Juan Ponce Enrile and from conducting
further proceedings therein is made permanent.

SO ORDERED.

Narvasa, Melencio-Herrera, Cruz, Feliciano, Gancayco, Padilla, Bidin, Sarmiento, Cortes, Griño-Aquino and
Regalado, JJ., concur.

Medialdea, J., took no part.

Fernan, C.J. and Paras, J., on leave.

Endnotes:

1. Recently made the subject of a similar petition for certiorari and modified by the Supreme Court into an
information for a simple crime of rebellion in G.R. Nos. 92163 & 92164, June 5, 1990.

2. The doctrine relied upon was set down in treason cases but is applicable to rebellion cases. As Justice
McDonough opined, rebellion is treason of less magnitude (U.S. v. Lagnoasan, 3 Phil. 472, 484, 1904).

3. Justices Isagani A. Cruz and Abraham F. Sarmiento believe that PD 1866 is unconstitutional and should
be struck down as illegal per se. Justice Sarmiento stated in his separate dissent that PD 1866 is a bill of
attainder, vague and violative of the double jeopardy clause, and an instrument of repression.

106
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-23048 July 31, 1964

IN THE MATTER OF THE APPLICATION FOR A WRIT OF HABEAS CORPUS WITH

APPLICATION FOR TEMPORARY RESTRAINING ORDER OR EX PARTE PRELIMINARY
INJUNCTION. JESUS LAVA, petitioner,
vs.
LT. COL. OSCAR C. GONZALES, Chief Intelligence Officer of the Philippine
Constabulary, respondent.

RESOLUTIONS

PAREDES, J.:

The petition is DISMISSED, and the restraining Order or Preliminary Injunction prayed for should be,
as it is hereby DENIED. Without costs.

The Warrant of Arrest issued by the Manila Court of First Instance in Criminal Case No. 19166 is
valid and Effective. The offense described in said Warrant of Arrest was "Rebellion Complex", but
the information was amended and the petitioner can still be held guilty for simple rebellion (People v.
Geronimo, G.R. No. L-8936, Oct. 23, 1956; People v. Romagosa, G.R. No. L-8476, Feb. 28, 1958;
People v. Santos, G.R. No. L-11813, Sept. 17, 1958). A new preliminary investigation is not
necessary after the amendment of the information for the reason that there has been no change in
the nature of the crime charged, which is rebellion, and moreover, the accused petitioner who was
already custody when the amended was filed, should have asked, but did not, for a re-investigation
of said case, within the period five (5) days from the time he learned of the amended information
(sec. 15, Rule 112, Rev. Rules). Granting arguendo, that the warrant of arrest in question is
defective, still petitioner's arrest is legal because an offender can be taken into custody, by any
officer of the law, or by any private, individual, even without any warrant of arrest, when an offense
has in fact been committed and the arresting officer or individual, has reasonable ground to believe
that the person to be arrested has committed it (Sec. 6-b, Rule 113, Rev. Rules), and forthwith
deliver the arrested person to the judicial authorities, as was done in this case (Sec. 17, ibid).
Normally, a writ of preliminary injunction should not issue to restrain the prosecution of criminal
offenses Kwong Sing v. City of Manila, 41 Phil. 103; Gorospe v. Peñaflorida, L-11583, July 19,
1957). In view hereof, it is deemed unnecessary to pass upon the issues raised, in connection with
the warrants of arrest in Criminal Cases Nos. 2043 and 2044 of the Bulacan Court of First Instance.

Wherefore, the parties respectfully pray that the foregoing stipulation of facts be admitted and
approved by this Honorable Court, without prejudice to the parties adducing other evidence to prove
their case not covered by this stipulation of facts.
1äwphï1.ñët

Bengzon, C.J., Padilla, Bautista Angelo, Regala and Makalintal, JJ., concur.
Concepcion and Reyes, J.B.L., JJ., concur in the result.

107
 FIRST DIVISION
[G.R. No. L-7987. March 26, 1956.]
THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellant, vs. PLACIDO OPEMIA, ET AL., Defendants-
Appellees.

