denied the motion.
 2 A motion for reconsideration of the order was
EN BANC
June 30, 1987
G.R. No. L-53373
MARIO FL. CRESPO, petitioner,
vs.
HON. LEODEGARIO L. MOGUL, Presiding Judge, CIRCUIT
CRIMINAL COURT OF LUCENA CITY, 9th Judicial Dist., THE
PEOPLE OF THE PHILIPPINES, represented by the SOLICITOR
GENERAL, RICARDO BAUTISTA, ET AL., respondents.
GANCAYCO, J.:
The issue raised in this ease is whether the trial court acting on a
motion to dismiss a criminal case filed by the Provincial Fiscal upon
instructions of the Secretary of Justice to whom the case was
elevated for review, may refuse to grant the motion and insist on the
arraignment and trial on the merits.
On April 18, 1977 Assistant Fiscal Proceso K. de Gala with the
approval of the Provincial Fiscal filed an information for estafa against
Mario Fl. Crespo in the Circuit Criminal Court of Lucena City which
was docketed as Criminal Case No. CCCIX-52 (Quezon) '77. 1 When
the case was set for arraigment the accused filed a motion to defer
arraignment on the ground that there was a pending petition for
review filed with the Secretary of Justice of the resolution of the Office
of the Provincial Fiscal for the filing of the information. In an order of
August 1, 1977, the presiding judge, His Honor, Leodegario L. Mogul,
denied in the order of August 5, 1977 but the arraignment was
deferred to August 18, 1977 to afford time for petitioner to elevate the
matter to the appellate court. 3
A petition for certiorari and prohibition with prayer for a preliminary writ
of injunction was filed by the accused in the Court of Appeals that was
docketed as CA-G.R. SP No. 06978. 4 In an order of August 17, 1977
the Court of Appeals restrained Judge Mogul from proceeding with the
arraignment of the accused until further orders of the Court. 5 In a
comment that was filed by the Solicitor General he recommended that
the petition be given due course. 6 On May 15, 1978 a decision was
rendered by the Court of Appeals granting the writ and perpetually
restraining the judge from enforcing his threat to compel the
arraignment of the accused in the case until the Department of Justice
shall have finally resolved the petition for review. 7
On March 22, 1978 then Undersecretary of Justice, Hon.Catalino
Macaraig, Jr., resolving the petition for review reversed the resolution
of the Office of the Provincial Fiscal and directed the fiscal to move for
immediate dismissal of the information filed against the accused. 8 A
motion to dismiss for insufficiency of evidence was filed by the
Provincial Fiscal dated April 10, 1978 with the trial court, 9 attaching
thereto a copy of the letter of Undersecretary Macaraig, Jr. In an order
of August 2, 1978 the private prosecutor was given time to file an
opposition thereto.10 On November 24, 1978 the Judge denied the
motion and set the arraigniment stating:
ORDER
For resolution is a motion to dismiss this rase filed by the
procuting fiscal premised on insufficiency of evidence, as
suggested by the Undersecretary of Justice, evident from
Annex "A" of the motion wherein, among other things, the
Fiscal is urged to move for dismissal for the reason that the
check involved having been issued for the payment of a pre-
existing obligation the Hability of the drawer can only be civil
and not criminal.
The motion's thrust being to induce this Court to resolve the
innocence of the accused on evidence not before it but on that
adduced before the Undersecretary of Justice, a matter that
 not only disregards the requirements of due process but also
erodes the Court's independence and integrity, the motion is
considered as without merit and therefore hereby DENIED.
WHEREFORE, let the arraignment be, as it is hereby set for
December 18, 1978 at 9:00 o'clock in the moming.
SO ORDERED. 11
The accused then filed a petition for certiorari, prohibition and
mandamus with petition for the issuance of preliminary writ of
prohibition and/or temporary restraining order in the Court of Appeals
that was docketed as CA-G.R. No. SP-08777. 12 On January 23, 1979
a restraining order was issued by the Court of Appeals against the
threatened act of arraignment of the accused until further orders from
the Court. 13 In a decision of October 25, 1979 the Court of Appeals
dismissed the petition and lifted the restraining order of January 23,
1979. 14 A motion for reconsideration of said decision filed by the
accused was denied in a resolution of February 19, 1980. 15
Hence this petition for review of said decision was filed by accused
whereby petitioner prays that said decision be reversed and set aside,
respondent judge be perpetually enjoined from enforcing his threat to
proceed with the arraignment and trial of petitioner in said criminal
case, declaring the information filed not valid and of no legal force and
effect, ordering respondent Judge to dismiss the said case, and
declaring the obligation of petitioner as purely civil. 16
In a resolution of May 19, 1980, the Second Division of this Court
without giving due course to the petition required the respondents to
comment to the petition, not to file a motiod to dismiss, within ten (10)
days from notice. In the comment filed by the Solicitor General he
recommends that the petition be given due course, it being
meritorious. Private respondent through counsel filed his reply to the
comment and a separate conunent to the petition asking that the
petition be dismissed. In the resolution of February 5, 1981, the
Second Division of this Court resolved to transfer this case to the
Court En Banc. In the resolution of February 26, 1981, the Court En
Banc resolved to give due course to the petition.
