** RULE 119
Inquest proceedings were conducted against
Republic of the Philippines
SUPREME COURT
Baguio City
FIRST DIVISION
G.R. No. 197291               April 3, 2013
DATU ANDAL AMPATUAN JR., Petitioner,
vs.
SEC. LEILA DE LIMA, as Secretary of the Department of Justice, CSP CLARO
ARELLANO, as Chief State Prosecutor, National Prosecution Service, and
PANEL OF PROSECUTORS OF THE MAGUINDANAO MASSACRE, headed by
RSP PETER MEDALLE, Respondents.
DECISION
BERSAMIN, J.:
In matters involving the exercise of judgment and discretion, mandamus
cannot be used to direct the manner or the particular way the judgment
and discretion are to be exercised. Consequently, the Secretary of Justice
may be compelled by writ of mandamus to act on a letter-request or a
motion to include a person in the information, but may not be compelled
by writ of mandamus to act in a certain way, i.e., to grant or deny such
letter-request or motion.
The Case
This direct appeal by petition for review on certiorari has been taken from
the final order issued on June 27, 2011 in Civil Case No. 10-124777 1 by the
Regional Trial Court (RTC), Branch 26, in Manila, dismissing petitioner’s
petition for mandamus.2
Antecedents
History will never forget the atrocities perpetrated on November 23, 2009,
when 57 innocent civilians were massacred in Sitio Masalay, Municipality
of Ampatuan, Maguindanao Province. Among the principal suspects was
petitioner, then the Mayor of the Municipality of Datu Unsay,
Maguindanao Province.
petitioner on November 26, 2009 at the General Santos (Tambler) Airport
Lounge, before he was flown to Manila and detained at the main office of
the National Bureau of Investigation (NBI). The NBI and the Philippine
National Police (PNP) charged other suspects, numbering more than a
hundred, for what became aptly known as the Maguindanao massacre. 3
Through Department Order No. 948, then Secretary of Justice Agnes
Devanadera constituted a Special Panel of Prosecutors to conduct the
preliminary investigation.
On November 27, 2009, the Department of Justice (DOJ) resolved to file
the corresponding informations for murder against petitioner, and to issue
subpoenae to several persons.4 On December 1, 2009, 25 informations for
murder were also filed against petitioner in the Regional Trial Court, 12th
Judicial Region, in Cotabato City. 5
On December 3, 2009, Secretary of Justice Devanadera transmitted her
letter to Chief Justice Puno requesting the transfer of the venue of the trial
of the Maguindanao massacre from Cotabato City to Metro Manila, either
in Quezon City or in Manila, to prevent a miscarriage of justice. 6 On
December 8, 2009, the Court granted the request for the transfer of
venue.7 However, on December 9, 2009, but prior to the transfer of the
venue of the trial to Metro Manila, the Prosecution filed a manifestation
regarding the filing of 15 additional informations for murder against
petitioner in Branch 15 of the Cotabato City RTC. 8 Later on, additional
informations for murder were filed against petitioner in the RTC in Quezon
City, Branch 211, the new venue of the trial pursuant to the resolution of
the Court.9
The records show that petitioner pleaded not guilty to each of the 41
informations for murder when he was arraigned on January 5,
2010,10 February 3, 2010,11 and July 28, 2010.12
In the joint resolution issued on February 5, 2010, the Panel of Prosecutors
charged 196 individuals with multiple murder in relation to the
Maguindanao massacre.13 It appears that in issuing the joint resolution of
February 5, 2010 the Panel of Prosecutors partly relied on the twin
affidavits of one Kenny Dalandag, both dated December 7, 2009. 14
On August 13, 2010, Dalandag was admitted into the Witness Protection
Program of the DOJ.15 On September 7, 2010, the QC RTC issued its
amended pre-trial order,16 wherein Dalandag was listed as one of the
Prosecution witnesses.17
On October 14, 2010, petitioner, through counsel, wrote to respondent
Secretary of Justice Leila De Lima and Assistant Chief State Prosecutor
Richard Fadullon to request the inclusion of Dalandag in the informations
for murder considering that Dalandag had already confessed his
participation in the massacre through his two sworn
declarations.18 Petitioner reiterated the request twice more on October 22,
201019 and November 2, 2010.20
By her letter dated November 2, 2010,21 however, Secretary De Lima
denied petitioner’s request.
Accordingly, on December 7, 2010, petitioner brought a petition for
mandamus in the RTC in Manila (Civil Case No. 10-124777), 22 seeking to
compel respondents to charge Dalandag as another accused in the various
murder cases undergoing trial in the QC RTC.
On January 19, 2011,23 the RTC in Manila set a pre-trial conference on
January 24, 2011 in Civil Case No. 10-124777. At the close of the pre-trial,
the RTC in Manila issued a pre-trial order.
In their manifestation and motion dated February 15, 2011 24 and February
18, 2011,25 respondents questioned the propriety of the conduct of a trial
in a proceeding for mandamus. Petitioner opposed.
On February 15, 2011, petitioner filed a motion for the production of
documents,26 which the RTC in Manila granted on March 21, 2011 after
respondents did not file either a comment or an opposition.
Respondents then sought the reconsideration of the order of March 21,
2011.
On March 21, 2011,27 the RTC in Manila issued a subpoena to Dalandag,
care of the Witness Protection Program of the DOJ, requiring him to
appear and testify on April 4, 2011 in Civil Case No. 10-124777.
On April 4, 2011, respondents moved to quash the subpoena. 28 Petitioner
opposed the motion to quash the subpoena on April 15, 2011. 29 The parties
filed other papers, specifically, respondents their reply dated April 26,
2011;30 petitioner an opposition on May 12, 2011; 31 and respondents
another reply dated May 20, 2011.32
On June 27, 2011,33 the RTC of Manila issued the assailed order in Civil
Case No. 10-124777 dismissing the petition for mandamus. 34
Hence, this appeal by petition for review on certiorari.
Issues
Petitioner raises the following issues, to wit:
1. WHETHER THE PUBLIC RESPONDENTS MAY BE COMPELLED BY
MANDAMUS TO INVESTIGATE AND PROSECUTE KENNY DALANDAG AS AN
ACCUSED IN THE INFORMATIONS FOR MULTIPLE MURDER IN THE
MAGUINADANAO MASSACRE CASES IN LIGHT OF HIS ADMITTED
PARTICIPATION THEREAT IN AFFIDAVITS AND OFFICIAL RECORDS FILED
WITH THE PROSECUTOR AND THE QC RTC; and,
2. WHETHER THE SUBSEQUENT INCLUSION OF KENNY DALANDAG IN THE
WITNESS PROTECTION PROGRAM JUSTIFIES EXCLUSION AS AN ACCUSED
AND HIS NON-INDICTMENT FOR HIS COMPLICITY IN THE MAGUINDANAO
MASSACRE NOTWITHSTANDING ADMISSIONS MADE THAT HE TOOK PART
IN ITS PLANNING AND EXECUTION.35
The crucial issue is whether respondents may be compelled by writ of
mandamus to charge Dalandag as an accused for multiple murder in
relation to the Maguindanao massacre despite his admission to the
Witness Protection Program of the DOJ.
Ruling
The appeal lacks merit.
The prosecution of crimes pertains to the Executive Department of the
Government whose principal power and responsibility are to see to it that
our laws are faithfully executed. A necessary component of the power to
execute our laws is the right to prosecute their violators. The right to
prosecute vests the public prosecutors with a wide range of discretion –
the discretion of what and whom to charge, the exercise of which depends
on a smorgasbord of factors that are best appreciated by the public
prosecutors.36
The public prosecutors are solely responsible for the determination of the
amount of evidence sufficient to establish probable cause to justify the
filing of appropriate criminal charges against a respondent. Theirs is also
the quasi-judicial discretion to determine whether or not criminal cases
should be filed in court.37
Consistent with the principle of separation of powers enshrined in the
Constitution, the Court deems it a sound judicial policy not to interfere in
the conduct of preliminary investigations, and to allow the Executive
Department, through the Department of Justice, exclusively to determine
what constitutes sufficient evidence to establish probable cause for the
prosecution of supposed offenders. By way of exception, however, judicial
review may be allowed where it is clearly established that the public
prosecutor committed grave abuse of discretion, that is, when he has
exercised his discretion "in an arbitrary, capricious, whimsical or despotic
manner by reason of passion or personal hostility, patent and gross
enough as to amount to an evasion of a positive duty or virtual refusal to
perform a duty enjoined by law."38
The records herein are bereft of any showing that the Panel of Prosecutors
committed grave abuse of discretion in identifying the 196 individuals to
be indicted for the Maguindanao massacre. It is notable in this regard that
petitioner does not assail the joint resolution recommending such number
of individuals to be charged with multiple murder, but only seeks to have
Dalandag be also investigated and charged as one of the accused based
because of his own admissions in his sworn declarations. However, his
exclusion as an accused from the informations did not at all amount to
grave abuse of discretion on the part of the Panel of Prosecutors whose
procedure in excluding Dalandag as an accused was far from arbitrary,
capricious, whimsical or despotic. Section 2, Rule 110 of the Rules of Court,
which requires that "the complaint or information shall be xxx against all
persons who appear to be responsible for the offense involved," albeit a
mandatory provision, may be subject of some exceptions, one of which is
when a participant in the commission of a crime becomes a state witness.
The two modes by which a participant in the commission of a crime may
become a state witness are, namely: (a) by discharge from the criminal
case pursuant to Section 17 of Rule 119 of the Rules of Court; and (b) by
the approval of his application for admission into the Witness Protection
Program of the DOJ in accordance with Republic Act No. 6981 (The Witness
Protection, Security and Benefit Act). 39 These modes are intended to
encourage a person who has witnessed a crime or who has knowledge of
its commission to come forward and testify in court or quasi-judicial body,
or before an investigating authority, by protecting him from reprisals, and
shielding him from economic dislocation.
These modes, while seemingly alike, are distinct and separate from each
other.
Under Section 17, Rule 119 of the Rules of Court, the discharge by the trial
court of one or more of several accused with their consent so that they can
be witnesses for the State is made upon motion by the Prosecution before
resting its case. The trial court shall require the Prosecution to present
evidence and the sworn statements of the proposed witnesses at a hearing
in support of the discharge. The trial court must ascertain if the following
conditions fixed by Section 17 of Rule 119 are complied with, namely: (a)
there is absolute necessity for the testimony of the accused whose
discharge is requested; (b) there is no other direct evidence available for
the proper prosecution of the offense committed, except the testimony of
said accused; (c) the testimony of said accused can be substantially
corroborated in its material points; (d) said accused does not appear to be
most guilty; and (e) said accused has not at any time been convicted of any
offense involving moral turpitude.
On the other hand, Section 10 of Republic Act No. 6981 provides:
Section 10. State Witness. — Any person who has participated in the
commission of a crime and desires to be a witness for the State, can apply
and, if qualified as determined in this Act and by the Department, shall be
admitted into the Program whenever the following circumstances are
present:
a. the offense in which his testimony will be used is a grave felony as
defined under the Revised Penal Code or its equivalent under special laws;
b. there is absolute necessity for his testimony;
c. there is no other direct evidence available for the proper prosecution of
the offense committed;
d. his testimony can be substantially corroborated on its material points;
e. he does not appear to be most guilty; and
f. he has not at any time been convicted of any crime involving moral
turpitude.
An accused discharged from an information or criminal complaint by the
court in order that he may be a State Witness pursuant to Section 9 and 10
of Rule 119 of the Revised Rules of Court may upon his petition be
admitted to the Program if he complies with the other requirements of this
Act. Nothing in this Act shall prevent the discharge of an accused, so that
he can be used as a State Witness under Rule 119 of the Revised Rules of
Court.
Save for the circumstance covered by paragraph (a) of Section 10, supra,
the requisites under both rules are essentially the same. Also worth noting
is that an accused discharged from an information by the trial court
pursuant to Section 17 of Rule 119 may also be admitted to the Witness
Protection Program of the DOJ provided he complies with the
requirements of Republic Act No. 6981.
A participant in the commission of the crime, to be discharged to become a
state witness pursuant to Rule 119, must be one charged as an accused in
the criminal case. The discharge operates as an acquittal of the discharged
accused and shall be a bar to his future prosecution for the same offense,
unless he fails or refuses to testify against his co-accused in accordance
with his sworn statement constituting the basis for his discharge. 40 The
discharge is expressly left to the sound discretion of the trial court, which
has the exclusive responsibility to see to it that the conditions prescribed
by the rules for that purpose exist.41
While it is true that, as a general rule, the discharge or exclusion of a co-
accused from the information in order that he may be utilized as a
Prosecution witness rests upon the sound discretion of the trial
court,42 such discretion is not absolute and may not be exercised
arbitrarily, but with due regard to the proper administration of
justice.43 Anent the requisite that there must be an absolute necessity for
the testimony of the accused whose discharge is sought, the trial court has
to rely on the suggestions of and the information provided by the public
prosecutor. The reason is obvious – the public prosecutor should know
better than the trial court, and the Defense for that matter, which of the
several accused would best qualify to be discharged in order to become a
state witness. The public prosecutor is also supposed to know the evidence
in his possession and whomever he needs to establish his case, 44 as well as
the availability or non-availability of other direct or corroborative evidence,
which of the accused is the ‘most guilty’ one, and the like. 45
On the other hand, there is no requirement under Republic Act No. 6981
for the Prosecution to first charge a person in court as one of the accused
in order for him to qualify for admission into the Witness Protection
Program. The admission as a state witness under Republic Act No. 6981
also operates as an acquittal, and said witness cannot subsequently be
included in the criminal information except when he fails or refuses to
testify. The immunity for the state witness is granted by the DOJ, not by
the trial court. Should such witness be meanwhile charged in court as an
accused, the public prosecutor, upon presentation to him of the WHEREFORE, the Court DENIES the petition for review on certiorari;
certification of admission into the Witness Protection Program, shall AFFIRMS the final order issued on June 27, 2011 in Civil Case No. 10-
petition the trial court for the discharge of the witness. 46 The Court shall 124777 by the Regional Trial Court in Manila; and ORDERS petitioner to
then order the discharge and exclusion of said accused from the pay the costs of suit.
information.47
SO ORDERED.
The admission of Dalandag into the Witness Protection Program of the
Government as a state witness since August 13, 2010 was warranted by
the absolute necessity of his testimony to the successful prosecution of the
criminal charges. Apparently, all the conditions prescribed by Republic Act
No. 6981 were met in his case. That he admitted his participation in the
commission of the Maguindanao massacre was no hindrance to his
admission into the Witness Protection Program as a state witness, for all
that was necessary was for him to appear not the most guilty. Accordingly,
he could not anymore be charged for his participation in the Maguindanao
massacre, as to which his admission operated as an acquittal, unless he
later on refuses or fails to testify in accordance with the sworn statement
that became the basis for his discharge against those now charged for the
crimes.