DECISION
REYES, A., J.:
This is an appeal by the prosecution from an order of dismissal.
It appears that on February 26, 1953, an information was filed in the Court of First Instance of Camarines
Sur, charging four persons with theft of large cattle alleged to have been committed on or about June 18,
1952. After the Defendants had pleaded not guilty and in the course of the trial, the caretaker of the stolen
carabao, testifying as fourth witness for the prosecution, declared that the theft occurred sometime in
July, 1947, whereupon the fiscal asked for permission to amend the information to make it conform to
the evidence as regards the date of the commission of the crime. Instant objection to the proposed
amendment was raised on behalf of the Defendants on the ground that it would violate their substantial
rights for the reason that the case had already been pending for a long time and the trial had progressed
to such an extent that their defense had already been revealed to the prosecution. Believing that the
amendment would really prejudice the substantial rights of the accused the trial court sustained the
objection. And the defense having also asked that the information be quashed on the ground of variance
between its allegations and the evidence, the court verbally ruled that it was dismissing the said
information and implemented the ruling by declaring the case dismissed in the judgment rendered at the
conclusion of the trial.
Appealing from the order of dismissal, the Solicitor General contends that instead of dismissing the case
the lower court should have allowed the information to be amended.
Section 13 of Rule 106 provides: chanroblesvirtuallawlibrary

“SEC. 13. Amendment. — The information of complaint may be amended, in substance or form, without
leave of court, at any time before the Defendant pleads; and thereafter and during the trial as to all
chan roblesvirtualawlibrary

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 Defendant.
“If it appears at any time before judgment that a mistake has been made in charging the proper offense,
the court may dismiss the original complaint or information and order the filing of a new one charging the
proper offense, provided the Defendant would not be placed thereby in double jeopardy, and may also
require the witnesses to give bail for their appearance at the trial.”
The amendment proposed in the present case consists in changing the date of the commission of the
crime charged from June 18, 1952 to July, 1947. In not permitting the amendment the learned trial Judge
said:
chanrobl esvirtuallawlibrary

“It is a cardinal rule in criminal procedure that the precise time at which an offense was committed need
not be alleged in the complaint or information, but it is required that the act be alleged to have been
committed at any time as near to the actual date at which the offense was committed as the information
or complaint would permit (Rule 106, section 10). The reason for this rule is obvious. It is to apprise the
accused of the approximate date when the offense charged was committed in order to enable him to
prepare his defense and thus avoid a surprise. In the case at bar, the proof shows that the carabao was

108
lost on July 25, 1947 and not on June 18, 1952 as alleged in the information. The period of almost five
years between 1947 and 1952 covers such a long stretch of time that one cannot help but be led to believe
that another theft different from that committed by the Defendants in 1952 was also perpetrated by them
in 1947. Under this impression the accused, who came to court prepared to face a charge of theft of large
cattle allegedly committed by them in 1952, were certainly caught by sudden surprise upon being
confronted by evidence tending to prove a similar offense committed in 1947. The variance is certainly
unfair to them, for it violates their constitutional right to be informed before the trial of the specific charge
against them and deprives them of the opportunity to defend themselves. Moreover, they cannot be
convicted of an offense with which they are not charged.
“It is also a cardinal rule in criminal procedure that after the Defendant has entered his plea, the
information or complaint may be amended only as to all matters of form when the same can be done
without prejudice to the rights of the Defendant (Rule 196, section 13). An amendment that would change
the date of the commission of the offense from 1947 to 1952 is certainly not a matter of form. The
difference in date could not be attributed to a clerical error, because the possibility of such an error is
ruled out by the fact that the difference is not only in the year, but also in the month and in the last two
digits of the year. It is apparent that the proposed amendment concerns with material facts constituting
the offense, and consequently it would be prejudicial to the substantial rights of the Defendants.”
His Honor has we think adduced good reasons for considering the amendment as referring to substance
and not merely to form. But even supposing it to be the contrary, its allowance, after the Defendants had
pleaded, was discretionary with the court and would be proper only if it would not prejudice their rights.
We are not prepare to say that the court did not make good use of that discretion in disallowing the
amendment, considering that the variance sought to be introduced thereby would appear to be really
unfair to the Defendants, for as clearly explained by the court “it violates their constitutional right to be
informed before the trial of the specific charge against them and deprives them of the opportunity to
defend themselves.”
In any event, it appears from the judgment below that, with the proposed amendment disallowed and
seeing that the prosecution could not contradict the testimony that created the necessity for the
amendment, the trial court dismissed the case on the ground of variance between allegation and proof,
so that the dismissal really amounted to an acquittal. In line, therefore, with our ruling in Gandicela vs.
Lutero, 88 Phil., 299; People vs. Diaz, 94 Phil., 714; People vs. Bangalao, et al., 94 Phil., 354; and
chan roble svirtualawlibrary chan r oblesvirtualawlibrary chan roblesvirtualawlibrary