Petitioner and private respondent filed their respective briefs while the
Solicitor General filed a Manifestation in lieu of brief reiterating that
the decision of the respondent Court of Appeals be reversed and that
respondent Judge be ordered to dismiss the information.
It is a cardinal principle that an criminal actions either commenced by
complaint or by information shall be prosecuted under the direction
and control of the fiscal. 17 The institution of a criminal action depends
upon the sound discretion of the fiscal. He may or may not file the
complaint or information, follow or not fonow that presented by the
offended party, according to whether the evidence in his opinion, is
sufficient or not to establish the guilt of the accused beyond
reasonable doubt. 18 The reason for placing the criminal prosecution
under the direction and control of the fiscal is to prevent malicious or
unfounded prosecution by private persons. 19 It cannot be controlled
by the complainant. 20 Prosecuting officers under the power vested in
them by law, not only have the authority but also the duty of
prosecuting persons who, according to the evidence received from the
complainant, are shown to be guilty of a crime committed within the
jurisdiction of their office. 21 They have equally the legal duty not to
prosecute when after an investigation they become convinced that the
evidence adduced is not sufficient to establish a prima facie case. 22
It is through the conduct of a preliminary investigation 23 that the fiscal
determines the existence of a puma facie case that would warrant the
prosecution of a case. The Courts cannot interfere with the fiscal's
discretion and control of the criminal prosecution. It is not prudent or
even permissible for a Court to compel the fiscal to prosecute a
proceeding originally initiated by him on an information, if he finds that
the evidence relied upon by him is insufficient for conviction. 24 Neither
has the Court any power to order the fiscal to prosecute or file an
information within a certain period of time, since this would interfere
with the fiscal's discretion and control of criminal
prosecutions. 25 Thus, a fiscal who asks for the dismissal of the case
for insufficiency of evidence has authority to do so, and Courts that
grant the same commit no error. 26 The fiscal may re-investigate a
case and subsequently move for the dismissal should the re-
investigation show either that the defendant is innocent or that his
guilt may not be established beyond reasonable doubt. 27 In a clash of
views between the judge who did not investigate and the fiscal who
did, or between the fiscal and the offended party or the defendant,
those of the Fiscal's should normally prevail. 28 On the other hand,
neither an injunction, preliminary or final nor a writ of prohibition may
be issued by the courts to restrain a criminal prosecution 29 except in
the extreme case where it is necessary for the Courts to do so for the
orderly administration of justice or to prevent the use of the strong arm
of the law in an op pressive and vindictive manner. 30
However, the action of the fiscal or prosecutor is not without any
limitation or control. The same is subject to the approval of the
provincial or city fiscal or the chief state prosecutor as the case maybe
and it maybe elevated for review to the Secretary of Justice who has
the power to affirm, modify or reverse the action or opinion of the
fiscal. Consequently the Secretary of Justice may direct that a motion
to dismiss the rase be filed in Court or otherwise, that an information
be filed in Court. 31
The filing of a complaint or information in Court initiates a criminal
action. The Court thereby acquires jurisdiction over the case, which is
the authority to hear and determine the case. 32 When after the filing of
the complaint or information a warrant for the arrest of the accused is
issued by the trial court and the accused either voluntarily submited
himself to the Court or was duly arrested, the Court thereby acquired
jurisdiction over the person of the accused. 33
The preliminary investigation conducted by the fiscal for the purpose
of determining whether a prima facie case exists warranting the
prosecution of the accused is terminated upon the filing of the
information in the proper court. In turn, as above stated, the filing of
said information sets in motion the criminal action against the accused
in Court. Should the fiscal find it proper to conduct a reinvestigation of
the case, at such stage, the permission of the Court must be secured.
After such reinvestigation the finding and recommendations of the
fiscal should be submitted to the Court for appropriate action. 34 While
it is true that the fiscal has the quasi judicial discretion to determine
whether or not a criminal case should be filed in court or not, once the
case had already been brought to Court whatever disposition the
fiscal may feel should be proper in the rase thereafter should be
addressed for the consideration of the Court, 35 The only qualification
is that the action of the Court must not impair the substantial rights of
the accused. 36 or the right of the People to due process of law. 36a
Whether the accused had been arraigned or not and whether it was
due to a reinvestigation by the fiscal or a review by the Secretary of
Justice whereby a motion to dismiss was submitted to the Court, the
Court in the exercise of its discretion may grant the motion or deny it
and require that the trial on the merits proceed for the proper
determination of the case.