Mandamus shall issue when any tribunal, corporation, board, officer or

person unlawfully neglects the performance of an act that the law
specifically enjoins as a duty resulting from an office, trust, or station. It is
proper when the act against which it is directed is one addressed to the
discretion of the tribunal or officer. In matters involving the exercise of
judgment and discretion, mandamus may only be resorted to in order to
compel respondent tribunal, corporation, board, officer or person to take
action, but it cannot be used to direct the manner or the particular way
discretion is to be exercised, 48or to compel the retraction or reversal of an
action already taken in the exercise of judgment or discretion. 49

As such, respondent Secretary of Justice may be compelled to act on the

letter-request of petitioner, but may not be compelled to act in a certain
way, i.e., to grant or deny such letter-request. Considering that respondent
Secretary of Justice already denied the letter-request, mandamus was no
longer available as petitioner's recourse.
 The People likewise filed its petition, docketed as G.R. No. 209215. This
petition seeks to reverse the amended decision of the CA insofar as it
ordered the re-raffle of the criminal case to another RTC judge for trial on
the merits.

The Factual Antecedents

Republic of the Philippines
SUPREME COURT On May 18, 2009 and June 11, 2009, Montero (a former employee of the
Manila BSJ Company owned by the Jimenezes) executed sworn statements
SECOND DIVISION confessing his participation in the killing ofRuby Rose Barrameda (Ruby
G.R. No. 209195               September 17, 2014 Rose),and naming petitioner Jimenez, Lope Jimenez (Lope, the petitioner
MANUEL J. JIMENEZ, JR., Petitioner, Jimenez’s younger brother),Lennard A. Descalso (Lennard) alias "Spyke,"
vs. Robert Ponce (Robert) alias "Obet," and Eric Fernandez (Eric), as his
PEOPLE OF THE PHILIPPINES, Respondent. coconspirators.2
x-----------------------x
G.R. No. 209215 The statements of Montero which provided the details on where the
PEOPLE OF THE PHILIPPINES, Petitioner, alleged steel casing containing the body of Ruby Rose was dumped, led to
vs. the recovery of a cadaver, encased ina drum and steel casing, near or
MANUEL J. JIMENEZ, JR., Respondent. practically at the place that Montero pointed to.3
DECISION
BRION, J.: On August 20, 2009, the People, through the state prosecutors, filed an
Information before the RTC, charging Jimenez, Lope, Lennard, Robert, Eric
Before the Court are two consolidated petitions for review on certiorari and Montero of murder for the killing of Ruby Rose.4
filed under Rule 45 of the Rules of Court, assailing the amended
decision1 of the Court of Appeals (CA) in CA-G.R. SP No. 121167 entitled Montero thereafter filed a motion for his discharge entitled "Motion for
Manuel J. Jimenez, Jr. v. Hon. Zaldy B. Docena et al. the Discharge of the Witness as Accused Pursuant to the Witness
Protection Program" pursuant to Republic Act No. 6981. The People also
The CA did not find any grave abuse of discretion on the part of the filed a motion to discharge Montero as a state witness for the prosecution.
Regional Trial Court (RTC Branch 170, Malabon) Judge Zaldy B. Docena Jimenez opposed both motions.5
(Judge Docena)in issuing the order which granted the People of the
Philippines’ motion to discharge Manuel A. Montero (Montero)as a state The RTC’s ruling
witness in Criminal Case No. 39225-MN.
On March 19, 2010, the RTC’s Acting Presiding Judge Hector B. Almeyda
The G.R. No. 209195petition was filed by Manuel J. Jimenez, Jr. (Jimenez). (Judge Almeyda)denied the motion to discharge Montero as a state
He prays in this petition for the reversal of the CA’s amended decision witness.6
insofar as it ruled that Judge Docena did not gravely abuse his discretion in
issuing the assailed order.
Judge Almeyda ruled that the prosecution failed to comply with the
requirements of Section 17, Rule 119 of the Revised Rules of Criminal
Procedure for the discharge of an accused as a state witness; it failed to
clearly show that Montero was not the most guilty or, at best, the least
guilty among the accused. The judge further ruled that Montero’s
statements were not corroborated by the other evidence on record. The
prosecution, too, failed to present evidence to sustain the possibility of
conviction against Jimenez.7
Montero and the People filed separate motions for reconsideration.
The July 30, 2010 order
On July 30, 2010, Judge Docena, the newly-appointed regular judge,
reconsidered and reversed Judge Almeyda’s order and ruled that the
prosecution had presented clear, satisfactory and convincing evidence
showing compliance with the requisites of Section 17, Rule 119 of the
Revised Rules of Criminal Procedure.
According to Judge Docena, the crime would have remained undiscovered
and unsolved had it not been for Montero’s extrajudicial confession that
narrated in detail the manner of the abductionand subsequent murderof
Ruby Rose. As the crime was committed in secret, only one of the co-
conspirators, such asMontero, could give direct evidence identifying the
other coconspirators.
Judge Docena further ruled that Montero is qualified tobe discharged as a
state witness as he does not appear to be the most guilty although he is a
principal by direct participation. The principals by inducement are more
guilty because, without their orders, the crime would not have been
committed. Finally, Montero has not been convicted of any crime involving
moral turpitude. Jimenez moved for the reconsideration of Judge Docena’s
ruling.8
The December 29, 2010 order
During the pendency of the motion for reconsideration, Jimenez filed a
motion for inhibition, praying that Judge Docena inhibit himself from
hearing the case on the ground of bias and prejudice. Judge Docena denied
the motion in his order of December 29, 2010. 9
The June 29, 2011 order
On June 29, 2011, Judge Docena issued an omnibus order: 1) denying the
petitioner’s motion for reconsideration of the July 30, 2010 order; 2)
denying the petitioner’s motion for reconsideration of the December 29,
2010 order; and 3) granting Manuel Jimenez III’s alternative motion to
suspend the proceedings, as his inclusion in the Information was still
pending final determination by the Office of the President.
Jimenez responded to these adverse rulings by filing with the CA a petition
for certiorariunder Rule 65 of the Rules of Court. The petition sought the
annulment of Judge Docena’s orders dated July 30, 2010, December 29,
2010, and June 29, 2011. The petition also prayed for the issuance of a
temporary restraining order and a writ of preliminary injunction that the
CA both granted in its resolutions of December 8, 2011 and February 6,
2012, respectively.10
The CA’s Decision
On May 22, 2012, the CA’s then Tenth Division, through the ponencia of
Associate Justice Agnes Reyes-Carpio (concurred in by Associate Justice
Jose C. Reyes, Jr. and Associate Justice Priscilla J. Baltazar-Padilla) rendered
a decision granting Jimenez’ petition.11
However, on motion for reconsideration filed by the People, the CA
reversedits earlier ruling and issued anAmended Decision penned by
Associate Justice Jose Reyes.
The CA’s Amended Decision
The CA held that Judge Docena did not gravely abuse his discretion in
ordering Montero’s discharge to become a state witness because the
prosecution had complied with the requirements of Section 17, Rule 119 of
the Revised Rules of Criminal Procedure. 12
First, Judge Docena acted in accordance with settled jurisprudence when
he ruled that there was absolute necessity for the testimony of Montero as
no other direct evidence other than his testimony was available.
Additionally, since the determination of the requirements under Section
17, Rule 119 of the Revised Rules of Criminal Procedure is highly factual in
nature, Judge Docena did not commit grave abuse of discretion in largely
relying on the recommendation of the prosecution to discharge Montero
as a state witness.13
Furthermore, the CA agreed with Judge Docena that Montero is not the
most guilty among the accused because the principals by inducement are
more guilty than the principals by direct participation. To the CA, this
finding is highly factual in nature and it would not interfere with the trial
court’s exercise of discretion on factual issues in the absence of showing
that the court had acted with grave abuse of discretion. 14
On Judge Docena’s ‘no inhibition’ order, the CA held that while the case
does not call for mandatory inhibition, it should still be raffled to another
sala for trial on the meritsto avoid any claim of bias and prejudice. 15
The CA likewise dismissed the motion for the issuance of a show cause
order which Jimenez filed against Judge Docena.16
Both Jimenez and the People moved for partial reconsideration of the CA’s
order but these motions were all denied.17 The denials prompted both
parties to file with this Court the present consolidated petitions for review
on certiorari.
The Present Petitions
I. G.R. No. 209195 (The Jimenez Petition)
Jimenez raises the following errors:
First, there is no necessity to discharge Montero as a state witness
because: 1) the voluntary sworn extrajudicial confessions of Montero are
all in the possession of the prosecution which they could readily present in
court without discharging Montero; and 2) there was unjust favoritism in
the discharge of Montero because all the other conspirators are equally
knowledgeable of the crime.18
Second, contrary to the CA’s ruling, the judge, and not the prosecution, has
the ultimate discretion in ensuring that the requirements under Section 17,
Rule 119 are complied with. 19 Third, the cases the CA cited are factually
different from the present case. Chua v. CA 20 should not apply as it deals
with two accused, one of whom was ordered discharged. 21 Fourth,
Montero’s testimony cannot be substantially corroborated in its material
points as the prosecution’s own evidence contradicts his declarations.
These inconsistencies include: Montero’s statement that a "busal" was
placed inside the mouth of Ruby Rose; this statement is belied by the other
prosecution witness; Montero also never mentioned the presence of a
packaging tape wrapped around the head and neck of the recovered
cadaver; in Montero’s sinumpaang salaysay, he stated that Ruby Rose was
killed by strangulation using a "lubid" but the death certificate stated
asphyxia by suffocation and not by strangulation; the identification of the
cadaver as Ruby Rose is likewise questionable as there are differences in
the height, and the dental and odontological reports of Ruby Rose and the
recovered cadaver.
Jimenez argued that these inconsistencies would require a thorough
scrutiny; hence, the immediate discharge of Montero as a state witness is
suspicious.22
Fifth, Montero appears to be the mostguilty. He was the architect who
designed and actively participated in all phases of the alleged crime. 23
Jimenez further argued that there is no authority supporting the ruling that
the principals by inducement are more guilty than the principal by direct
participation. On the contrary, the Revised Penal Code imputes on the
principal by direct participation the heavier guilt; without the latter’s
execution of the crime, the principal byinducement cannot be made liable.
Even if the principal by inducement is acquitted, the principal by direct
participation can still be held liable and not vice-versa. 24
Sixth, the discharge of Montero was irregular because Judge Docena failed
to conduct a prior hearing.25
Finally, Montero already executed a notice of withdrawal of consent and
testimony which was submitted to the CA.26
Comment of the People
The People argued that Jimenez is now estopped from raising the lack of
hearing as an issue since he raised this issue only after Judge Docena
granted the motion to discharge and not after Judge Almeyda denied the
motion – an action that was favorable to him.27
It also argued that Jimenez actively participated in the proceedings for
Montero’s discharge as the trial court received evidence for and against
the discharge. In this light, Judge Docena’s order granting or denying the
motion for discharge is in order, notwithstanding the lack of actual
hearing.28
The People also agreed with the CA’s amended ruling that the
requirements for the discharge of anaccused as a state witness were
complied with.29 It added that the availability of the extrajudicial
statements in the prosecution’s possession is not a ground to disqualify an
accused from being a state witness.30
It further maintained that the alleged contradictions between Montero’s
statements and other prosecution’s evidence are better resolved during
trial and are irrelevant tothe issues in the present case. 31
For purposes of the present case, the material allegations of Montero on
the identity of the victim and the manner of her killing were substantially
corroborated by the presence of the recovered original steel casing, the
drum containing a cadaver, the place where it was found, and the
cadaver’s apparel.32
The People observed that Montero had already testified on direct
examination on June 28, 2011 and October 25, 2011. He attested and
affirmed his statements in his affidavits dated May 18 and June 11, 2009;
he narrated in his statements the murder of Ruby Rose and Jimenez’
participation.33
Reply of Jimenez
Jimenez reiterated his allegations in the comment. He added that Montero
did not identify or authenticate his sworn statements in support of the
motion for his discharge.34
According to Jimenez, the notice of withdrawal of consent and testimony
of Montero rendered his discharge as a state witness moot and
academic.35
II. G.R. No. 209215(The People’s Petition)
The People, through the Office of the Solicitor General, argue that the CA’s
order to re-raffle the case to another sala is not supported by Section 1,
Rule 137 of the Rules of Court, either under mandatory or voluntary
inhibition.36
To disqualify a judge from hearing a case, bias and prejudice must be
proven, in the manner being done in cases of voluntary inhibition. 37
Jurisprudence establishes, too, that affiliation does not necessarily
translate to bias.38 A judge’s non-favorable action against the defense is
not also necessarily indicative of bias and prejudice. 39
Finally, the administrative case filed against Judge Docena is not a ground
to disqualify him from hearing the case.40
Comment of Jimenez
The option for voluntary inhibition does not give judges unlimited
discretion to decide whether or not they will desist from hearing a case.
Jimenez enumerated Judge Docena’s acts that allegedly constituted bias
and prejudice:
First, Judge Docena granted the motion to discharge even though the legal
requirements under Section 17, Rule 119 of the Revised Rules of Criminal
Procedure were not factually and legally proven. He also relied on the
suggestions and information of the prosecutors thereby surrendering his
duty to ensure that the requirements for a discharge are duly complied
with.
Second, in a previous case where his fraternity brother appeared as
counsel, Judge Docena inhibited himself from hearing the case. Thus, no
reason exists for him not to similarly act in the present case where Jimenez
is his fraternity brother and State Prosecutor Villanueva was his classmate.
Third, Judge Docena granted the prosecution’s motion for cancellation of
the September 29, 2011 hearing because the state prosecutor would be
attending a legal forum. This was improper since other prosecutors were
available and other prosecution witnesses could be presented. Fourth,
Judge Docena has an uncontrolled temper and unexplainable attitude. In
Jimenez’ bail hearing, Judge Docena immediately shouted at Jimenez’
counsel whenhe made a mistake.41 The Issues
1) Whether or not the CA erred in ruling that Judge Docena did
not commit grave abuse of discretion in granting the motion to
discharge Montero as a state witness; and
2) Whether or not the CA erred in ordering the re-raffle of
Criminal Case No. 39225-MN toanother RTC branch for trial on the
merits.
THE COURT’S RULING:
G.R. No. 209195
We agree with the CA’s ruling that Judge Docena did not gravely abuse his
discretion when he granted the motion to discharge Montero as a state
witness.
The well-settled rule is that a petition for certiorariagainst a court which
has jurisdiction over a case will prosper only ifgrave abuse of discretion is
clear and patent. The burden is on the part of the petitioner to prove not
merely reversible error, but grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of the public respondent issuing the
impugned order. Notably, mere abuse of discretion is not enough; the
abuse must be grave. Jurisprudence has defined "grave abuse of
discretion" as the capricious and whimsical exercise of judgment so patent
and gross as to amount to an evasion of a positive duty or a virtual refusal
to perform a duty enjoined by law, as where the power is exercised in an
arbitrary and despotic manner because of passion or hostility. 42
We agree with the CA that the prosecution has complied with the
requisites under Section 17,Rule 119 of the Revised Rules of Criminal
Procedure which provides that:
In the discharge of an accused inorder that he may be a state witness, the
following conditions must be present, namely:
(1) Two or more accused are jointly charged with the commission
of an offense;
(2) The motion for discharge isfiled by the prosecution before it
rests its case;
(3) The prosecution is required to present evidence and the sworn
statement of each proposed state witness at a hearing in support
of the discharge;
(4) The accused gives his consent to be a state witness; and
 (5) The trial court is satisfied that:
a) There is absolute necessity for the testimony of the
accused whose discharge is requested; b) There is no
other directevidence available for the proper prosecution
of the offense committed, except the testimony of said
accused;
c) The testimony of said accused can be substantially
corroborated in its material points;
d) Said accused does not appear to be the most guilty;
and,
e) Said accused has not atany time been convicted of any
offense involving moral turpitude.
No issues have been raised with respect to conditions (1), (2), (4), and 5(e).
The parties dispute the compliance with conditions (3) and 5(a) to (d) as
the issues before us. We shall discuss these issues separately below.
Absolute necessity of the testimony of Montero
We see no merit in Jimenez’s allegation that no absolute necessity exists
for Montero’s testimony.
Absolute necessity exists for the testimony of an accused sought to be