Catilo vs. Abaya, 94 Phil., 1014 the Defendants in the present case should be deemed to have already been
acquitted and may not be tried again without being put twice in jeopardy of punishment for the same
offense.
Wherefore, the appeal is dismissed, without special pronouncement as to costs.
Paras, C.J., Padilla, Bautista Angelo, Labrador, Concepcion and Reyes, J. B. L., JJ., concur.

109
 Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. L-45772 March 25, 1988

PEOPLE OF THE PHILIPPINES, petitioner,

vs.
Hon. EDUARDO MONTENEGRO, Presiding Judge, Branch IV-B, CFI Rizal, Quezon City;
ANTONIO CIMARRA, ULPIANO VILLAR, BAYANI CATINDIG, and AVELINO DE
LEON, respondents.

PADILLA, J.:

This is a petition for certiorari with preliminary injunction and/or restraining order, to set aside the order of the respondent court, dated 10
February 1977, denying petitioner's Motion to Admit Amended Information and the order, dated 22 February 1977, of the same court,
denying the Motion for Reconsideration of said earlier order.

On 21 March 1977, the court issued a temporary restraining order enjoining respondent court from
proceeding to hear and decide the case until further orders from the Court.

The facts of the case are as follows:

On 20 September 1976, the City Fiscal of Quezon City, thru Assistant Fiscal Virginia G, Valdez, filed
an Information for "Roberry" before the Court of First Instance of Rizal, Branch IV-B, Quezon City,
docketed as Criminal Case No. Q-6821, against Antonio Cimarra, Ulpiano Villar, Bayani Catindig
and Avelino de Leon. Said accused (now private respondents) were all members of the police force
of Quezon City and were charged as accessories-after-the-fact in the robbery committed by the
minor Ricardo Cabaloza, who had already pleaded guilty and had been convicted in Criminal Case
No. QF-76-051 before the Juvenile and Domestic Relations Court of Quezon City. Ricardo Cabaloza
was convicted for the robbery of the same items, articles and jewelries belonging to Ding Velayo,
Inc. valued at P 75,591.40 and enumerated in the original information 1 against herein private
respondents as:

One (1) Arminius revolver, cal. 22 with six ammo SN-165928

One (1) gold men's ring 'signet'

Five (5) ID plates yellow gold

Four (4) ID plates yellow gold

Six (6) bracelets lock yellow gold

One (1) anniversary pendant yellow gold

Three (3) heart shape with assorted birthstones

110
 One (1) lady's (ring) white gold setting

One (1) white gold ring mounting 18 karats

One (1) white gold ring mounting 18 karats

One (1) yellow gold stud

One (1) lady's white gold ring setting

One (1) white gold ring mounting

One (1) pc. white gold earring mounting

Twelve (12) pcs. of semi-precious stone bands with one broken

Two (2) Ivory bracelets

One (1) Silver bracelets

One (1) yellow ring gold with blue stone

Two (2) wedding gold rings yellow

One (1) Minolta pocket size camera

One (1) pink handbag

One (1) bunch keys

Upon arraignment on 25 October 1976, all of the accused (now private respondents) entered a plea
of "not guilty" to the charge filed against them. Accordingly, trial on the merits was scheduled by the
respondent court. However, before the trial could proceed, the prosecuting fiscal filed a Motion to
Admit Amended Information, dated 28 December 1976, seeking to amend the original information
by: (1) changing the offense charged from "Robbery" to "Robbery in an Uninhabited Place," (2)
alleging conspiracy among all the accused, and (3) deleting all items, articles and jewelries alleged
to have been stolen in the original Information and substituting them with a different set of items
valued at P71,336.80 2 to wit:

Four (4) pcs. of I.D.