However, one may ask, if the trial court refuses to grant the motion to
dismiss filed by the fiscal upon the directive of the Secretary of Justice
will there not be a vacuum in the prosecution? A state prosecutor to
handle the case cannot possibly be designated by the Secretary of
Justice who does not believe that there is a basis for prosecution nor
can the fiscal be expected to handle the prosecution of the case
thereby defying the superior order of the Secretary of Justice.
The answer is simple.1âwphi1 The role of the fiscal or prosecutor as
We all know is to see that justice is done and not necessarily to
secure the conviction of the person accused before the Courts. Thus,
in spite of his opinion to the contrary, it is the duty of the fiscal to
proceed with the presentation of evidence of the prosecution to the
Court to enable the Court to arrive at its own independent judgment
as to whether the accused should be convicted or acquitted. The
fiscal should not shirk from the responsibility of appearing for the
People of the Philippines even under such circumstances much less
should he abandon the prosecution of the case leaving it to the hands
of a private prosecutor for then the entire proceedings will be null and
void. 37 The least that the fiscal should do is to continue to appear for
the prosecution although he may turn over the presentation of the
evidence to the private prosecutor but still under his direction and
control. 38
The rule therefore in this jurisdiction is that once a complaint or
information is filed in Court any disposition of the case as its dismissal
or the conviction or acquittal of the accused rests in the sound
discretion of the Court. Although the fiscal retains the direction and
control of the prosecution of criminal cases even while the case is
already in Court he cannot impose his opinion on the trial court. The
Court is the best and sole judge on what to do with the case before it.
The determination of the case is within its exclusive jurisdiction and
competence. A motion to dismiss the case filed by the fiscal should be
addressed to the Court who has the option to grant or deny the same.
It does not matter if this is done before or after the arraignment of the
accused or that the motion was filed after a reinvestigation or upon
instructions of the Secretary of Justice who reviewed the records of
the investigation.
In order therefor to avoid such a situation whereby the opinion of the
Secretary of Justice who reviewed the action of the fiscal may be
disregarded by the trial court, the Secretary of Justice should, as far
as practicable, refrain from entertaining a petition for review or appeal
from the action of the fiscal, when the complaint or information has
already been filed in Court. The matter should be left entirely for the
determination of the Court.

WHEREFORE, the petition is DISMISSED for lack of merit without

pronouncement as to costs.

SO ORDERED.

Yap, Fernan, Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras,

Feliciano, Padilla, Bidin, Sarmiento and Cortes, JJ., concur.
Teehankee C.J., took no part.
 Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. Nos. L-41213-14 October 5, 1976
JORGE P. TAN, JR., CESAR TAN, LIBRADO SODE TEOFANIS
BONJOC, OSMUNDO TOLENTINO and MARIANO
BARTIDO, petitioners,
vs.
JUDGE PEDRO GALLARDO, in his capacity as Presiding Judge
of Circuit Criminal Court, 13th Judicial District, Tacloban City,
and PEOPLE OF THE PHILIPPINES, respondents.
Pelaez, Jalandoni & Adriano for petitioner Jorge P. Tan, Jr.
K.V. Faylona & Associates for petitioner Cesar Tan.
Ruperto Kapunan, Jr. for petitioner Teofanis Bondoc.
Amadeo Seno, Artemio Derecho & Manuel Quimbo for petitioners
Librado Isode, Osmundo, Tolentino and Mariano Bartido.
Solicitor General Estilito P. Mendoza, Assistant Solicitor General
Alicia Simpio-Diy and Solicitor Eduardo L. Kilayko for respondents.
Estanislao A. Fernandez and Dakila F. Castro & Associate as private
prosecutors.
ANTONIO, J.:
In this Special Civil Action for certiorari with Prohibition, petitioners
seek the annulment of respondent Judge's Orders in Criminal Cases
Nos. CCC—XIII-50-L-S'72 and CCC-XIII-51-L-S'72, 1 to wit: (a) Order
of July 21, 1975, denying petitioners' motion for respondent Judge to
disqualify or to inhibit himself from hearing and acting upon their
Motion for New Trial and/or Reconsideration and Supplemental
Motion for New Trial; (b) Order of July 23, 1975, denying petitioners'
Motion for New Trial and/or Reconsidertion and Supplemental Motion
for New Trial; and (c) Order of July 25, 1975, ordering the transfer of
the accused (petitioners herein) from Camp Bumpus PC
headquarters, Tacloban city, to the Nationial Penitentiary, New Bilibid
Prisons, Muntinlupa, Rizal. It is likewise sought, by way of prohibition,
to compel respondent Judge to desist from further proceeding with the
afore-mentioned criminal cases.