discharged when he or she alone has knowledge of the crime. In more
concrete terms, necessity is not there when the testimony would simply
corroborate or otherwise strengthen the prosecution’s evidence. 43 We do
not agree with Jimenez that the Court’s pronouncement in Chua v. CA et
al.is inapplicable in the present case simply because more than two
accused are involved in the present case. The requirement of absolute
necessity for the testimony of a state witness depends on the
circumstances of each case regardless of the number of the participating
conspirators.
In People v. Court of Appeals and Perez et al., 44 the Court ordered the
discharge of the accused Roncesvalles, ruling that his testimony is
absolutely necessary to prove conspiracy with his other co-accused. The
Court agreed with the Solicitor General that considering the circumstances
of the case and that the other accused could not be compelled to testify,
certain facts necessary for the conviction of the accused would not come
to light unless the accused Roncesvalles was allowed to testify for the
State. Specifically, unless accused Roncesvalles was allowed to testify for
the government, there would be no other direct evidence available for the
proper prosecution of the offense charged, particularly on the role of his
co-accused in the preparation and completion of the falsified loan
application and its supporting papers.
Similarly in People v. Court of Appeals and Tan, 45 the Court reinstated the
ruling of the trial court which ordered the discharge of accused Ngo Sin
from among the five accused. The record justified his discharge as a state
witness considering the absolutenecessity of his testimony to prove that
the accused Luciano Tan had planned and financed the theft.
In the present case, not one ofthe accused-conspirators, except Montero,
was willing to testify on the alleged murder of Ruby Rose and their
participation in her killing. Hence, the CA was correct in ruling that Judge
Docena acted properly and in accordance with jurisprudence in ruling that
there was absolute necessity for the testimony of Montero. He alone is
available to provide directevidence of the crime.
That the prosecution could use the voluntary statements of Montero
without his discharge as a state witness is not an important and relevant
consideration. To the prosecution belongs the control of its case and this
Court cannot dictate on its choice in the discharge of a state witness, save
only when the legal requirements have not been complied with.
The prosecution’s right to prosecute gives it "a wide range of discretion —
the discretion of whether, what and whom to charge, the exercise of which
depends on a smorgasbord of factors which are best appreciated by
prosecutors." Under Section 17, Rule 119 of the Revised Rules of Criminal
Procedure, the court is given the power to discharge a state witness only
after it has already acquired jurisdiction over the crime and the accused. 46
Montero’s testimony can be substantially corroborated
We also do not find merit in Jimenez’ argument that Montero’s testimony
cannot be substantially corroborated in its material points and is even
contradicted by the physical evidence of the crime. As the trial court
properly found, the evidence consisting of the steel casing where the
cadaver was found; the drum containing the cadaver which the
prosecution successfully identified (and which even the acting Judge
Almeyda believed) to be Ruby Rose; the spot in the sea that Montero
pointed to (where the cadaver was retrieved); the apparel worn by the
victim when she was killed as well as her burned personal effects, all partly
corroborate some of the material points in the sworn statements of
Montero.47
With these as bases, Judge Docena’s ruling that Montero’s testimony
found substantial corroboration cannot becharacterized as grave abuse of
discretion.
Jimenez points to the discrepancies in Montero’s statements and the
physical evidence, such as the absence of "busal"in the mouth of the
retrieved cadaver; his failure to mention that they used packaging tape
wrapped around the head down to the neck of the victim; and his
declaration that the victim was killed through strangulation using a rope
(lubid).
However, the corroborated statements of Montero discussed above are far
more material than the inconsistencies pointed outby Jimenez, at least for
purposes of the motion to discharge.
The alleged discrepancies in the physical evidence, particularly on the
height and dental records of Ruby Rose, are matters that should properly
be dealt with during the trial proper.
We emphasize at this point that to resolve a motion to discharge under
Section 17, Rule 119 of the Revised Rules of Criminal Procedure, the Rules
only require that that the testimony ofthe accused sought to be discharged
be substantially corroborated in its material points, not on all points.
This rule is based on jurisprudential line that in resolving a motion to
discharge under Section 17, Rule 119, a trial judge cannot be expected or
required, at the start of the trial, to inform himself with absolute certainty
of everything that may develop in the course of the trial with respect to
the guilty participation of the accused. If that were practicable or possible,
there would be little need for the formality of a trial. 48
Montero is not the most guilty
We also do not agree with Jimenez that the CA erred in finding that
Montero is not the most guilty.
By jurisprudence, "most guilty" refers to the highest degree of culpability
in terms of participation in the commission of the offense and does not
necessarily mean the severity of the penalty imposed. While all the
accused may be given the same penalty by reason of conspiracy, yet one
may be considered to have lesser orthe least guilt taking into account his
degree of participation in the commission of the offense. 49
What the rule avoids is the possibility that the most guilty would be set
free while his co-accused who are less guilty in terms of participation
would be penalized.50
Before dwelling on the parties’ substantive arguments, we find it necessary
to first correct the rulings of the CA that are not exactly correct.
Contrary to the CA’s findings, a principal by inducement is not
automatically the most guilty in a conspiracy. The decision of the Court in
People v. Baharan51 did not involve the resolution of a motion to discharge
an accused to become a state witness. Instead, the pronouncement of the
Court related to the culpability of a principal by inducement whose
coinducement act was the determining cause for the commission of the
crime.
Thus viewed, Baharan cannot be the basis of a peremptory
pronouncement that a principal by inducement is more guilty than the
principal by direct participation.
In Chua v. People,52 which involved a motion to discharge an accused, the
Court declared that if one induces another to commit a crime, the
influence is the determining cause of the crime. Without the inducement,
the crime would not have been committed; it is the inducer who sets into
motion the execution of the criminal act.
To place the Chua ruling in proper perspective, the Court considered the
principal by inducement as the most guilty based on the specific acts done
by the two accused and bearing in mind the elements constitutive of the
crime of falsification of private documents where the element of "damage"
arose through the principal by inducement’s encashment of the falsified
check. This led the Court to declare that the principal by inducement is the
"most guilty" (or properly, the more guilty) between the two accused.
Thus, as a rule, for purposes of resolving a motion to discharge an accused
as a state witness,what are controlling are the specific acts of the accused
in relation to the crime committed.
We cannot also agree with Jimenez’ argument that a principal by direct
participation is more guilty than the principal by inducement as the
Revised Penal Code penalizes the principal by inducement only when the
principal by direct participation has executed the crime.
We note that the severity of the penalty imposed is part of the substantive
criminal law which should not be equated with the procedural rule on the
discharge of the particeps criminis. The procedural remedy of the
discharge of an accused is based on other considerations, such as the need
for giving immunity to one of several accused in order that not all shall
escape, and the judicial experience that the candid admission of an
accused regarding his participation is a guaranty that he will testify
truthfully.53
On the substantive issues of the present case, we affirm the CA ruling that
no grave abuse of discretion transpired when Judge Docena ruled that
Montero is not the most guilty.
We draw attention to the requirement that a state witness does not need
to be found to be the least guilty; he or she should not only "appear to be
the most guilty."54
From the evidence submitted by the prosecution in support of its motion
to discharge Montero, it appears that while Montero was part of the
planning, preparation, and execution stage as most of his co-accused had
been, he had no direct participation inthe actual killing of Ruby Rose. While
Lope allegedly assigned to him the execution of the killing, the records do
not indicate that he had active participation in hatching the plan to kill
Ruby Rose, which allegedly came from accused Lope and Jimenez, and in
the actual killing of Ruby Rose which was executed by accused
Lennard.55 Montero’s participation was limited to providing the steel box
where the drum containing the victim’s body was placed, welding the steel
box to seal the cadaver inside, operating the skip or tug boat, and,
together with his co-accused, dropping the steelbox containing the cadaver
into the sea.
At any rate, the discharge of anaccused to be utilized as a state witness
because he does not appear to bethe most guilty is highly factual in nature
as it largely depends on the appreciation of who had the most participation
in the commission of the crime. The appellate courts do not interfere in
the discretionary judgment ofthe trial court on this factual issue except
when grave abuse ofdiscretion intervenes.56
In light of these considerations, we affirm the ruling of the CA that Judge
Docena did not commit grave abuse of discretion in ruling that Montero is
not the most guilty.
The discharge of Montero as a state witness was procedurally sound
We agree with the People that Jimenez is estopped from raising the issue
of lack of hearing prior to the discharge of Montero asa state witness.
Jimenez did not raise this issue when Acting Judge Almeyda denied the
motion to discharge. This denial, of course, was favorable toJimenez. If he
found no reason to complain then, why should we entertain his
hearingrelated complaint now?
The People even supported its argument that Jimenez actively participated
in the proceedings of the motion to discharge such as his filing of a 20-page
opposition to the motion; filing a reply to the People’s comment;
submitting his memorandum of authorities on the qualification of Montero
as state witness; and filing a consolidated opposition on the People’s and
Montero’s motion for reconsideration of Judge Almeyda’s order. 57
In these lights, Jimenez cannot impute grave abuse of discretion on Judge
Docena for not conducting a hearing prior to his grant of the motion to
discharge. In People v. CA and Pring, 58 the Court ruled that with both
litigants able to present their sides,the lack of actual hearing is not
sufficiently fatal to undermine the court's ability to determine whether the
conditions prescribed for the discharge ofan accused as a state witness
have been satisfied. Contrary to Jimenez’ argument, the Pringruling is
applicable in the present case. In Pring, the sworn statements of the
accused sought to be discharged (Nonilo Arile), together with the
prosecution’s other evidence, were already in the possession of the court
and had been challenged by the respondent in his Opposition to Discharge
Nonilo Arile and in his Petition for Bail. The issue in that case was the
propriety of the trial court’s resolution of the motion to discharge Nonilo
Arile without conducting a hearing pursuant Section 9, Rule 119 of the
1985 Rules on Criminal Procedure (now Section 17, Rule 119 ofthe Revised
Rules of Criminal Procedure).
With Jimenez’ active participation in the proceeding for the motion to
discharge as outlined above, the ruling of the Court in Pringshould squarely
apply.
Montero’s Notice of Withdrawal of Consent is not material in the
resolution of the present case
We find no merit in Jimenez’ argument that Montero’s submission of his
notice of withdrawal of consent and testimony of Manuel dated February
26, 2013 rendered the present case moot, since the Court cannot consider
this document in this petition.
It must be recalled that the present case involves an appellate review of
the CA’s decision which found no grave abuse of discretion on the part of
Judge Docena in granting the motion to discharge.
Under the present recourse now before this Court, we cannot rule on the
notice of withdrawal and consider it in ruling on the absence or presence
of grave abuse of discretion in the issuance of the assailed orders. The
present case is not the proper venue for the determination of the value of
the notice.
This conclusion is all the more strengthened by the fact that Montero
already testified on direct examination on June 28, 2011 and October 25,
2011. He attested and affirmed his statements in his affidavits dated May
18 and June 11, 2009; he not only narrated the grisly murder of Ruby Rose,
but also revealed Jimenez’ participation in the murder.
With this development, the notice may partake of the nature of a
recantation, which is usually taken ex parte and is considered inferior to
the testimony given in open court. It would be a dangerous rule to reject
the testimony taken before a court of justice simply because the witness
who gave it later changed his/her mind. 59
In sum on this point, the appreciation of the notice of withdrawal properly
belongs to the trial court.
Interplay between the judge and prosecutor in the motion to discharge an
accused to become a state witness
As a last point, we find it necessary to clarify the roles of the prosecution
and the trial court judge in the resolution of a motion to discharge an
accused as a state witness.This need arises from what appears to us to be a
haphazard use of the statement that the trial court judge must rely in large
part on the prosecution’s suggestion in the resolution of a motion to
discharge.
In the present case, the CA cited Quarto v. Marcelo 60 in ruling that the trial
court must rely in large part upon the suggestions and the information
furnished by the prosecuting officer, thus:
A trial judge cannot be expected orrequired to inform himself with
absolute certainty at the very outset of the trial as to everything which
may be developed in the course of the trial in regard to the guilty
participation of the accused in the commission of the crime charged in the
complaint. If that were practicable or possible there would be little need
for the formality of a trial. He must rely inlarge part upon the suggestions
and the information furnished by the prosecuting officer in coming to his
conclusions as to the "necessity for the testimony of the accused whose
discharge is requested"; asto the availability or non-availability of other
direct or corroborative evidence; as to which of the accused is "most
guilty," and the like.
We deem it important to place this ruling in its proper context lest we
create the wrong impression that the trial court is a mere "rubber stamp"
of the prosecution, in the manner that Jimenez now argues.
In Quarto, we emphasized that it is still the trial court that determines
whether the prosecution’s preliminary assessment of the accused-witness’
qualifications to be a state witness satisfies the procedural norms. This
relationship is in reality a symbiotic one as the trial court, by the very
nature of its role in the administration of justice, largely exercises its
prerogative based on the prosecutor’s findings and evaluation. 61
Thus, we ruled in People v. Pring 62 that in requiring a hearing in support of
the discharge, the essential objective of the law is for the court to receive
evidence for or against the discharge, which evidence shall serve as the
court’s tangible and concrete basis – independently of the fiscal's or
prosecution's persuasions – in granting or denying the motion for
discharge. We emphasize, in saying this, that actual hearing is not required
provided that the parties have both presented their sides on the merits of
the motion.1âwphi1
We likewise do not agree with Jimenez that Quartoshould not apply to the
present case, since the principles laid down in that case similarly operate in
the present case, specifically, on issue of the procedural processes
required in the discharge of the accused as a state witness.
G.R. No. 209215
We find the People’s petition meritorious.
We note at the outset that the CA did not provide factual or legal support
when it ordered the inhibition ofJudge Docena. Additionally, we do not
find Jimenez’ arguments sufficiently persuasive.
The second paragraph of Section 1 of Rule 137 does not give judges the
unlimited discretion to decide whether or not to desist from hearing a
case. The inhibition must be for just and valid causes. The mere imputation
of bias or partiality is likewise not enough ground for their inhibition,
especially when the charge is without basis.63
It is well-established that inhibition is not allowed at every instance that a
schoolmate or classmate appears before the judge as counsel for one of
the parties. A judge, too, is not expected to automatically inhibit himself
from acting in a case involving a member of his fraternity, such as Jimenez
in the present case.64
In the absence of clear and convincing evidenceto prove the charge of bias
and prejudice, a judge’s ruling not to inhibit oneself should be allowed to
stand.65
In attributing bias and prejudice to Judge Docena, Jimenez must prove that
the judge acted or conducted himself in a manner clearly indicative of
arbitrariness or prejudice soas to defeat the attributes of the cold
neutrality that an impartial judge must possess.Unjustified assumptions
and mere misgivings that the judge acted with prejudice, passion, pride
and pettiness in the performance of his functions cannot overcome the
presumption that a judge shall decide on the merits of a case with an
unclouded vision of its facts.66