Plates

14 Karat P 24.00
yellow gold each

Thirteen (13)
pcs. of I.D.

Plates KYG P 26.40

each

111
Five (5) pcs. of
anniversary

Pendant 14 P 17.00
KYG each

Three (3) pcs. of

pendant w/

birthstones P 16.00
14 KYG each

Two (2) pcs. of

Signet plain

14 Karat P 204.00
yello gold each
rings

Four (4) pcs. of

lady's bracelet,

14 KYG oval P 30.00

shape each

Four (4) pcs. of P 140.00

necklace 14 each
KYG

One (1) set of

ring & earrings

mounting w/
23 brills 14
KYG

Two (2) pcs. of

ladies I.D.

bracelet 14 P 120.00
KYG each

Nine (9) pcs. of

diamond design

earrings 14 P 32.00
KYG each

Five (5) pcs. of

Sput-nik cross

4 KYG P 99.00
each

112
One (1) pc. of
ladies ring

mounting 14 P 290.00
KYG

One (1) pc. of

lady's sole
diamond ring,

about .40ct
w/ yellow
gold

ring
mounting,
and one pair

of earrings
white gold
solo

diamond
about .25ct
w/ black

onyx P
2,000.00

One (1) pc. P 1,500.00

lady's bracelet
14 KYG

One (1) pc.

chain 24KYG
necklace

w/ small P
diamond 1,500.00

One (1) pc. P 1,000.00

Lapiz Lazuli ring
14 KYG

One (1) pc. P 1,000.00

Lapiz Lazuli 18
KYG

One (1) pc.

Lady's ring w/ 2
Jade stone,

white gold w/
small

113
 diamonds
and one pc.

lady's ring
white gold,

14 K w/ 2
small
diamonds

w/ one Jade P
2,000.00

Six (6) pcs. of P 40.00

fancy chains and each
bracelets

One (1) pair of

yellow gold
earrings w/

pearl for P 70.00

children

One (1) pc.

yellow gold ring
w/ blue

sapphire for P 150.00

children

One (1) brown

envelope,
containing 2

pairs of 1/g
loop
earrings,

14 karat P 780.00

Cash money P 555.00

(inside the said
envelope)

One (1) pc. silver P 50.00

bracelet

One (1) pc. P 30.00

bronze bracelet

One (1) pc. ring P 250.00

blue stone YG

114
One (1) pc. P 100.00
Lapiz Lazuli
band

One (1) pc. P 30.00

Coral band

One (1) pc. ring

w/ diamond
stone,

14 KWG P 250.00
mounting

Two (2) pcs. of P 200.00

14 YG part
bracelet

Three (3) pcs. of P

men's ring 14 1,500.00
KYG

One (1) pc. P

pendant 14 KYG 2,000.00

One (1) pc.

loose diamond
about

4.50 karats P
antigo 27,000.00

One (1) pc.

loose diamond
about

2.05 carats P
each antigo 20,000.00
cut

One (1) pc.

Cannon camera
w/

black case P
1,200.00

One (1) pc.

Yashika camera
w/

lens cover P
1,300.00

115
 One (1) pc.
Cannon camera
w/

black case P
1,100.00

Private respondents opposed the admission of the Amended Information. The respondent court
resolved to deny the proposed amendments contained in the Amended Information in the previously
referred to order dated 10 February 1977. Petitioner moved for reconsideration of the aforesaid
order but the respondent court, on 22 February 1977, denied said motion; hence, this petition.

Amendment of an information under Sec. 14, Rule 110 of the 1985 Rules on Criminal Procedure
(formerly, Section 13, Rule 110 of the old Rules on Criminal Procedure) may be made at any time
before the accused enters a plea to the charge. Thereafter and during the trial, amendments to the
information may also be allowed, as to matters of form, provided that no prejudice is caused to the
rights of the accused. 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. 3

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. 4

The proposed amendments in the amended information, in the instant case, are clearly substantial
and have the effect of changing the crime charged from "Robbery" punishable under Article 209 to
"Robbery in an Uninhabited Place" punishable under Art. 302 of the Revised Penal Code, thereby
exposing the private respondents-accused to a higher penalty as compared to the penalty imposable
for the offense charged in the original information to which the accused had already entered a plea
of "not guilty" during their arraignment.