By Resolution of this Court dated August 27, 1975, the respondent
Judge was required to file his answer within ten (10) days from notice,
and in connection therewith, a temporary restraining order was issued
to enjoin the respondent from further proceeding with the afore-
mentioned criminal cases. The petition was subsequently amended to
include the People of the Philippines and thereafter, on January 14,
1976, the Solicitor General, on behalf of the People of the Philippines,
submitted his Comment to the petition. The Solicitor General informed
this Court, thus: that they are "persuaded that there are bases for
stating that the rendition of respondent Judge's decision and his
resolution on the motion for new trial were not free from suspicion of
bias and prejudice ... . Considering the circumstances of the instant
case, the seriousness of the charges and counter-charges and the
nature of the evidence on hand to support them, we feel that
respondent Judge "appeared to have been heedless of the oft-
reiterated admonition addressed to trial judges to avoid even the
impression of the guilt or innocence of the accused being dependent
on prejudice or prejudgment" and, therefore, it was the submission of
said official "that the case should he remanded to the trial court for the
rendition of a new decision and with instruction to receive additional
evidence proferred by the accused with the right of the prosecution to
present rebuttal evidence as inay be warranted" and, therefore, they
interpose no objection to the remand of the aforementioned criminal
cases "for the rendition of a new decision by another trial judge, after
the parties shall have adduced such additional evidence as they may
wish to make, under such terms and conditions as this Honorable
Court may deem fit to impose. 2
On January 30, 1976, private prosecutors submitted their Comment in
justification of the challenged Orders of the respondent Judge and
objected to the remand of this case.
On February 12, 1976, the petitioners moved to strike out the "Motion
to Admit Attacked Comment" and the "Comment" of the private
prosecutor on the ground that the latter has "absolutely no standing in
the instant proceedings before this Honorable Court and, hence,
without any personality to have any paper of his entertained by this
Tribunal.
The private prosecutors now contend that they are entitled to appear
before this Court, to take part in the proceedings, and to adopt a
position in contravention to that of the Solicitor General.
The issue before Us is whether or not the private prosecutors have
the right to intervene independently of the Solicitor General and to
adopt a stand inconsistent with that of the latter in the present
proceedings.
There are important reasons which support the view that in the
present proceedings, the private prosecutors cannot intervene
independently of and take a position inconsistent with that of the
Solicitor General.
To begin with, it will be noted that the participation of the private
prosecution in the instant case was delimited by this Court in its
Resolution of October 1, 1975, thus: "to collaborate with the Solicitor
General in the preparation of the Answer and pleadings that may be
required by this Court." To collaborate means to cooperate with and to
assist the Solicitor General. It was never intended that the private
prosecutors could adopt a stand independent of or in contravention of
the position taken by the Solicitor General.
There is no question that since a criminal offense is an outrage to the
sovereignty of the State, it is but natural that the representatives of the
State should direct and control the prosecution. As stressed in Suarez
v. Platon, et al., 3 the prosecuting officer "is the representative not of.
an ordinary party to a controversy, but of a sovereignty whose
obligation to govern impartially is as compelling as its obligation to
govern at all; and whose interest, therefore, in a criminal prosecution
is not that it shall win a case, but that justice shall be done. As such,
he is in a peculiar and very definite sense the servant of the law, the
twofold aim of which is that guilt shall not escape or innocence suffer.
He may prosecute with earnestness and vigor—indeed, he should do
so. But, while he may strike hard blows, he is not at liberty to strike
foul ones. It is as much his duty to refrain from improper methods
calculated to produce a wrongful conviction as it is to use every
legitimate means to bring about a just one." Thus, it was stressed
in People v. Esquivel, et al., 4 that there is an absolute necessity for
prosecuting attorneys to lay "before the court the pertinent facts at
their disposal with methodical and meticulous attention, clarifying
contradictions and filling up gaps and loopholes in their evidence, to
the end that the court's mind may not be tortured by doubts, that the
innocent may not suffer and the guilty not escape unpunished.
Obvious to all, this is the prosecution's prime duty to the court, to the
accused, and to the state." It is for the purpose of realizing the afore-
mentioned objectives that the prosecution of offenses is placed under
the direction, control, and responsibility of the prosecuting officer.