In the present case, Jimenez’ allegation of bias and prejudice is negated by

the CA finding in its amended decision, as affirmed by this Court, that
Judge Docena did not gravely abuse his discretion in granting the motion to
discharge. We support this conclusion as the cancellation of the September
29, 2011 hearing is not clearly indicative of bias and prejudice.

On the allegation that Judge Docena's uncontrollable temper and

unexplainable attitude should be considered as a factor, we note that the
allegations and perceptions of bias from the mere tenor and language of a
judge is insufficient to show prejudgment. Allowing inhibition for these
reasons would open the floodgates to abuse. Unless there is concrete
proof that a judge has a personal interest in the proceedings, and that his
bias stems from an extra-judicial source, the Court would uphold the
presumption that a magistrate shall impartially decide the merits of a
case.67

WHEREFORE, we DENY the petition in G.R. No. 209195 and affirm the CA's
amended decision in CA-G.R. SP No. 121167 insofar as it found no grave
abuse of discretion on the part of Judge Docena in granting the People's
motion to discharge Montero as a state witness.

We GRANT the petition in G.R. No. 209215 and modify the CA's amended
decision in CA-G.R. SP No. 121167 in accordance with our ruling that Judge
Docena's denial of the motion for inhibition was proper.

SO ORDERED.

Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 173008               February 22, 2012
NENITA GONZALES, SPOUSES GENEROSA GONZALES and RODOLFO
FERRER, SPOUSES FELIPE GONZALES and CAROLINA SANTIAGO, SPOUSES
LOLITA GONZALES and GERMOGENES GARLITOS, SPOUSES DOLORES
GONZALES and FRANCISCO COSTIN, SPOUSES CONCHITA GONZALES and
JONATHAN CLAVE, and SPOUSES BEATRIZ GONZALES and ROMY CORTES,
REPRESENTED BY THEIR ATTORNEY-IN-FACT and CO-PETITIONER NENITA
GONZALES, Petitioners,
vs.
MARIANO BUGAAY AND LUCY BUGAAY, SPOUSES ALICIA BUGAAY AND
FELIPE BARCELONA, CONEY "CONIE" BUGAAY, JOEY GATAN, LYDIA
BUGAAY, SPOUSES LUZVIMINDA BUGAAY AND REY PAGATPATAN AND
BELEN BUGAAY, Respondents.
DECISION
PERLAS-BERNABE, J.:
Assailed in this Petition for Review on Certiorari under Rule 45 is the
Decision1 of the Court of Appeals (CA) dated March 23, 2006 in CA-G.R. SP
No. 91381 as well as the Resolution 2 dated June 2, 2006 dismissing
petitioners' motion for reconsideration. The CA reversed and set aside the
assailed Orders3 of the Regional Trial Court (RTC) of Lingayen, Pangasinan,
Branch 39, dated April 13, 2005 and August 8, 2005, respectively, in Civil
Case No. 16815, denying the demurrer to evidence filed by herein
respondents and instead dismissed petitioners' complaint.
The Facts
The deceased spouses Bartolome Ayad and Marcelina Tejada ("Spouses
Ayad") had five (5) children: Enrico, Encarnacion, Consolacion, Maximiano
and Mariano. The latter, who was single, predeceased his parents on
December 4, 1943. Marcelina died in September 1950 followed by
Bartolome much later on February 17, 1964.
Enrico has remained single. Encarnacion died on April 8, 1966 and is
survived by her children, Nenita Gonzales, Generosa Gonzales, Felipe
Gonzales, Lolita Gonzales, Dolores Gonzales, Conchita Gonzales and Beatriz
Gonzales, the petitioners in this case. Consolacion, meanwhile, was
married to the late Imigdio Bugaay. Their children are Mariano Bugaay,
Alicia Bugaay, Amelita Bugaay, Rodolfo Bugaay, Letecia Bugaay, Lydia
Bugaay, Luzviminda Bugaay and Belen Bugaay, respondents herein.
Maximiano died single and without issue on August 20, 1986. The spouses
of petitioners, except Nenita, a widow, and those of the respondents,
except Lydia and Belen, were joined as parties in this case.
In their Amended Complaint4 for Partition and Annulment of Documents
with Damages dated February 5, 1991 against Enrico, Consolacion and the
respondents, petitioners alleged, inter alia, that the only surviving children
of the Spouses Ayad are Enrico and Consolacion, and that during the
Spouses Ayad's lifetime, they owned several agricultural as well as
residential properties.
Petitioners averred that in 1987, Enrico executed fraudulent documents
covering all the properties owned by the Spouses Ayad in favor of
Consolacion and respondents, completely disregarding their rights. Thus,
they prayed, among others, for the partition of the Spouses Ayad's estate,
the nullification of the documents executed by Enrico, and the award of
actual, moral and exemplary damages, as well as attorney's fees.
As affirmative defenses5 , Enrico, Consolacion and respondents claimed
that petitioners had long obtained their advance inheritance from the
estate of the Spouses Ayad, and that the properties sought to be
partitioned are now individually titled in respondents' names.
After due proceedings, the RTC rendered a Decision 6 dated November 24,
1995, awarding one-fourth (¼) pro-indiviso share of the estate each to
Enrico, Maximiano, Encarnacion and Consolacion as the heirs of the
Spouses Ayad, excluding Mariano who predeceased them. It likewise
declared the Deed of Extrajudicial Settlement and Partition executed by
Enrico and respondents, as well as all other documents and muniments of
title in their names, as null and void. It also directed the parties to submit a
project of partition within 30 days from finality of the Decision.
On December, 13, 1995,7 respondents filed a motion for reconsideration
and/or new trial from the said Decision. On November 7, 1996, the RTC,
through Judge Eugenio Ramos, issued an Order which reads: "in the event
that within a period of one (1) month from today, they have not yet settled
the case, it is understood that the motion for reconsideration and/or new
trial is submitted for resolution without any further hearing." 8
Without resolving the foregoing motion, the RTC, noting the failure of the
parties to submit a project of partition, issued a writ of execution 9 on
February 17, 2003 giving them a period of 15 days within which to submit
their nominees for commissioner, who will partition the subject estate.
Subsequently, the RTC, through then Acting Presiding Judge Emilio V.
Angeles, discovered the pendency of the motion for reconsideration
and/or new trial and set the same for hearing. In the Order 10 dated August
29, 2003, Judge Angeles granted respondents' motion for reconsideration
and/or new trial for the specific "purpose of receiving and offering for
admission the documents referred to by the [respondents]." 11
However, instead of presenting the documents adverted to, consisting of
the documents sought to be annulled, respondents demurred 12 to
petitioners' evidence on December 6, 2004 which the RTC, this time
through Presiding Judge Dionisio C. Sison, denied in the Order 13 dated April
13, 2005 as well as respondents' motion for reconsideration in the August
8, 2005 Order.14
Aggrieved, respondents elevated their case to the CA through a petition for
certiorari, imputing grave abuse of discretion on the part of the RTC in
denying their demurrer notwithstanding petitioners' failure to present the
documents sought to be annulled. On March 23, 2006, the CA rendered
the assailed Decision reversing and setting aside the Orders of the RTC
disposing as follows:
"WHEREFORE, the instant petition is hereby GRANTED. Accordingly, the
assailed Orders of the trial court dated April 13, 2006 and August 8, 2005
are hereby both SET ASIDE and in lieu thereof, another Order is hereby
issued DISMISSING the Complaint, as amended.
No pronouncement as to costs.
SO ORDERED."15
In dismissing the Amended Complaint, the appellate court ratiocinated in
the following manner:
"In the light of the foregoing where no sufficient evidence was presented
to grant the reliefs being prayed for in the complaint, more particularly the
absence of the documents sought to be annulled as well as the properties
sought to be partitioned, common sense dictates that the case should have
been dismissed outright by the trial court to avoid unnecessary waste of
time, money and efforts."16
Subsequently, the CA denied petitioners' motion for reconsideration in its
Resolution17 dated June 2, 2006.
The Issues
In this petition for review, petitioners question whether the CA's dismissal
of the Amended Complaint was in accordance with law, rules of procedure
and jurisprudence.
The Ruling of the Court
The RTC Orders assailed before the CA basically involved the propriety of
filing a demurrer to evidence after a Decision had been rendered in the
case.
Section 1, Rule 33 of the Rules of Court provides:
"SECTION 1. Demurrer to evidence. - After the plaintiff has completed the
presentation of his evidence, the defendant may move for dismissal on the
ground that upon the facts and the law the plaintiff has shown no right to
relief. If his motion is denied, he shall have the right to present evidence. If
the motion is granted but on appeal the order of dismissal was reversed he
shall be deemed to have waived the right to present evidence."
In this case, respondents demurred to petitioners' evidence after the RTC
promulgated its Decision.1âwphi1 While respondents' motion for
reconsideration and/or new trial was granted, it was for the sole purpose
of receiving and offering for admission the documents not presented at the
trial. As respondents never complied with the directive but instead filed a
demurrer to evidence, their motion should be deemed abandoned.
Consequently, the RTC's original Decision stands.
Accordingly, the CA committed reversible error in granting the demurrer
and dismissing the Amended Complaint a quo for insufficiency of evidence.
The demurrer to evidence was clearly no longer an available remedy to
respondents and should not have been granted, as the RTC had correctly
done.
WHEREFORE, the petition is GRANTED. The assailed Decision and
Resolution of the CA are SET ASIDE and the Orders of the RTC denying
respondents' demurrer are REINSTATED. The Decision of the RTC dated
November 24, 1995 STANDS.

The Court has previously explained the nature of a demurrer to evidence in SO ORDERED.
the case of Celino v. Heirs of Alejo and Teresa Santiago 18 as follows:

"A demurrer to evidence is a motion to dismiss on the ground of

insufficiency of evidence and is presented after the plaintiff rests his case.
It is an objection by one of the parties in an action, to the effect that the
evidence which his adversary produced is insufficient in point of law,
whether true or not, to make out a case or sustain the issue. The evidence
contemplated by the rule on demurrer is that which pertains to the merits
of the case."