Moreover, the change in the items, articles and jewelries allegedly stolen into entirely different
articles from those originally complained of, affects the essense of the imputed crime, and would
deprive the accused of the opportunity to meet all the allegations in the amended information, in the
preparation of their defenses to the charge filed against them. It will be observed that private
respondents were accused as accessories-after-the-fact of the minor Ricardo Cabaloza who had
already been convicted of robbery of the items listed in the original information. To charge them now
as accessories-after-the-fact for a crime different from that committed by the principal, would be
manifestly incongruous as to be allowed by the Court.

The allegation of conspiracy among all the private respondents-accused, which was not previously
included in the original information, is likewise a substantial amendment saddling the respondents
with the need of a new defense in order to meet a different situation in the trial court. In People v.
Zulueta, 5 it was held that:

Surely the preparations made by herein accused to face the original charges will
have to be radically modified to meet the new situation. For undoubtedly the
allegation of conspiracy enables the prosecution to attribute and ascribe to the
accused Zulueta all the acts, knowledge, admissions and even omissions of his co-
conspirator Angel Llanes in furtherance of the conspiracy. The amendment thereby

116
 widens the battlefront to allow the use by the prosecution of newly discovered
weapons, to the evident discomfiture of the opposite camp. Thus it would seem
inequitable to sanction the tactical movement at this stage of the controversy,
bearing in mind that the accused is only guaranteed two-days' preparation for trial.
Needless to emphasize, as in criminal cases, the liberty, even the life, of the accused
is at stake, it is always wise and proper that he be fully apprised of the charges, to
avoid any possible surprise that may lead to injustice. The prosecution has too many
facilities to covet the added advantage of meeting unprepared adversaries.

To allow at this stage the proposed amendment alleging conspiracy among all the accused, will
make all of the latter liable not only for their own individual transgressions or acts but also for the
acts of their co-conspirators.

WHEREFORE, the petition is DISMISSED. The orders of the respondent court, dated 10 February
1977 and 22 February 1977 are AFFIRMED. The temporary restraining order issued on 21 March
1977 is LIFTED.

This decision is immediately executory.

SO ORDERED.

Yap (Chairman), Melencio-Herrera, Paras and Sarmiento, JJ., concur.

117
 Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. L-28701 March 25, 1983

PEDRITO L. CATINGUB, petitioner,

vs.
THE COURT OF APPEALS, THE HON. RICARDO C. PUNO and THE PHILIPPINE CHARITY
SWEEPSTAKES OFFICE, respondents.

GUERRERO, J:

This is an appeal by certiorari from the decision of the Court of Appeals in CA-G.R. No. 38698-R
entitled "PEDRITO L. CATINGUB, Petitioner, versus HON. RICARDO C. PUNO, Judge of the CFI
Manila, Branch 24, and the PHILIPPINE CHARITY SWEEPSTAKES OFFICE, Respondents."

Herein petitioner, Pedrito L. Catingub, was charged with the crime of malversation in Criminal Case
No. 75696 of the Court of First Instance of Manila, Branch XXIV, under the following Information:

That on or about and during the period covered from January 20 to February 24,
1963, in the City of Manila, Philippines, the said accused, being then a Sales
Supervisor of the Philippine Charity Sweepstakes Office, Cagayan de Oro Branch,
an instrumentality of the Government of the Republic of the Philippines, duly
qualified, appointed and acting as such, and as such is responsible and/or
accountable for public funds received by him by reason of his said office and position
for the proper discharge of his duties and functions, did then and there willfully,
unlawfully, feloniously and fraudulently, with grave abuse of confidence,
misappropriate, embezzle, and take away from the said funds the total amount of
P12,314.50 which he thereupon appropriated and converted to his own personal use
and benefit, to the damage and prejudice of public interests and the Government of
the Republic of the Philippines in the aforesaid amount of P12,314.50, Philippine
currency.