The role of the private prosecutors, upon the other hand, is to
represent the offended parts, with respect to the civil action for the
recovery of the civil liability arising from the offense. 'This civil action is
deemed instituted with the criminal action, unless the offended party
either expressly waives the civil action or reserves to institute it
separately.5 Thus, "an offended party may intervene in the
proceedings, personally or by attorney, specially in case of offenses
which can not be prosecuted except at the instance of the offended
party. 6 The only exception to this is when the offended party waives
his right to civil action or expressly reserves his right to institute it after
the termination of the case, in which case he lost his right to intervene
upon the theory that he is deemed to have lost his interest in its
prosecution. 7 And in any event, whether an offended party intervenes
in the prosecution of a criminal action, his intervention must always be
subject to the direction and control of the prosecuting official. " 8 As
explained in Herrero v. Diaz, supra, the "intervention of the offended
party or his attorney is authorized by section 15 of Rule 106 of the
Rules of Court, subject to the provisions of section 4 of the same Rule
that all criminal actions either commenced by complaint or by
information shall be prosecuted under the direction and control of the
Fiscal." (Emphasis supplied)
Therefore, although the private prosecutors may be permitted to
intervene, they are not in control of the case, and their interests are
subordinate to those of the People of the Philippines represented by
the fiscal. 9 The right which the procedural law reserves to the injured
party is that of intervening in the prosecution for the sole purpose of
enforcing the civil liability for the criminal action and not of demanding
punishment of the accused. 10 As explained in People v. Orais: 11
... the position occupied by the offended
party is subordinate to that of the
promotor fiscal because, as promotor
fiscal alone is authorized to represent
the public prosecution, or the People of
the Philippine Islands, in the prosecution
of offenders, and to control the
proceeding, and as it is discretionary
with him to institute and prosecute a
criminal proceeding, being at liberty to
commence it or not, depending upon
whether or not there is, in his opinion,
sufficient evidence to establish the guilt
of the accused beyond reasonable
doubt, except when the case is pending
in the Court of First Instance, the
continuation of the offended party's
intervention depends upon the
continuation of the proceeding.
Consequently, if the promotor fiscal
desists from pressing the charge or asks
the competent Court of first Instance in
which the case is pending for the
dismissal thereof, and said court grants
the petition, the intervention of the
person injured by the commission of the
offense ceases by virtue of the principle
that the accessory follows the principal.
Consequently, as the offended party is
not entitled to represent the People of
the Philippine Islands in the prosecution
of a public offense, or to control the
proceeding once it is commenced, and
as his right to intervene therein is
subject to the promotor fiscal's right of
control, it cannot be stated that an order
of dismissal decreed upon petiton of the
promotor fiscal himself deprives the
offended party of his right to appeal from
an order overruling a complaint or
information, which right belongs
exclusively to the promotor fiscal by
virtue of the provisions of section 44 of
General Orders, No. 58. To permit a
person injured by the commission of an
offense to appeal from an order
dismissing a criminal case issued by a
Court of First Instance upon petition of
the promotor fiscal, would be
tantamount to giving said offended party
of the direction and control of a criminal
proceeding in violation of the provisions
of the above-cited section 107 of
General Orders, No. 58.
Consequently, where from the nature of the offense, or where the law
defining and punishing the offense charged does not provide for an
indemnity, the offended party may not intervene in the prosecution of
the offense. 12
There is no question that the Solicitor General represents the People
of the Philippines or the State in criminal proceedings pending either
in the Court of Appeals or in this Court. Thus, Section 1 of Presidential
Decree No. 478, "Defining the Powers and Functions of the Office of
the Solicitor General", provides:
SECTION 1. Function and Organization. (1) The Office
of the Solicitor General 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 a
lawyer. ... The office of the Solicitor General shall
constitute the law office of the Government, and such,
shall discharge duties requiring the services of a
lawyer. It shall have the following specific powers and
functions:
(a) Represent the Governemnt in the Supreme Court
and the Court of Appeals in all criminal proceedings;
represent the Government and its officers in the
Supreme Court, the Court of Appeals, 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 the party.
xxx xxx xxx
(k) Act and represent the Republic and/or the people
before any court, tribunal, body or commission in any
matter, action or proceeding which in his opinion,
affects the welfare of the people as the ends of justice
may require.
xxx xxx xxx
It is evident, therefore, that since the Solicitor General alone is
authorized to represent the State or the People of the Philippines the
interest of the private prosecutors is subordinate to that of the State
and they cannot be allowed to take a stand inconsistent with that of
the Solicitor General, for that would be tantamount to giving the latter
the direction and control of the criminal proceedings, contrary to the
provisions of law and the settled rules on the matter.