In passing upon the sufficiency of the evidence raised in a demurrer, the

court is merely required to ascertain whether there is competent or
sufficient proof to sustain the judgment. 19 Being considered a motion to
dismiss, thus, a demurrer to evidence must clearly be filed before the court
renders its judgment.
 The Facts and the Case

The Office of the Ombudsman charged the accused public officers Antonio
Y. de Jesus, Sr. (De Jesus, Sr.), Mayor of Anahawan, Southern Leyte,
Anatolio A. Ang (Ang), his Vice-Mayor, and Martina S. Apigo (Apigo), the
Treasurer, of falsification of public document before the Sandiganbayan in
Criminal Case 26764 and all three, along with Antonio de Jesus, Jr. (De
Jesus, Jr.), the mayor’s son, of violation of Republic Act (R.A.) 3019 before
the same court in Criminal Case 26766.1

The first information alleged that De Jesus, Sr., Ang, and Apigo (accused
local officials) falsified the Requests for Quotation and Abstract of Proposal
of Canvass on January 18, 1994 by making it appear that Cuad Lumber and
Hinundayan Lumber submitted quotations for the supply of coco lumber,
when they did not in fact do so, in violation of Article 171 of the Revised
Penal Code.2 The second information alleges that, taking advantage of their
positions, the three municipal officers gave unwarranted advantage to De
Jesus, Jr., who operated under the name Anahawan Coco Lumber Supply,
by awarding to him the supply of coco lumber worth ₱16,767.00. 3

On April 12, 2005, after the prosecution rested its case, all three accused
Republic of the Philippines filed a motion for leave to file demurrer to evidence, which motion the
SUPREME COURT Sandiganbayan denied. Rather than present evidence, however, they
Manila proceeded to file their demurrer, in effect waiving their right to present
SECOND DIVISION evidence.4 The prosecution opposed the demurrer.
G.R. Nos. 182539-40               February 21, 2011
ANTONIO Y. DE JESUS, SR., ANATOLIO A. ANG and MARTINA S. On March 7, 2007 the Sandiganbayan rendered judgment, convicting the
APIGO, Petitioners, accused local officials of the crimes charged. It, however, acquitted
vs. accused De Jesus, Jr.5 Upon denial of their motion for reconsideration in a
SANDIGANBAYAN-FOURTH DIVISION and PEOPLE OF THE Resolution dated April 16, 2008, the accused public officers came to this
PHILIPPINES, Respondents. Court on petition for review.6
DECISION
ABAD, J.: The Issues Presented