Contrary to law. 1

Assisted by counsel de oficio Atty. Ramon Academia during arraignment, petitioner pleaded not
guilty to the crime charged. 2 Trial commenced on August 30, 1965 during which petitioner appears
to have submitted to the court a paper purporting to be a Motion to Quash. 3 This motion, however,
was withdrawn by petitioner, through counsel, on the ground that the facts to support lack of
jurisdiction "are not yet apparent or they do not yet appear on record ..." 4At the continuation of trial
on October 4, 1965, petitioner again filed a Motion to Quash on the ground that the trial court "is
without jurisdiction to try the present case," the correct situs of the crime being Cagayan de Oro
City. 5 The court held in abeyance the resolution of said Motion "until after the prosecution shall have
rested its case." 6 In the meantime, trial proceeded and on February 21, 1966, the prosecution closed
its evidence.

118
The prosecution evidence established that petitioner was appointed in Manila on April 13, 1960 as
Salesman I, Philippine Charity Sweepstakes Office, with compensation at the rate of Pl,800.00 per
annum, effective upon assumption of office (Exhibit "A") which he assumed on May 9, 1960 after
taking his oath of office in Manila on May 5, 1960. Thereafter, he was designated Temporary Sales
Supervisor of the Philippine Charity Sweepstakes Office (PCSO) assigned at the Cagayan de Oro
Branch. As such, he received sweepstakes tickets on consignment, with the express obligation to
turn over the proceeds of the sales of these tickets to the Philippine Charity Sweepstakes Office as
shown in Exhibits "D", "D-1", "D-2", and "D-3". On March 12, 1963, petitioner was informed by the
Auditing Examiner of the PCSO Cagayan de Oro Branch that he has been found short of
P12,307.45 (Exhibit "F-2"). Petitioner was ordered to explain the shortage in writing and to produce
the missing amount. He failed to do so. On April 23, 1963, in view of his failure to settle his ticket
accounts, and pursuant to Resolution No. 137 of the Board of Directors dated April 2, 1963, the
services of the petitioner were terminated effective as of March 1, 1963, without prejudice to
whatever court action the PCSO will take for the recovery of the amount involved. (Exhibit "B-1"). In
a letter dated May 20, 1963, petitioner proposed to the General Manager of the PCSO Manila, to
settle his shortages by making monthly payments in the amount of at least P200.00, which proposal
was, however, denied by the General Manager.

On April 25, 1966, petitioner filed a Motion to Dismiss on the sole ground that "the prosecution made
a wrong choice of jurisdiction." He contended that "on the basis of the prosecution's evidence, the
offense charged, together with all its essential ingredients occurred and the consummation thereof
(was) completed, in Cagayan de Oro." 7

The trial court on May 18, 1966, denied the aforesaid Motion to Dismiss in the following Order, to wit:

Acting upon the defendant's "Motion to Dismiss", dated April 22, 1966, the plaintiff's
opposition thereto, dated April 28, 1966, and the reply dated May 10, 1966, filed in
behalf of the accused, and considering the evidence on record, the Court believes
and so rules that for the proper determination of the issues involved in this case, the
accused should be heard in his defense.

Wherefore, the aforesaid motion to dismiss is hereby denied and the continuation of
the trial of this case is hereby set for July 6, 1966, at 8:30 o'clock in the morning.8

Reconsideration of the foregoing Order sought by petitioner was denied in another Order dated
November 3, 1966. 9Petitioner assailed these two Orders of the Court of First Instance in his petition
for certiorari, prohibition and mandamus before respondent Court of Appeals. The Court of Appeals
(now Intermediate Appellate Court) dismissed the petition in a decision promulgated December 19,
1967, the dispositive portion of which reads:

WHEREFORE, in the light of the foregoing considerations, we are of the considered

opinion that the accused's motion to dismiss upon improper venue is without merit
and accordingly the present petition for certiorari, prohibition and mandamus with
preliminary injunction should be, as it is hereby dismissed, without pronouncement
as to costs. 10

Petitioner now comes to this Court by way of appeal by certiorari, raising the following errors:

A. The Court of Appeals erred in holding that the Court of First Instance of Manila is
vested with jurisdiction to try an offense under an Information charging Manila as the
place of commission when the evidence adduced by the prosecution clearly
establishes another place of commission.