Moreover, the position taken by the Solicitor General in
recommending the remand of the case to the trial court is not without
any plausible justification. Thus, in support of his contention that the
rendition of the decision and the resolution on the subsequent motions
by the respondent Judge were not free from suspicion of bias and
prejudice, the Solicitor General stated:
In alleging bias and manifest partiality on the part of
respondent judge, petitioners assert that:
(a) Respondent judge kept improper contact with and
was illegally influenced by the Larrazabals in
connection with the decision of the two cases against
petitioners herein;
(b) In the latter part of 1973, with the trial of the Tan
cases still in progress, respondent judge received,
through one of his court stenographers, two bottles of
whisky from Mayor Inaki Larrazabal, brother and uncle
of the deceased victims Feliciano and Francisco
Larrazabal;
(c) On one occasion, Mayor Larrazabal had a short talk
with respondent judge, after which the latter received
from one of the private prosecutors a bottle of wine
wrapped in a newspaper which was "thick" and "bulky"
and which allegedly contained "something else inside";
(d) Respondent judge prepared the decision in the Tan
cases based on the memorandum of the prosecution
which was literally copied in said decision although with
some corrections; and
(e) After an alleged meeting with Mayor Inaki
Larrazabal, respondent judge amended his already
prepared decision in the two criminal cases involved
herein by changing the penalty of double life sentence
for the double murder charge against the petitioners to
the death penalty.
The foregoing alleged irregularities are mainly
supported by an affidavit executed on June 26, 1975
by Gerardo A. Makinano Jr., court stenographer of the
Circuit Criminal Court, Tacloban City (Annex "E",
Petition). The truth of the charges made in such
affidavit are denied by respondent judge (in his answer
to the instant petition dated October 11, 1975), who in
turn claims that it was petitioners who tried to bribe him
into acquitting them in the aforesaid criminal cases,
after they were illegally furnished a copy of the draft of
his decision of conviction by the same court
stenographer Gerardo A. Makinano Jr. (please see
Answer of respondent judge, pp. 12-13). Unlike in the
cases of Mateo vs. Villaluz, 50 SCRA 191 (1973),
and Castillo vs. Juan, 62 SCRA 124 (1974) relied upon
mainly by herein petitioners, the facts alleged as
constituting the grounds for disqualifying the
respondent judge in the instant petition are disputed.
Apart from the sworn statements submitted before this
Court in support or in denial of the alleged bribery of
 respondent judge, we have been informed of evidence
obtained by the National Bureau of Investigation when
it cannot appropriate for us at this time, however, and
we are unable to do so, to submit to this Court definite
conclusions on the charges and counter-charges. An
exhaustive inquiry and open hearing should perhaps
precede the making of categorical conclusions. But we
are persuaded that there are bases for stating that the
rendition of respondent Judge's decision and his
resolutions on the motions for new trial were not free
from suspicion of bias and prejudice (See Martinez
Gironella, 65 SCRA 245 [July 22, 1975]).
It appears, however, that respondent Judge is no longer in the judicial
service, hence, the question as to whether or not he should be
disqualified from further proceeding with the aforementioned criminal
cases has already become moot.
WHEREFORE, this Court grants the petition and hereby demands the
case to the trial court in order that another Judge may hear anew
petitioners' motion for new trial and to resolve the issue accordingly on
the basis of the evidence. No Special pronouncement as to costs.
Fernando, (Chairman), Barredo, Aquino, and concepcion Jr. JJ.,
concur.

Considering the circumstances of the instant case, the

seriousness of the charges and counter-charges and
the nature of the evidence on hand to support them, we
feel that respondent Judge appeared to have been
heedless to the oft-reiterated admonition addressed to
trial judges to avoid even the impression of the guilt or
innocence of the accused being dependent on
prejudice or prejudgment (Fernando, J., Concurring
opinion, Martinez Gironella, supra, at 252). ...

It is undisputed that the sole purpose of courts of justice is to enforce

the laws uniformly and impartially without regard to persons or their
circumstances or the opinions of men. A judge, according to Justice
Castro, now Chief Justice of this Court, should strive to be at all times
"wholly free, disinterested, impartial and independent. Elementary due
process requires a hearing before an impartial and disinterested
tribunal. A judge has both the duty of rendering a just decision and the
duty, of doing it in a manner completely free from suspicion as to its
fairness and as to his integrity. 13 Thus, it has always been stressed
that judges should not only be impartial but should also appear
impartial. For "impartiality is not a technical conception, It is a state of
mind" 14 and, consequently, the "appearance of impartiality is an
essential manifestation of its reality. 15 It must be obvious, therefore,
that while judges should possess proficiency in law in order that they
can competently construe and enforce the law, it is more important
that they should act and behave in such a manner that the parties
before them should have confidence in their impartiality.