These are criminal cases involving a simulated bidding/canvassing in favor The petition presents four issues:
of the municipal mayor’s son.
 1. Whether or not the Sandiganbayan erred in finding the accused
local officials guilty of the two crimes charged when these
referred to only one transaction;
2. Whether or not the Sandiganbayan erred in denying the
accused local officials the opportunity to present their defense
after it denied their demurrer to evidence;
3. Whether or not the Sandiganbayan erred in finding that the
accused local officials falsified the pertinent Requests for
Quotation and Abstract of Proposal of Canvass when they made it
appear that Cuad Lumber and Hinundayan Lumber submitted
quotations for the supply of coco lumber, when they did not in
fact do so, in violation of Article 171 of the Revised Penal Code;
4. Whether or not the Sandiganbayan erred in finding that the
accused local officials, taking advantage of their positions, gave
unwarranted advantage to De Jesus, Jr. by awarding to him the
supply of coco lumber worth ₱16,767.00 to the detriment of the
municipality.
Rulings of the Court
The accused municipal mayor, vice-mayor, and treasurer point out that,
since the two charges involved only one transaction, the Sandiganbayan
made a mistake in finding them guilty of both. But, as the Sandiganbayan
and the prosecution point out, Section 3 of R.A. 3019 expressly allows the
filing of the two charges based on one transaction. Section 3 provides that
the crimes described in it are "in addition to acts or omissions of public
officials already penalized by existing laws."
The accused local officials assail the Sandiganbayan’s refusal to allow them
to present evidence of their defense after it denied their demurrer to
evidence. But, contrary to their claim, the Sandiganbayan did not grant
these officials leave to file their demurrer. It in fact denied them that leave
without prejudice, however, to their nonetheless filing one subject to the
usual risk of denial. Based on the Minutes of the Hearing on May 4,
2005,7 the Sandiganbayan resolved as follows:
The defense’s Motion for Leave of Court to File Demurrer to Evidence
dated April 12, 2005 is DENIED, without prejudice, however, to its right to
file such demurrer to evidence, without prior leave of court, but subject to
the legal consequences stated in Section 23, Rule 119 of the 2000 Rules on
Criminal Procedure.
WHEREFORE, the defense is hereby given a non-extendible period of ten
(10) days from notice within which to file, if it so desires, a demurrer to
evidence without prior leave of court. Should this Court fail to hear from
the defense within the said period, it shall be understood to mean that the
defense will forego the filing of the demurrer to evidence and will
forthwith proceed with the presentation of its evidence on May 23, 2005
at 8:30 a.m. and 2:00 p.m. at the Palace of Justice, Cebu City, as previously
scheduled.
On receipt of the above, the accused local officials informed the court that
they would file a demurrer to evidence even without leave of court. 8 The
Sandiganbayan acknowledged the defense’s manifestation and ordered
the prosecution to comment on or oppose it.9
Having denied the accused local officials’ demurrer to evidence, the
Sandiganbayan was justified in likewise denying their motion to be allowed
to present evidence in their defense. The 2000 Rules on Criminal
Procedure, particularly Section 23, Rule 119, provide:
Section 23. Demurrer to evidence. — x x x
If the court denies the demurrer to evidence filed with leave of court, the
accused may adduce evidence in his defense. When the demurrer to
evidence is filed without leave of court, the accused waives the right to
present evidence and submits the case for judgment on the basis of the
evidence for the prosecution.
The accused local officials contend that the prosecution failed to prove
conspiracy among them. The Sandiganbayan itself, they say, did not
believe prosecution witness Maria Fe Lakilak’s testimony that she saw Ang
and Apigo sign the Requests for Quotation for Hinundayan Lumber and
Cuad Lumber.
But the prosecution is not required to prove conspiracy by evidence that
the three local officials sat down and came to an agreement to commit the
crimes of which they were charged. Such conspiracy may be proved by a
number of circumstances from which one may infer that the accused were
animated by a common criminal purpose.10
Here, the accused municipal treasurer certified by her signature that a
canvass of suppliers was undertaken and that their quotations on the
Requests for Quotations were correct. This obviously did not take place
since the document lacked the required signatures of two supposed
bidders. Besides, the Cuad Lumber’s owner testified that he took no part in
the canvass and that his business name was Cuad General Merchandise
and not Cuad Lumber as stated in the Requests. During pre-trial the
defense admitted that the accused local officials signed the Requests for
Quotation and the Abstract of Proposal of Canvass despite the absence of
bidders’ signatures.11 The accused local officials acted in concert.
The Court also finds their signing in two capacities unusual or irregular.
Normally, the roles of witnesses are performed by subordinates since
superior officers assume the job of assessing the correctness of the
transaction. This circumstance is suspicious and supports the belief that
the accused local officials conspired to falsify the documents to favor the
mayor’s son.
Further the Court notes that the Purchase Request 12 did not bear the
signature of the local auditor, whose task is to examine or inspect
transactions, accounts, or books to prevent irregular government
expenditures. Additionally, the accused municipal mayor signed the
document as "Head of Department/Office" that executed the purchase
request in connection with the repair of the municipal building. His signing
as such is irregular since it is normally the proper subordinate official in
charge of procurement for building repair, the municipal engineer, who
signs the same. This circumstance strengthens the Court’s belief that the
accused local officials limited the signatories among themselves to prevent
discovery of the illicit purchase.
The accused local officials point out, citing Arias v. Sandiganbayan, 13 that
"heads of offices have to rely to a reasonable extent on their subordinates
and on the good faith of those who prepare bids, purchase supplies, or
enter into negotiations." But the documents and other circumstances of
these cases negate reliance on the competence and good faith of
subordinates. First, the accused local officials knew or could have known
that the winning supplier was the accused mayor’s son. Second, the
accused local officials signed the documents both in their official capacities
and as witnesses evidently to avoid, as stated above, exposing the deal to
other eyes. And third, the rejected suppliers did not sign the quotations
they supposedly submitted. Indeed, the space for their signatures was just
above the space where the accused local officials signed. 14
The accused local officials seek rejection of the relevant documents
presented in court on the ground that these were mere certified copies
that were inadmissible under the best evidence rule. But the prosecution
established by testimony that the original documents could no longer be
found, paving the way for the introduction of secondary evidence. Indeed,
the accused themselves adopted these documents as common exhibits.
The accused local officials also argue that, since what were involved were
emergency purchases, canvassing could be dispensed with. But, although
Section 366 of the Local Government Code authorized such kind of
purchases, here the documents show on their faces that there was actual
resort to canvassing. Indeed, the documents do not recite the supposed
circumstances that render the procurement an urgent one that under
Section 368 did not require bidding or canvassing.lavvphi1
Accused local officials point out that, since the resident auditor did not
detect any anomaly in the transaction, they could not be held liable on
account of it.15 But an adverse audit finding by the resident auditor is not a
requisite for prosecution for graft. The offense could be proved sans an
auditor’s report.
The accused local officials also contend that, although the coco lumber the
municipality bought in this case was pricier, it was sturdier being of the
best kind. They doubt if Cuad Lumber’s products had the same
quality.16 But this argument is based on pure conjecture since Cuad Lumber
did not submit a quotation for its products nor did it mention the quality of
its inventory.
The Court upholds the Sandiganbayan’s conclusion that the accused local
officials went along with the evidently falsified quotation documents to
favor De Jesus, Jr., the mayor’s son. This renders such officials guilty of
violation of R.A. 3019.
WHEREFORE, the Court DENIES the petition and AFFIRMS the
Sandiganbayan Decision promulgated on March 7, 2007 and its Resolution
dated April 16, 2008.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 189365               October 12, 2011
HON. JUDGE JESUS B. MUPAS, Presiding Judge, Regional Trial Court,
Branch 112 and CARMELITA F. ZAFRA, Chief Administrative Officer,
DSWD, Petitioners,
vs.
PEOPLE OF THE PHILIPPINES, thru its duly authorized representative, the
Legal Service of the DSWD, Quezon City and the Office of the Solicitor
General, Respondents.
DECISION
SERENO, J.:
In this Petition for Review on Certiorari under Rule 45, private petitioner
seeks the reversal of the Decision 1 dated 19 March 2009 issued by the
Court of Appeals (CA) in CA-G.R. SP No. 105199. The CA Decision reversed
and set aside the Orders2 dated 19 December 2007 and 2 June 2008 of the
Regional Trial Court of Pasay City (Branch 112), granting her demurrer to
evidence in Criminal Case Nos. 02-0371 and 02-0372. Private petitioner
also assails the CA Resolution dated 28 August 2009, denying her Motion
for Reconsideration.
As the records and the CA found, private petitioner Carmelita F. Zafra
(petitioner Zafra) was Supply Officer V 3 of the Department of Social
Welfare and Development (DSWD). On 14 November 1998, she arranged
for the withdrawal for replacement, of two hundred (200) cartons of Bear
Brand Powdered Milk that were nearing their expiry date. She made the
arrangement for their withdrawal through DSWD personnel Marcelina
Beltran, Administrative Officer III; and Manuelito Roga, Laborer 1. 4
Petitioner Zafra instructed Marcelina Beltran to have someone from the
DSWD Property Division withdraw the 200 cartons of milk from the DSWD-
Villamor Airbase Relief Operation Center (DSWD-VABROC) on 14
November 1998. Beltran relayed this instruction to Roga. On the appointed
date, however, no one from the Property Division arrived to pick up the
milk cases. Instead, three unidentified persons on board a four-wheeler
truck came and hauled the 200 cases of milk. One of the three persons
who came to pick up the milk cases at the DSWD-VABROC premises
introduced herself as Ofelia Saclayan to Roga, the only DSWD employee
present at that time.5 Saclayan turns out to be the sister of Zafra. The 200
cases of milk withdrawn by Saclayan and her unidentified companions
were valued at three hundred six thousand seven hundred thirty-six pesos
(₱306,736).6
An internal investigation was conducted by the DSWD on the persons
involved in the loss of the milk cases. On 06 August 1999, the investigating
committee of the DSWD issued a Memorandum 7 entitled "Report and
Recommendation on the Loss of the Two Hundred (200) Cases of Bear
Brand Powdered Milk from DSWD-VABROC." In brief, the committee report
dismissed petitioner Zafra and her co-employees Beltran and Roga, whom
they implicated in the loss of the milk cases. The committee found
substantial evidence to hold petitioner Zafra guilty of dishonesty and
"negligence of duty."8
The report of the DSWD investigating committee finding petitioner Zafra
and her co-employee Beltran guilty of dishonesty and negligence of duty
was appealed to the Civil Service Commission (Commission). On 03
December 1999, the Commission promulgated Resolution No.
992652,9 which slightly modified the findings of the committee. The
Resolution, while absolving petitioner Zafra of the charge of dishonesty,
found her guilty of simple neglect as follows:
The Commission has noted, however, that Zafra is not that entirely
innocent. For the records disclose that it was she who made
representation with the MEGA Commercial, the supplier of said milk, to
withdraw and replace those cases of milk that are nearing their expiry
dates. Surprisingly, however, after November 14, 1998, when the 200 milk
cases of milk were actually withdrawn from VABROC she never made any
contact with MEGA Commercial as to what further steps to take on the
case, such as to retrieve the loss thereof and have these replaced by the
company. Neither did she make any further inquiry as to the condition of
milk from VABROC. This unnatural inaction or callousness displayed by
Zafra and her utter apathy in the performance of her official functions calls
for the imposition of sanctions on her.
x x x           x x x          x x x
Being both government employees, Zafra and Beltran are required to
perform their duties and functions with the highest degree of
responsibility, integrity, loyalty and efficiency. And since both of them
failed on this score, they must suffer the consequences of their negligence.
WHEREFORE, the respective appeals of Carmelita F. Zafra and Marcelina
M. Beltran are hereby dismissed for want of merit. They are however,
found guilty only of simple Neglect of Duty for which they are each
imposed the penalty of six (6) months suspension without pay. The
appealed decision is thus modified accordingly.
Quezon City, December 03, 1999.10
On 15 February 2002, the Ombudsman filed two Informations with the
Regional Trial Court of Pasay (RTC-Pasay) against petitioner Zafra, Beltran
and Roga, docketed as Criminal Case Nos. 02-0371 and 02-0372.
Under Criminal Case No. 02-0371, petitioner Zafra and her co-accused
Beltran and Roga were charged with violating Section 3 (e) of Republic Act
No. 3019 (R.A. 3019), otherwise known as the "Anti-Graft and Corrupt
Practices Act." The Information filed in this case reads:
The undersigned Prosecutor, Office of the Ombudsman hereby accuses
Marcelina M. Beltran, Carmelita Zafra, Manuelito T. Roga and Ofelia
Saclayan for Violation of Section 3 (e) of RA 3019, as amended, committed
as follows:
That on or about 13 November 1998, or for sometime, prior, or
subsequent thereto, in Pasay City, and within the jurisdiction of this
Honorable Court, accused Marcelina M. Beltran, Carmelita F. Zafra,
Carmelito T. Roga (sic), Administrative Officer III, Supply Officer V, and
Laborer I, respectively of the Department of Social Welfare and
Development, while in the performance of their official duties, and in
connivance with Ofelia Saclayan, a private respondent, with evident bad
faith, did then and there, wilfully, unlawfully, and criminally, cause damage
or undue injury to the government, particularly the Department of Social
Welfare and Development in the amount of Php 306,736.00, by making it
appear that the 200 cases of Bear Brand Powdered Milk stocked at the
DSWD Villamor Airbase Relief Operation Center (DSWD-VABROC) are
about to expire and need to be changed, and thereafter, without
complying with the standard operating procedure in withdrawing goods
from the bodega, did then and there arrange for the immediate
withdrawal of the subject goods on the next day which was a Saturday, a
non-working day, and appropriate the said goods for themselves.
CONTRARY TO LAW.11
Petitioner Zafra, Beltran and Roga were charged with malversation under
Article 217 of the Revised Penal Code in Criminal Case No. 02-0372. The
Information reads:
The undersigned Ombudsman Prosecutor, Office of the Ombudsman
hereby accuses Carmelita Zafra, Marcelina M. Beltran Manuelito T. Roga
and Ofelia Saclayan for Malversation under Article 217 of the Revised
Penal Code, as amended, committed as follows:
That on or about 13 November 1998, or for sometime prior, or subsequent
thereto, in Pasay City, and within the jurisdiction of this Honorable Court,
accused Marcelina M. Beltran, Administrative Officer III of the Department
of Social Welfare and Development, Villamor Airbase Relief Operation
Center (DSWD-VABROC), an accountable public officer by virtue of her
being the custodian of the goods inside the DSWD-VABROC bodega, in
connivance with Carmelita F. Zafra, and Manuelito T. Roga, Supply Officer
IV and Laborer I, respectively of the Department of Social Welfare and
Development and with the indispensable cooperation of Ofelia T. Saclayan,
a private respondent, did then and there, wilfully, unlawfully, and
feloniously, cause the unauthorized withdrawal of the 200 cases of Bear
Brand Powdered Milk, a public property owned by the DSWD stock[ed] at
VABROC, and thereafter, did then and there appropriate the said goods for
themselves to the prejudice of the DSWD in the amount of Php
306,736.00.
CONTRARY TO LAW.12
The cases against petitioner Zafra and her co-accused were raffled to
Branch 112 of RTC-Pasay. Upon arraignment, they pleaded "not guilty" to
the charges.
On 06 August 2003, the pretrial of the case was conducted, attended by
only petitioner Zafra and Beltran. 13 Thereafter, a joint trial for Criminal
Case Nos. 02-0371 and 02-0372 ensued.
During the trial on the merits, the prosecution presented four witnesses to
build up its case. The prosecution presented Consolacion Obrique dela
Cruz, a utility worker at the DSWD Property and Supply; Atty. Nelson
Todas, former DSWD Legal Officer V; Ruby Maligo Cresencio, the
operations officer of Mega Commercial Trading, which supplied the stolen
milk cases to DSWD; and Isidro Tuastumban, a security guard posted at the
DSWD lobby at the time the incident happened.
After the prosecution rested its case, petitioner Zafra filed a Motion for
Demurrer to Evidence.14 She alleged therein that the prosecution failed to
present proof that she and her co-accused had wilfully, unlawfully, and
feloniously caused the withdrawal of the 200 cases of Bear Brand
Powdered Milk and appropriated these for themselves to the prejudice of
DSWD. Thus, she concluded that the prosecution failed to establish the
elements of the crime of malversation under Art. 217 of the Revised Penal
Code. She likewise contended that the prosecution was not able to present
proof that she and her co-accused had done so in violation of Section 3 (e)
of R. A. 3019.
The lower court required the prosecution to comment on petitioner Zafra’s
demurrer to evidence. In its Comment,15 the prosecution contradicted the
allegations therein and claimed to have established and proved the
elements of the crimes as charged against petitioner and her co-accused. It
also alleged that it was able to establish conspiracy among the accused and
had evidence to show that petitioner Zafra caused the withdrawal of the
goods, subject matter of this case, through her sister -- co-accused Ofelia
Saclayan, who was an unauthorized person.
On 19 December 2007, public respondent Judge Mupas issued an
Order16 granting the demurrer to evidence of petitioner Zafra. Public
respondent ruled that, after evaluating the testimonies of the witnesses
for the prosecution, he found them substantially insufficient to warrant the
conviction of petitioner Zafra under the charges filed against her by the
Ombudsman. With the grant of her demurrer to evidence, petitioner was
acquitted. 17 The decretal portion of the Order reads:
WHEREFORE, the demurrer to evidence is GRANTED.
Consequently, accused CARMELITA ZAFRA y FUENTES is hereby
ACQUITTED.
SO ORDERED.
On 28 January 2008, the prosecution, through its private prosecutor, filed a
Motion for Reconsideration of the Order dated 19 December 2007 issued
by public respondent. On 2 June 2008, the motion was denied for lack of
merit.18
On 09 September 2008, the People filed with the CA a Petition for
Certiorari under Rule 65, assailing the lower court’s grant of petitioner
Zafra’s demurrer to evidence, resulting in her acquittal. 19 The petition, filed
through the DSWD, which was represented by its legal officers, raised the
following issues:
Whether or not the Honorable Judge committed grave abuse of discretion
in denying petitioner’s Motion for Reconsideration of its Order granting
private respondent’s demurrer to evidence;
Whether or not the Honorable Judge committed grave abuse of discretion
when he failed to appreciate the evidence of the prosecution providing
beyond reasonable doubt private respondent’s negligence which resulted
to (sic) the unauthorized withdrawal of the 200 cases of Bear Brand
Powdered Milk at the VABROC belonging to the government. 20
The People’s Petition for Certiorari was docketed as CA-G.R. SP No. 105199
and was raffled to the appellate court’s Special Sixth Division. On 22
September 2008, a Resolution21 was promulgated, directing petitioner
Zafra to file a Comment on the certiorari petition and thereafter instructing
the Office of the Solicitor General to file a Reply thereto.
On 06 October 2008, petitioner Zafra, as private respondent in the appeal,
filed her Comment and sought to dismiss the Petition for Certiorari
instituted by the prosecution.22 In her Comment, she assailed the appeal of
the DSWD for being improper, having been filed directly with the appellate
court instead of seeking the intervention of the Office of the Solicitor
General (OSG) to act on DSWD’s behalf. She also pointed out the lack of
authority of the signatory who had executed the certificate of non-forum
shopping attached to the petition.
On 06 November 2008, the OSG filed a Manifestation and
Motion23 adopting the Petition for Certiorari filed by the DSWD. It prayed
for the relaxation of the Rules on Procedure pertaining to the authority of
the person signing the Verification and Certification against forum-
shopping attached to the petition filed by the DSWD.
On 19 November 2008, petitioner Zafra filed a Comment/Opposition 24 to
the OSG’s Manifestation and Motion and moved that it be expunged from
the records, as it was filed out of time.
On 23 January 2009, the CA, through its Fourth Division, issued a
Resolution25 granting the OSG’s Manifestation and Motion.
On 19 March 2009, the appellate court, through its Third Division,
promulgated a Decision26 granting the People’s petition and revoking and
setting aside the lower court’s Order granting private respondent’s
demurrer to evidence. In its Decision reversing the trial court’s Order, the
CA found that public respondent Judge Mupas committed grave abuse of
discretion through his grant of private respondent’s demurrer, which
consequently resulted in her acquittal. Holding that the prosecution was
able to present sufficient evidence to prove the elements of the crimes in
the Information filed against private respondent, the appellate court ruled
as follows:
A careful reading of the 19 December 2007 Order, supra, showed that the
court a quo in granting the Respondent’s demurrer to evidence relied
heavily on the ground that the Petitioner miserably failed to show that the
Respondent had any direct participation in the actual withdrawal of the
goods. This may be gleaned from the pertinent portion of the 19 December
2007 Order, supra, to wit:
xxx There is no denying that the prosecution, after presenting all its
witnesses and documentary evidence has miserably failed to prove the
guilt of the accused Carmelita Zafra beyond reasonable doubt. The
prosecution has never proven any direct participation of the herein
accused to the actual withdrawal of the goods. The prosecution witnesses
presented testified during cross-examination that they have no personal
knowledge nor did they see that the accused Carmelita Zafra actually
withdraw (sic) or cause[d] the withdrawal of the goods from VABROC. The
prosecution proved the relationship between Carmelita Zafra and a Ofelia
Saclayan, the fact that Carmelita Zafra coordinated with the prosecution
witness Ruby Crescencio for the return of the 200 cases of Bear Brand
Powdered Milk which were alleged to be near expiry but it did not proved
(sic) that on the day when the goods were withdrawn from VABROC[,]
accused Carmelita Zafra had a direct participation for its withdrawal.
x x x           x x x          x x x
It bears to emphasize that the crime of malversation may be committed
either through a positive act of misappropriation of public funds or
property or passively through negligence by allowing another to commit
such misappropriation. Thus, the Petitioner’s alleged failure to prove the
Respondent’s direct participation in the withdrawal of the 200 cases of
milk did not altogether rule out malversation as the dolo or culpa in
malversation is only a modality in the perpetration of the felony.
Besides, even if the Information in Criminal Case No. 02-0372, supra,
alleges willful malversation, this does not preclude conviction of
malversation through negligence if the evidence sustains malversation
through negligence. On this score, let US refer to the explicit
pronouncement of the Supreme Court in People v. Uy, Jr., thus:
xxx Even when the information charges willful malversation, conviction for
malversation through negligence may still be adjudged if the evidence
ultimately proves that mode of commission of the offense.
Likewise, We find that the court a quo committed grave abuse of discretion
in acquitting the Respondent for violation of Section 3(e) of RA 3019 ...
x x x           x x x          x x x
As earlier discussed, the court a quo acquitted the Respondent of the
offense charged mainly because of the alleged lack of any proof of her
direct participation in the withdrawal of the 200 cases of Bear Brand
powdered milk. However, in view of the People’s evidence showing
Respondent’s inexcusable negligence in the withdrawal of the goods in
question, Respondent cannot likewise be acquitted of violation of Section
3(e) of RA 3019 since inexcusable negligence is one of the elements of the
said offense.
In sum, We hold that the court a quo committed grave abuse of discretion
in granting the Respondent’s demurrer to evidence, which resulted to her
untimely acquittal.
WHEREFORE, instant Petition is hereby GRANTED. The court a quo’s
challenged Orders are REVOKED and SET ASIDE. The case is hereby
REMANDED to the court a quo for further proceedings.
SO ORDERED.27
Petitioner Zafra filed a Motion for Reconsideration 28 dated 31 March 2009
praying that the 19 March 2009 Decision of the CA reversing the lower
court’s grant of her demurrer to evidence be set aside. She further prayed
that the criminal cases filed against her be dismissed with prejudice.
On 09 June 2009, the OSG filed its Comment 29 on the Motion for
Reconsideration of petitioner Zafra. It moved for the denial of her Motion
for Reconsideration and prayed that the assailed Decision of the Court of
Appeals in CA-G.R. SP No. 105199 be affirmed.
The CA, through its former Third Division, issued a Resolution 30 on 28
August 2009 denying petitioner’s Motion for Reconsideration. The
appellate court found that the issues she raised had been sufficiently
considered and discussed in its 19 March 2009 Decision.
On 19 October 2009, petitioner Zafra filed her Petition for Review on
Certiorari31 under Rule 45 of the Rules on Civil Procedure. She assailed the
19 March 2009 Decision of the Court of Appeals in CA-G.R. SP No. 105199,
as well as the 28 August 2009 Resolution denying her Motion for aside by an appellate court in an original special civil action via certiorari,
Reconsideration. the right of the accused against double jeopardy is not violated. 35

We AFFIRM the entire ruling of the Court of Appeals.
After a thorough review of the records of this case, particularly the issues
proffered by petitioner, we adopt the findings of the appellate court. We
find no reversible error in the ruling which is eloquently supported by
existing jurisprudence.32
We agree with the CA’s disquisition that the lower court’s grant of the
demurrer to evidence of petitioner Zafra was attended by grave abuse of
discretion. The prosecution’s evidence was, prima facie, sufficient to prove
the criminal charges filed against her for her inexcusable negligence,
subject to the defense that she may present in the course of a full-blown
trial. The lower court improperly examined the prosecution’s evidence in
the light of only one mode of committing the crimes charged; that is,
through positive acts. The appellate court correctly concluded that the
crime of malversation may be committed either through a positive act of
misappropriation of public funds or passively through negligence by
allowing another to commit such misappropriation.33
In the instant case, having affirmed the CA finding grave abuse of
discretion on the part of the trial court when it granted the accused’s
demurrer to evidence, we deem its consequent order of acquittal
void.1avvphi1
Further, we do not find any pronouncement by the trial court on whether
the act or omission of petitioner under the circumstances would entail civil
liability. Therefore, the CA properly ordered the remand of the case to the
lower court for further proceedings to determine whether petitioner is
civilly liable for the loss of the milk cartons.
WHEREFORE, we DENY the Petition and affirm in toto the 19 March 2009
Decision of the Court of Appeals and its 28 August 2009 Resolution. Let the
name of Judge Jesus B. Mupas be stricken off as petitioner, as such
appellation unilaterally made by petitioner Carmelita F. Zafra, is improper.
SO ORDERED.