119
 B. The Court of Appeals erred in holding that the consignment invoices of the
Philippine Charity Sweepstakes Office, objected to as incompetent, control in every
instance the ultimate situs of prosecution in a crime involving malversation even
when the elements thereof have been shown to have taken place in another
territorial jurisdiction.

C. The Court of Appeals erred in not granting an equitable relief to petitioner by

having him tried in the place of actual commission of the offense to afford him all the
opportunity in an adversary proceeding to present his evidence and witnesses.

D. The Court of Appeals erred in not resolving at least the doubt where the crime
was committed in favor of the accused.

The main issue for resolution is whether or not the Court of First Instance of Manila has jurisdiction
to continue with the trial of the offense as charged in view of the evidence presented by the
prosecution.

The Information filed in the trial court specifically alleges that the crime imputed against petitioner,
was committed "in the City of Manila, Philippines." Such an averment would be sufficient if "the
offense was committed or some of the essential ingredients occurred at some place within the
jurisdiction" of the Court of First Instance of Manila pursuant to Section 9, Rule 110 of the Revised
Rules of Court. Sec. 14(a) also provides:

Sec. 14. Place where action is to be instituted. - (a) In all criminal prosecutions, the
action shall be instituted and tried in the court of the municipality or province wherein
the offense was committed or any one of the essential ingredients thereof took place.

xxx xxx xxx

Article 217 of the Revised Penal Code defines the crime of malversation of public funds or property
as follows:

Art. 217. Malversation of public funds or property.— Presumption of malversation.

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

1. The penalty of prision correccional in its medium and maximum periods, if the
amount involved in the misappropriation or malversation does not exceed two
hundred pesos.

xxx xxx xxx

The failure of a public officer to have duly forthcoming any public funds or property
with which he is chargeable, upon demand by any duly authorized officer, shall
be prima facie evidence that he has put such missing funds or property to personal
uses. (As amended by Rep. Act No. 1060.)

120
The above presumption of malversation "takes the place of affirmative proofs showing the actual
conversion (and) obviates the necessity of proving acts of conversion on the part of the accused, a
thing almost always extremely difficult to do (U.S. vs. Acebedo, 18 Phil. 428, 431).

Respondent Court of Appeals, in upholding the trial court's dismissal of herein petitioner's Motion to
Dismiss on ground of lack of jurisdiction, adverted to the written condition on the consignment
invoices covering the sweepstakes tickets delivered to and received by said accused, Exhibits "D",
"D-1", "D-2" and "D-3" that "I (petitioner) bind myself to comply strictly with existing rules and
regulations and to turn over to the Philippine Charity Sweepstakes Office the proceeds of these
tickets." As the following heading: "Republic of the Philippines, Philippine Charity Sweepstakes
Office, Manila," was printed on the consignment invoices, the appellate court concluded that the
PCSO mentioned or referred to therein was no other than the central or Manila office, and that
petitioner's obligation was to turn over the proceeds of the sale to the PCSO in Manila. Accordingly,
since petitioner had the obligation to turn over the proceeds of his ticket sales to the PCSO Manila
and he failed to do so, the appellate court held that the courts of Manila had the jurisdiction to try the
malversation charge against him.

We agree with the ruling of the Court of Appeals for We find on record the testimony of prosecution
witness Adriano M. Ruiz, Branch Manager of the Philippine Charity Sweepstakes Office at Cagayan
de Oro showing that "we require the fieldmen who receive the tickets to turn over the proceeds of
their sales either to the branch office or to the home office, and to return unsold booklets, if any, one
week before the draw direct to the central office" (t.s.n., p. 11, Vol. II).

It may be true that as testified to by the Auditing Examiner, Amando Dominguez, assigned by the
GAO to the Philippine Charity Sweepstakes Office that fieldmen "are bound to turn over the
proceeds of the tickets at the branch where they are assigned or in Manila" (t.s.n., p. 2, Vol. IV) and
that as declared by Lope V. Salvatoria, Assistant Department Manager of PCSO at Manila that
"when the proceeds are turned over to the branch cashier, the responsibility ends there and the
branch cashier in turn transmits the amount to the treasurer in Manila" (t.s.n., p. 25, Vol. V), the
option to deliver the proceeds to the local branch office appear to be tor convenience and for
security reasons. But the final accounting, the settlement of accounts and the final clearances would
have to be taken up in the central or Manila office. Petitioner himself recognizes this fact for as the
evidence disclosed, he proposed to settle his shortages by paying P 200.00 monthly in his letter
addressed to the General Manager of PCSO in Manila (Exhibit "K").