THIRD DIVISION
G.R. No. 152644             February 10, 2006
JOHN ERIC LONEY, STEVEN PAUL REID and PEDRO B.
HERNANDEZ, Petitioners,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
CARPIO, J.:
The Case
This is a petition for review1 of the Decision2 dated 5 November 2001
and the Resolution dated 14 March 2002 of the Court of Appeals. The
5 November 2001 Decision affirmed the ruling of the Regional Trial
Court, Boac, Marinduque, Branch 94, in a suit to quash Informations
filed against petitioners John Eric Loney, Steven Paul Reid, and
Pedro B. Hernandez ("petitioners"). The 14 March 2002 Resolution
denied petitioners’ motion for reconsideration.
The Facts
Petitioners John Eric Loney, Steven Paul Reid, and Pedro B.
Hernandez are the President and Chief Executive Officer, Senior
Manager, and Resident Manager for Mining Operations, respectively,
of Marcopper Mining Corporation ("Marcopper"), a corporation
engaged in mining in the province of Marinduque.
Marcopper had been storing tailings3 from its operations in a pit in Mt.
Tapian, Marinduque. At the base of the pit ran a drainage tunnel
leading to the Boac and Makalupnit rivers. It appears that Marcopper
had placed a concrete plug at the tunnel’s end. On 24 March 1994,
tailings gushed out of or near the tunnel’s end. In a few days, the Mt.
Tapian pit had discharged millions of tons of tailings into the Boac and
Makalupnit rivers.
In August 1996, the Department of Justice separately charged
petitioners in the Municipal Trial Court of Boac, Marinduque ("MTC")
with violation of Article 91(B),4 sub-paragraphs 5 and 6 of Presidential
Decree No. 1067 or the Water Code of the Philippines ("PD
1067"),5 Section 86 of Presidential Decree No. 984 or the National
Pollution Control Decree of 1976 ("PD 984"),7 Section 1088 of
Republic Act No. 7942 or the Philippine Mining Act of 1995 ("RA
7942"),9 and Article 36510 of the Revised Penal Code ("RPC") for
Reckless Imprudence Resulting in Damage to Property.11
Petitioners moved to quash the Informations on the following grounds:
(1) the Informations were "duplicitous" as the Department of Justice
charged more than one offense for a single act; (2) petitioners John
Eric Loney and Steven Paul Reid were not yet officers of Marcopper
when the incident subject of the Informations took place; and (3) the
Informations contain allegations which constitute legal excuse or
justification.
The Ruling of the MTC
In its Joint Order of 16 January 1997 ("Joint Order"), the MTC 12 initially
deferred ruling on petitioners’ motion for lack of "indubitable ground
for the quashing of the [I]nformations x x x." The MTC scheduled
petitioners’ arraignment in February 1997. However, on petitioners’
motion, the MTC issued a Consolidated Order on 28 April 1997
("Consolidated Order"), granting partial reconsideration to its Joint
Order and quashing the Informations for violation of PD 1067 and PD
984. The MTC maintained the Informations for violation of RA 7942
and Article 365 of the RPC. The MTC held:
[T]he 12 Informations have common allegations of pollutants pointing
to "mine tailings" which were precipitately discharged into the
Makulapnit and Boac Rivers due to breach caused on the Tapian
drainage/tunnel due to negligence or failure to institute adequate
measures to prevent pollution and siltation of the Makulapnit and
Boac River systems, the very term and condition required to be
undertaken under the Environmental Compliance Certificate issued on
April 1, 1990.
The allegations in the informations point to same set [sic] of evidence
required to prove the single fact of pollution constituting violation of
the Water Code and the Pollution Law which are the same set of
evidence necessary to prove the same single fact of pollution, in
proving the elements constituting violation of the conditions of ECC,
issued pursuant to the Philippine Mining Act. In both instances, the
terms and conditions of the Environmental Compliance Certificate
were allegedly violated. In other words, the same set of evidence is
required in proving violations of the three (3) special laws.
After carefully analyzing and weighing the contending arguments of
the parties and after taking into consideration the applicable laws and
jurisprudence, the Court is convinced that as far as the three (3)
aforesaid laws are concerned, only the Information for [v]iolation of
Philippine Mining Act should be maintained. In other words, the
Informations for [v]iolation of Anti-Pollution Law (PD 984) and the
Water Code (PD 1067) should be dismissed/quashed because the
elements constituting the aforesaid violations are absorbed by the
same elements which constitute violation of the Philippine Mining Act
(RA 7942).