As a general rule, an order granting the accused’s demurrer to evidence

amounts to an acquittal. There are certain exceptions, however, as when
the grant thereof would not violate the constitutional proscription on
double jeopardy. For instance, this Court ruled that when there is a finding
that there was grave abuse of discretion on the part of the trial court in
dismissing a criminal case by granting the accused’s demurrer to evidence,
its judgment is considered void, as this Court ruled in People v. Laguio, Jr.: 34

By this time, it is settled that the appellate court may review dismissal
orders of trial courts granting an accused’s demurrer to evidence. This may
be done via the special civil action of certiorari under Rule 65 based on the
ground of grave abuse of discretion, amounting to lack or excess of
jurisdiction. Such dismissal order, being considered void judgment, does
not result in jeopardy. Thus, when the order of dismissal is annulled or set
 Before the Court is the petition for review on certiorari seeking to set aside
the Decision1

elated May 19, 2009 and Resolution2 dated September 28, 2009 of the
Court of Appeals (CA), in CA-G.R. SP No. 104885, entitled Sharon G.
Cuneta-Pangilinan v. lion. Rizalina T Capco-Urnali, in her capacity as
Presiding Judge of the Regional Trial Court in Mandaluyong City, Branch
212, Lito Bautista, and Jimmy Alcantara, which granted the

petition for certiorari of respondent Sharon G. Cuneta-Pangilinan. TheCA

Decision reversed and set aside the Order 3 dated April 25, 2008 of the
Regional Trial Court (RTC), Branch 212, Mandaluyong City, but only insofar
as it pertains to the granting of the Demurrer to Evidence filed by
petitioners Lito Bautista (Bautista) and Jimmy Alcantara (Alcantara), and
also ordered that the case be remanded to the trial court for reception of
petitioners' evidence.

The antecedents are as follows:

On February 19, 2002, the Office of the City Prosecutor of Mandaluyong

City filed two (2) informations, both dated February 4, 2002, with the RTC,
Branch 212, Mandaluyong City, against Pete G. Ampoloquio, Jr.
(Ampoloquio), and petitioners Bautista and Alcantara, for the crime of
libel, committed by publishing defamatory articles against respondent
Sharon Cuneta-Pangilinan in the tabloid Bandera.