We also agree with the respondent Court of Appeals that the case of People vs. Angco, 103 Phil. 33,
is substantially on all fours with the case at bar. In the said Angco case, the Supreme Court laid
down this ruling:

The appellant presses the question of jurisdiction raised in a motion to quash which
was denied by the trial court. He insists that as the malversation was committed
while he was a travelling sales agent in Cagayan, as charged in the information, and
that as it is not charged that the fund or part thereof was malversed in Manila, the
Court of First Instance of Manila has no jurisdiction over the case. True it is alleged in
the information that he had his "headquarters at Tuguegarao, Cagayan" but it is also
alleged that he was a "Travelling Sales Agent of the Philippine Charity Sweepstakes
Office, in said City," (Manila) ... "charged with selling sweepstakes tickets entrusted
to him for sale in his district, with the obligation of turning over the proceeds of the
sale of said tickets to the Treasurer of the Philippine Charity Sweepstakes Office in
Manila," ... , and that he "wilfully, unlawfully, feloniously and fraudulently, with grave
abuse of confidence," misappropriated, embezzled. misapplied and converted the
amount of P3,960.95, the unaccounted and unpaid balance of the proceeds of the

121
 sale of the tickets to his own personal use and benefit, to the damage and prejudice
of the Philippine Charity Sweepstakes Office. These allegations are sufficient to
confer jurisdiction upon the Court of First Instance of Manila to the exclusion of the
concurrent jurisdiction of the Court of First Instance of Cagayan. The findings of the
trial court to the effect that the appellant "was bonded and was authorized to sell
sweepstakes tickets, with the obligation of turning over the proceeds of the sale to
the treasurer of the Philippine Charity Sweepstakes Office, Manila," and that the
appellant failed to account for and pay part of the proceeds of the sale of tickets
made by him, bear out the charge proferred against him in the information.

The crimes of estafa and malversation are similar in nature in that both involve misappropriation of
funds or property, the difference being that in estafa, the property or funds misappropriated is private
in character whereas in malversation, the property constitutes public funds or property for which the
accused as a public officer is accountable by reason of the duties of his office. In the case of U.S. vs.
Cardel, 23 Phil. 207, and U S. vs. Mesina,42 Phil. 66, it was held that estafa was consummated in
the place where the accused is required to render an accounting and failed to do so. Applying the
same ruling in the instant malversation case and Section 14(a), Rule 110 of the Revised Rules of
Court hereinbefore quoted, We hold and rule that the present case of malversation may be tried in
Manila since the offense charged was consummated in Manila.

Indeed, petitioner could have been charged and tried in Cagayan de Oro City for it is not disputed
that he received the sweepstakes tickets from the PCSO, Cagayan de Oro branch. The essential
ingredient of receiving the sweepstakes tickets took place in Cagayan de Oro City. He could also be
charged in the City of Manila since the final accounting must be rendered in the Central Office,
Manila. This is therefore, a case of concurrent jurisdiction by the proper court of the place wherein
"anyone of the essential ingredients thereof took place." But the choice of venue lies with the
prosecuting officer and not with the accused.

Petitioner pleads for equitable relief by having him tried in Cagayan de Oro City to afford him all the
opportunity in all adversary proceeding to present his evidence and witnesses. We cannot accept
petitioner's plea for equity because having admitted in writing his shortages in his letter to the
General Manager of PCSO in Manila Exhibit "K", he comes to court with unclean hands. He who
seeks equity must come to court with clean hands.

WHEREFORE, IN VIEW ALL THE FOREGOING, the decision appealed from is hereby AFFIRMED.
The records of this case are hereby ordered remanded to the trial court for further proceedings in the
ordinary course of law. No costs.

Petition denied.

SO ORDERED.

Makasiar (Chairman), Concepcion, Jr., De Castro and Escolin, JJ., concur.

Aquino, J., is on leave.

Abad Santos, J., reserves his vote.

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