In Criminal Case No. MC02-4872, the Information dated February 4, 2002

Republic of the Philippines reads:
SUPREME COURT
Manila That on or about the 24th day of April, 2001, in the City of Mandaluyong,
THIRD DIVISION Philippines and within the jurisdiction of this Honorable Court, the above-
G.R. No. 189754               October 24, 2012 named accused, conspiring and confederating together with Jane/John
LITO BAUTISTA and JIMMY ALCANTARA, Petitioners, Does unknown directors/officer[s] of Bandera Publishing Corporation,
vs. publisher of Bandera, whose true identities are unknown, and mutually
SHARON G. CUNETA-PANGILINAN, Respondent. helping and aiding one another, with deliberate intent to bring SHARON G.
DECISION CUNETA-PANGILINAN into public dishonor, shame and contempt, did then
PERALTA, J.: and there wilfully, unlawfully and feloniously, and with malice and ridicule,
cause to publish in Bandera (tabloid), with circulation in Metro Manila,
which among others have the following insulting and slanderous remarks,
to wit:
MAGTIGIL KA, SHARON!
Sharon Cuneta, the mega-taba singer-actress, I’d like to believe, is really
brain-dead. Mukhang totoo yata yung sinasabi ng kaibigan ni Pettizou
Tayag na ganyan siya.
Hayan at buong ingat na sinulat namin yung interview sa kaibigan ng may-
ari ng Central Institute of Technology at ni isang side comment ay wala
kaming ginawa and all throughout the article, we’ve maintained our
objectivity, pero sa interview sa aparadoric singer- actress in connection
with an album launching, ay buong ningning na sinabi nitong she’s
supposedly looking into the item that we’ve written and most probably
would take some legal action.
xxx
Magsalita ka, Missed Cuneta, at sabihin mong hindi ito totoo.
Ang hindi lang namin nagustuhan ay ang pagbintangan kaming palagi
naman daw namin siyang
sinisiraan, kaya hindi lang daw niya kami pinapansin, believing na part raw
siguro yun ng aming trabaho.
Dios mio perdon, what she gets to see are those purportedly biting
commentaries about her katabaan and kaplastikan but she has simply
refused to acknowledge the good reviews we’ve done on her.
xxx
Going back to this seemingly disoriented actress who’s desperately trying
to sing even if she truly can’t, itanggi mo na hindi mo kilala si Pettizou
Tayag gayung nagkasama raw kayo ng tatlong araw sa mother's house ng
mga Aboitiz sa Cebu more than a month ago, in connection with one of
those political campaigns of your husband.
xxx
thereby casting publicly upon complainant, malicious contemptuous
imputations of a vice, condition or defect, which tend to cause
complainant her dishonor, discredit or contempt.
CONTRARY TO LAW.4
In Criminal Case No. MC02-4875, the Information dated February 4, 2002
reads:
That on or about the 27th day of March, 2001, in the City of Mandaluyong,
Philippines and within the jurisdiction of this Honorable Court, the above-
named accused, conspiring and confederating together with Jane/John
Does unknown directors/officers of Bandera Publishing Corporation,
publisher of Bandera, whose true identities are unknown, and mutually
helping, and aiding one another, with deliberate intent to bring SHARON G.
CUNETA-PANGILINAN into public dishonor, shame and contempt did, then
and there wilfully, unlawfully and feloniously, and with malice and ridicule,
cause to publish in Bandera (tabloid), with circulation in Metro Manila,
which, among others, have the following insulting and slanderous remarks,
to wit:
NABURYONG SA KAPLASTIKAN NI SHARON ANG MILYONARYANG
SUPPORTER NI KIKO!
FREAKOUT pala kay Sharon Cuneta ang isa sa mga loyal supporters ni Kiko
Pangilinan na si Pettizou Tayag, a multi-millionaire who owns Central
Institute of Technology College in Sampaloc, Manila (it is also one of the
biggest schools in Paniqui, Tarlac).
xxx
Which in a way, she did. Bagama't busy siya (she was having a meeting
with some business associates), she went out of her way to give Sharon
security.
So, ang ginawa daw ni Ms. Tayag ay tinext nito si Sharon para mabigyan ito
ng instructions para kumportable itong makarating sa Bulacan.
She was most caring and solicitous, pero tipong na-offend daw ang
megastar at nagtext pang "You don’t need to produce an emergency SOS
for me, I’ll be fine."
Now, nang makara[t]ing na raw sa Bulacan si Mega nagtatarang daw ito at
binadmouth si Pettizou. Kesyo ang kulit-kulit daw nito, atribida, mapapel at
kung anu-ano pang mga derogatory words na nakarating siyempre sa
kinauukulan.
Anyhow, if it’s true that Ms. Pettizou has been most financially supportive
of Kiko, how come Sharon seems not to approve of her?
"She doesn’t want kasi her husband to win as a senator because when that
happens, mawawalan siya ng hold sa kanya," our caller opines.
Pettizou is really sad that Sharon is treating her husband like a wimp.
"In public," our source goes on tartly, "pa kiss-kiss siya. Pa-embrace-
embrace pero kung silang dalawa na lang parang kung sinong sampid kung
i-treat niya si Kiko."
My God Pete, Harvard graduate si Kiko. He’s really intelligent as compared
to Sharon who appears to be brain dead most of the time.
Yung text message niyang "You don’t need to produce an emergency SOS
for me," hindi ba’t she was being redundant?
Another thing, I guess it’s high time that she goes on a diet again. Jesus,
she looks 6’11 crosswise!
xxx
Kunsabagay, she was only being most consistent. Yang si Sharon daw ay
talagang mega-brat, mega-sungit. But who does she think she is? Her
wealth, dear, would pale in comparison with the Tayag’s millions.
Kunsabagay, she’s brain dead most of the time.
xxx
thereby casting publicly upon complainant, malicious contemptuous
imputation of a vice, condition or defect, which tend to cause complainant
her dishonor, discredit or contempt.
CONTRARY TO LAW.5
Upon arraignment, petitioners, together with their co-accused
Ampoloquio, each entered a plea of not guilty. Thereafter, a joint pre-trial
and trial of the case ensued.6
Respondent’s undated Complaint-Affidavit 7 alleged that Bautista and
Alcantara were Editor and Associate Editor, respectively, of the publication
Bandera, and their co-accused, Ampoloquio, was the author of the alleged
libelous articles which were published therein, and subject of the two
informations. According to respondent, in April 2001, she and her family
were shocked to learn about an article dated March 27, 2001, featured on
page 7 of Bandera (Vol. 11, No. 156), in the column Usapang Censored of
Ampoloquio, entitled Naburyong sa Kaplastikan ni Sharon ang
Milyonaryang Supporter ni Kiko, that described her as plastic (hypocrite),
ingrate, mega-brat, mega-sungit, and brain dead, which were the subject
of Criminal Case No. MC02-4875.8 Another article, with the same title and
similar text, also featured on the same date, appeared on page 6 of Saksi
Ngayon, in the column Banatan of Ampoloquio. 9 Moreover, respondent
averred that on April 24, 2001, Ampoloquio wrote two follow-up articles,
one appeared in his column Usapang Censored, entitled Magtigil Ka,
Sharon!, stating that she bad-mouthed one Pettizou Tayag by calling the
latter kulit-kulit (annoyingly persistent), atribida (presumptuous), mapapel
(officious or self-important), and other derogatory words; that she
humiliated Tayag during a meeting by calling the latter bobo (stupid); that
she exhibited offensive behavior towards Tayag; and that she was a
dishonest person with questionable credibility, which were the subject of
Criminal Case No. MC02-4872.10 Another article, entitled Magtigil Ka,
Sharon Cuneta!!!!, also featured on the same date with similar text, and
appeared on page 7 of Saksi Ngayon (Vol. 3, No. 285), in the column
Banatan of Ampoloquio,11 with the headline in bold letters, Sharon Cuneta,
May Sira? on the front page of the said issue. 12 Respondent added that
Ampoloquio’s articles impugned her character as a woman and wife, as
they depicted her to be a domineering wife to a browbeaten husband.
According to Ampoloquio, respondent did not want her husband (Senator
Francis Pangilinan) to win (as Senator) because that would mean losing
hold over him, and that she would treat him like a wimp and sampid
(hanger-on) privately, but she appeared to be a loving wife to him in
public. Respondent denied that Tayag contributed millions to her
husband’s campaign fund. She clarified that Tayag assisted during the
campaign and was one of the volunteers of her husband’s Kilos Ko
Movement, being the first cousin of one Atty. Joaquinito Harvey B. Ringler
(her husband’s partner in Franco Pangilinan Law Office); however, it was
Atty. Ringler who asked Tayag to resign from the movement due to
difficulty in dealing with her.
After presenting respondent on the witness stand, the prosecution filed its
Formal Offer of Documentary Exhibits dated October 11, 2006, which
included her undated Complaint-Affidavit. 13
On November 14, 2006, petitioners filed a Motion for Leave of Court to File
the Attached Demurrer to Evidence.14 In their Demurrer to
Evidence,15 which was appended to the said Motion, Bautista and Alcantara
alleged that the prosecution's evidence failed to establish their
participation as Editor and Associate Editor, respectively, of the publication
Bandera; that they were not properly identified by respondent herself
during her testimony; and that the subject articles written by Ampoloquio
were not libelous due to absence of malice.
On April 25, 2008, the RTC issued an Order 16 granting petitioners’ Demurrer
to Evidence and dismissed Criminal Case Nos. MCO2-4872 and MCO2-
4875. The trial court opined, among others, that since the prosecution did
not submit its Comment/Opposition to the petitioners' Demurrer to
Evidence, the averments therein thus became unrebutted; that the
testimonial and documentary evidence adduced by the prosecution failed
to prove the participation of petitioners as conspirators of the crime
charged; and that during the direct examination on July 27, 2004 and
cross-examination on August 1, 2006, respondent neither identified them,
nor was there any mention about their actual participation.
As a consequence, the prosecution filed a Motion to Admit 17 dated May 29,
2008, with the attached Comment (to Accused Lito Bautista and Jimmy
Alcantara's Demurrer to Evidence)18 dated March 24, 2008, stating that
during the pendency of the trial court's resolution on the petitioners'
Motion for Leave of Court to File the Attached Demurrer to Evidence, with
the attached Demurrer to Evidence, the prosecution intended to file its
Comment, by serving copies thereof, through registered mail, upon
counsels for the petitioners, including the other accused, and the
respondent; however, said Comment was not actually filed with the trial
court due to oversight on the part of the staff of the State Prosecutor
handling the case.19 Claiming that it was deprived of due process, the
prosecution prayed that its Comment be admitted and that the same be
treated as a reconsideration of the trial court's Order dated April 25, 2008.
In an Order dated June 3, 2008, the RTC granted the prosecutions' Motion
to Admit, with the attached Comment, and ruled that its Comment be
admitted to form part of the court records.
On August 19, 2008, respondent filed a Petition for Certiorari with the CA,
seeking to set aside the RTC Orders dated April 25, 2008 (which granted
petitioners' Demurrer to Evidence and ordered the dismissal of the cases
against them) and June 3, 2008 (which noted and admitted respondent's
Comment to form part of the records of the case).
In a Decision dated May 19, 2009, the CA granted respondent's petition,
thereby reversing and setting aside the RTC Order dated April 25, 2008, but
only insofar as it pertains to the grant of petitioners' Demurrer to Evidence,
and ordered that the case be remanded to the trial court for reception of
petitioners' evidence.
Aggrieved, petitioners filed a Motion for Reconsideration dated June 7,
2009 which, however, was denied by the CA in a Resolution dated
September 28, 2009.
Hence, petitioners filed this present petition, raising the following
arguments:
I.
RESPONDENT'S PETITION FOR CERTIORARI BEFORE THE COURT OF
APPEALS IS BARRED BY THE PETITIONERS' RIGHT AGAINST
DOUBLE JEOPARDY.
II.
RESPONDENT'S PETITION FOR CERTIORARI BEFORE THE COURT OF
APPEALS DOES NOT LIE TO CORRECT ALLEGED ERRORS OF
JUDGMENT COMMITTED BY THE REGIONAL TRIAL COURT.
III.
THE COURT OF APPEALS ERRED IN FINDING THAT THE TRIAL
COURT COMMITTED GRAVE ABUSE OF DISCRETION IN GRANTING
PETITONERS' DEMURRER TO EVIDENCE.
Petitioners allege that the Order of the RTC, dated April 25, 2008, granting
the Demurrer to Evidence was tantamount to an acquittal. As such, the
prosecution can no longer interpose an appeal to the CA, as it would place
them in double jeopardy. Petitioners contend that respondent's petition
for certiorari with the CA should not have prospered, because the
allegations therein, in effect, assailed the trial court's judgment, not its
jurisdiction. In other words, petitioners posit that the said Order was in the
nature of an error of judgment rendered, which was not correctible by a
petition for certiorari with the CA.
Petitioners aver that although the CA correctly ruled that the prosecution
had not been denied due process, however, it erred in ruling that the trial
court committed grave abuse of discretion in granting petitioners'
Demurrer to Evidence, on the basis that the prosecution failed to prove
that they acted in conspiracy with Ampoloquio, the author of the
questioned articles. They added that what the prosecution proved was
merely their designations as Editor and Associate Editor of the publication
Bandera, but not the fact that they had either control over the articles to
be published or actually edited the subject articles.
Respondent counters that petitioners failed to show special and important
reasons to justify their invocation of the Court's power to review under
Rule 45 of the Rules of Court. She avers that the acquittal of petitioners
does not preclude their further prosecution if the judgment acquitting
them is void for lack of jurisdiction. Further, she points out that contrary to
petitioners’ contention, the principle of double jeopardy does not attach in
cases where the court's judgment acquitting the accused or dismissing the
case is void, either for having disregarded the State's right to due process
or for having been rendered by the trial court with grave abuse of
discretion amounting to lack or excess of jurisdiction, and not merely
errors of judgment.
Respondent also avers that even if the prosecution was deemed to have
waived its right to file a Comment on the petitioners’ Motion for Leave of
Court to File the Attached Demurrer to Evidence, this did not give the trial
court any reason to deprive the prosecution of its right to file a Comment
on the petitioners’ Demurrer to Evidence itself, which was a clear violation
of the due process requirement. By reason of the foregoing, respondent
insists that petitioners cannot invoke violation of their right against double
jeopardy.
The petition is impressed with merit.
At the onset, it should be noted that respondent took a procedural
misstep, and the view she is advancing is erroneous. The authority to
represent the State in appeals of criminal cases before the Supreme Court
and the CA is solely vested in the Office of the Solicitor General (OSG).
Section 35 (1), Chapter 12, Title III, Book IV of the 1987 Administrative
Code explicitly provides that the OSG shall represent the Government of
the Philippines, its agencies and instrumentalities and its officials and
agents in any litigation, proceeding, investigation or matter requiring the
services of lawyers. It shall have specific powers and functions to represent
the
Government and its officers in the Supreme Court and the CA, and all other
courts or tribunals in all civil actions and special proceedings in which the
Government or any officer thereof in his official capacity is a party. 20 The
OSG is the law office of the Government.21
To be sure, in criminal cases, the acquittal of the accused or the dismissal
of the case against him can only be appealed by the Solicitor General,
acting on behalf of the State. The private complainant or the offended
party may question such acquittal or dismissal only insofar as the civil
liability of the accused is concerned. In a catena of cases, this view has
been time and again espoused and maintained by the Court. In Rodriguez
v. Gadiane,22 it was categorically stated that if the criminal case is dismissed
by the trial court or if there is an acquittal, the appeal on the criminal
aspect of the case must be instituted by the Solicitor General in behalf of
the State. The capability of the private complainant to question such
dismissal or acquittal is limited only to the civil aspect of the case. The
same determination was also arrived at by the Court in Metropolitan Bank
and Trust Company v. Veridiano II. 23 In the recent case of Bangayan, Jr. v.
Bangayan,24 the Court again upheld this guiding principle.
Worthy of note is the case of People v. Santiago, 25 wherein the Court had
the occasion to bring this issue to rest. The Court elucidated:
It is well-settled that in criminal cases where the offended party is the
State, the interest of the private complainant or the private offended party
is limited to the civil liability. Thus, in the prosecution of the offense, the
complainant's role is limited to that of a witness for the prosecution. If a
criminal case is dismissed by the trial court or if there is an acquittal, an
appeal therefrom on the criminal aspect may be undertaken only by the
State through the Solicitor General. Only the Solicitor General may
represent the People of the Philippines on appeal. The private offended
party or complainant may not take such appeal. However, the said
offended party or complainant may appeal the civil aspect despite the
acquittal of the accused.
In a special civil action for certiorari filed under Section 1, Rule 65 of the
Rules of Court wherein it is alleged that the trial court committed a grave
abuse of discretion amounting to lack of jurisdiction or on other
jurisdictional grounds, the rules state that the petition may be filed by the
person aggrieved. In such case, the aggrieved parties are the State and the
private offended party or complainant. The complainant has an interest in
the civil aspect of the case so he may file such special civil action
questioning the decision or action of the respondent court on jurisdictional
grounds. In so doing, complainant should not bring the action in the name
of the People of the Philippines. The action may be prosecuted in name of
said complainant.26
Thus, the Court has definitively ruled that in a criminal case in which the
offended party is the State, the interest of the private complainant or the
private offended party is limited to the civil liability arising therefrom. If a
criminal case is dismissed by the trial court or if there is an acquittal, an
appeal of the criminal aspect may be undertaken, whenever legally
feasible, only by the State through the solicitor general. As a rule, only the
Solicitor General may represent the People of the Philippines on appeal.
The private offended party or complainant may not undertake such
appeal.27
In the case at bar, the petition filed by the respondent before the CA
essentially questioned the criminal aspect of the Order of the RTC, not the
civil aspect of the case. Consequently, the petition should have been filed
by the State through the OSG. Since the petition for certiorari filed in the
CA was not at the instance of the OSG, the same should have been
outrightly dismissed by the CA. Respondent lacked the personality or legal
standing to question the trial court’s order because it is only the Office of
the Solicitor General (OSG), who can bring actions on behalf of the State in
criminal proceedings, before the Supreme Court and the CA. 28 Thus, the CA
should have denied the petition outright.
Moreover, not only did the CA materially err in entertaining the petition, it
should be stressed that the granting of petitioners’ Demurrer to Evidence
already amounted to a dismissal of the case on the merits and a review of
the order granting the demurrer to evidence will place the accused in
double jeopardy. Consequently, the Court disagrees with the CA’s ruling
reversing the trial court’s order dismissing the criminal cases against
petitioners.
Under Section 23,29 Rule 119 of the Rules of Court on Demurrer to
Evidence, after the prosecution terminates the presentation of evidence
and rests its case, the trial court may dismiss the case on the ground of
insufficiency of evidence upon the filing of a Demurrer to Evidence by the
accused with or without leave of court. If the accused files a Demurrer to
Evidence with prior leave of court and the same is denied, he may adduce
evidence in his defense. However, if the Demurrer to Evidence is filed by
the accused without prior leave of court and the same is denied, he waives
his right to present evidence and submits the case for judgment on the
basis of the evidence for the prosecution.
Corollarily, after the prosecution rests its case, and the accused files a
Demurrer to Evidence, the trial court is required to evaluate whether the
evidence presented by the prosecution is sufficient enough to warrant the
conviction of the accused beyond reasonable doubt. If the trial court finds
that the prosecution evidence is not sufficient and grants the accused's
Demurrer to Evidence, the ruling is an adjudication on the merits of the
case which is tantamount to an acquittal and may no longer be appealed.
Any further prosecution of the accused after an acquittal would, thus,
violate the constitutional proscription on double jeopardy. 30
Anent the prosecution’s claim of denial of due process. As correctly found
by the CA, the prosecution was not denied due process. Suffice it to state
that the prosecution had actively participated in the trial and already
rested its case, and upon petitioners' filing of their Demurrer to Evidence,
was given the opportunity to file its Comment or Opposition and, in fact,
actually filed its Comment thereto, albeit belatedly. The CA emphasized
that the word "may" was used in Section 23 of Rule 119 of the Revised
Rules of Criminal Procedure, which states that if leave of court is granted,
and the accused has filed the Demurrer to Evidence within a non-
extendible period of ten (10) days from notice, the prosecution "may"
oppose the Demurrer to Evidence within a similar period from its
receipt.1âwphi1 In this regard, the CA added that the filing of a Comment
or Opposition by respondent is merely directory, not a mandatory or
jurisdictional requirement, and that in fact the trial court may even
proceed with the resolution of the petitioners' Demurrer to Evidence even
without the prosecution's Comment.
One final note. Article 360 of the Revised Penal Code specifies the persons
that can be held liable for libel. It provides:
ART. 360. Persons responsible. — Any person who shall publish, exhibit or
cause the publication or exhibition of any defamation in writing or by
similar means, shall be responsible for the same.
The author or editor of a book or pamphlet, or the editor or business
manager of a daily newspaper, magazine or serial publication, shall be
responsible for the defamation contained therein to the same extent as if
he were the author thereof.31
From the foregoing, not only is the person who published, exhibited or
caused the publication or exhibition of any defamation in writing shall be
responsible for the same, all other persons who participated in its
publication are liable, including the editor or business manager of a daily
newspaper, magazine or serial publication, who shall be equally
responsible for the defamations contained therein to the same extent as if
he were the author thereof. The liability which attaches to petitioners is,
thus, statutory in nature.
In Fermin v. People,32 therein petitioner argued that to sustain a conviction
for libel under Article 360 of the Code, it is mandatory that the publisher
knowingly participated in or consented to the preparation and publication
of the libelous article. She also averred that she had adduced ample
evidence to show that she had no hand in the preparation and publication
of the offending article, nor in the review, editing, examination, and
approval of the articles published in Gossip Tabloid. The Court struck down
her erroneous theory and ruled that therein petitioner, who was not only
the Publisher of Gossip Tabloid but also its President and Chairperson,
could not escape liability by claiming lack of participation in the
preparation and publication of the libelous article.
Similarly, in Tulfo v. People, 33 therein petitioners, who were Managing
Editor, National Editor of Remate publication, President of Carlo Publishing
House, and one who does typesetting, editing, and layout of the page,
claim that they had no participation in the editing or writing of the subject
articles which will hold them liable for the crime of libel and, thus, should
be acquitted. In debunking this argument, the Court stressed that an editor
or manager of a newspaper, who has active charge and control over the
publication, is held equally liable with the author of the libelous article.
This is because it is the duty of the editor or manager to know and control
the contents of the paper, and interposing the defense of lack of
knowledge or consent as to the contents of the articles or publication
definitely will not prosper.
The rationale for the criminal culpability of those persons enumerated in
Article 360 was already elucidated as early as in the case of U.S. v.
Ocampo,34 to wit:
According to the legal doctrines and jurisprudence of the United States,
the printer of a publication containing libelous matter is liable for the same
by reason of his direct connection therewith and his cognizance of the
contents thereof. With regard to a publication in which a libel is printed,
not only is the publisher but also all other persons who in any way
participate in or have any connection with its publication are liable as
publishers.35
Accordingly, Article 360 would have made petitioners Bautista and
Alcantara, being the Editor and Assistant Editor, respectively, of Bandera
Publishing Corporation, answerable with Ampoloquio, for the latter’s
alleged defamatory writing, as if they were the authors thereof. Indeed, as
aptly concluded by the court a quo:
The aforestated provision is clear and unambiguous. It equally applies to
an editor of a publication in which a libelous article was published and
states that the editor of the same shall be responsible for the defamation
in writing as if he were the author thereof. Indeed, when an alleged
libelous article is published in a newspaper, such fact alone sufficient
evidence to charge the editor or business manager with the guilt of its
publication. This sharing of liability with the author of said article is based
on the principle that editors and associate editors, by the nature of their
positions, edit, control and approve the materials which are to be
published in a newspaper. This means that, without their nod of
approbation, any article alleged to be libelous would not be published.
Hence, by virtue of their position and the authority which they exercise,
newspaper editors and associate editors are as much critical part in the
publication of any defamatory material as the writer or author thereof. 36
Nevertheless, petitioners could no longer be held liable in view of the
procedural infirmity that the petition for certiorari was not undertaken by
the OSG, but instead by respondent in her personal capacity. Although the
conclusion of the trial court may be wrong, to reverse and set aside the
Order granting the demurrer to evidence would violate petitioners’
constitutionally-enshrined right against double jeopardy. Had it not been
for this procedural defect, the Court could have seriously considered the
arguments advanced by the respondent in seeking the reversal of the
Order of the RTC.
The granting of a demurrer to evidence should, therefore, be exercised
with caution, taking into consideration not only the rights of the accused,
but also the right of the private offended party to be vindicated of the
wrongdoing done against him, for if it is granted, the accused is acquitted
and the private complainant is generally left with no more remedy. In such
instances, although the decision of the court may be wrong, the accused
can invoke his right against double jeopardy. Thus, judges are reminded to
be more diligent and circumspect in the performance of their duties as
members of the Bench, always bearing in mind that their decisions affect
the lives of the accused and the individuals who come to the courts to seek
redress of grievances, which decision could be possibly used by the
aggrieved party as basis for the filing of the appropriate actions against
them.

Perforce, the Order dated April 25, 2008 of the Regional Trial Court, Branch
212, Mandaluyong City, in Criminal Case Nos. MC02-4872 and MC02-4875,
which dismissed the actions as against petitioners Lito Bautista and Jimmy
Alcantara, should be reinstated.

WHEREFORE, the petition is GRANTED. The Decision dated May 19, 2009
and Resolution dated September 28, 2009 of the Court of Appeals, in CA-
G.R. SP No. 104885, are REVERSED AND SET ASIDE. The portion of the
Order dated April 25, 2008 of the Regional Trial Court, Branch 212,
Mandaluyong City, in Criminal Case Nos. MC02-4872 and MC02-4875,
which dismissed the actions as against petitioners Lito Bautista and Jimmy
Alcantara, is REINSTATED.

SO ORDERED.