Therefore, x x x Criminal Case[] Nos. 96-44, 96-45 and 96-46 for
[v]iolation of the Water Code; and Criminal Case[] Nos. 96-47, 96-48
and 96-49 for [v]iolation of the Anti-Pollution Law x x x are hereby
DISMISSED or QUASHED and Criminal Case[] Nos. 96-50, 96-51
and 96-52 for [v]iolation of the Philippine Mining Act are hereby
retained to be tried on the merits.
The Information for [v]iolation of Article 365 of the Revised Penal
Code should also be maintained and heard in a full blown trial
because the common accusation therein is reckless imprudence
resulting to [sic] damage to property. It is the damage to property
which the law punishes not the negligent act of polluting the water
system. The prosecution for the [v]iolation of Philippine Mining Act is
not a bar to the prosecution for reckless imprudence resulting to [sic]
damage to property.13
The MTC re-scheduled petitioners’ arraignment on the remaining
charges on 28 and 29 May 1997. In the hearing of 28 May 1997,
petitioners manifested that they were willing to be arraigned on the
charge for violation of Article 365 of the RPC but not on the charge for
violation of RA 7942 as they intended to appeal the Consolidated
Order in so far as it maintained the Informations for that offense. After
making of record petitioners’ manifestation, the MTC proceeded with
the arraignment and ordered the entry of "not guilty" pleas on the
charges for violation of RA 7942 and Article 365 of the RPC.
Petitioners subsequently filed a petition for certiorari with the Regional
Trial Court, Boac, Marinduque, assailing that portion of the
Consolidated Order maintaining the Informations for violation of RA
7942. Petitioners’ petition was raffled to Branch 94. For its part, public
respondent filed an ordinary appeal with the same court assailing that
portion of the Consolidated Order quashing the Informations for
violation of PD 1067 and PD 984. Public respondent’s appeal was
raffled to Branch 38. On public respondent’s motion, Branch 38
ordered public respondent’s appeal consolidated with petitioners’
petition in Branch 94.
The Ruling of Branch 94
In its Resolution14 of 20 March 1998, Branch 94 granted public
respondent’s appeal but denied petitioners’ petition. Branch 94 set
aside the Consolidated Order in so far as it quashed the Informations
for violation of PD 1067 and PD 984 and ordered those charges
reinstated. Branch 94 affirmed the Consolidated Order in all other
respects. Branch 94 held:
After a careful perusal of the laws concerned, this court is of the
opinion that there can be no absorption by one offense of the three
other offenses, as [the] acts penalized by these laws are separate and
distinct from each other. The elements of proving each violation are
not the same with each other. Concededly, the single act of dumping
mine tailings which resulted in the pollution of the Makulapnit and
Boac rivers was the basis for the information[s] filed against the
accused each charging a distinct offense. But it is also a well-
established rule in this jurisdiction that –
"A single act may offend against two or more entirely distinct and
unrelated provisions of law, and if one provision requires proof of an
additional fact or element which the other does not, an acquittal or
conviction or a dismissal of the information under one does not bar
prosecution under the other. x x x."
xxxx
[T]he different laws involve cannot absorb one another as the
elements of each crime are different from one another. Each of these
laws require [sic] proof of an additional fact or element which the other
does not although they stemmed from a single act.15
Petitioners filed a petition for certiorari with the Court of Appeals
alleging that Branch 94 acted with grave abuse of discretion because
(1) the Informations for violation of PD 1067, PD 984, RA 7942 and
the Article 365 of the RPC "proceed from and are based on a single
act or incident of polluting the Boac and Makalupnit rivers thru
dumping of mine tailings" and (2) the duplicitous nature of the
Informations contravenes the ruling in People v. Relova. 16 Petitioners
further contended that since the acts complained of in the charges for
violation of PD 1067, PD 984, and RA 7942 are "the very same acts
complained of" in the charge for violation of Article 365 of the RPC,
the latter absorbs the former. Hence, petitioners should only be
prosecuted for violation of Article 365 of the RPC.17
The Ruling of the Court of Appeals
In its Decision of 5 November 2001, the Court of Appeals affirmed
Branch 94’s ruling. The appellate court held:
The records of the case disclose that petitioners filed a motion to
quash the aforementioned Informations for being duplicitous in nature.
Section 3 of Rule 117 of the Revised Rules of Court specifically
provides the grounds upon which an information may be quashed. x x
x Informations against the petitioners for violation of P.D. 1067 and P.D.
xxxx
[D]uplicity of Informations is not among those included in x x x
[Section 3, Rule 117].
xxxx
We now go to petitioners’ claim that the resolution of the public
respondent contravened the doctrine laid down in People vs. Relova
for being violative of their right against multiple prosecutions.
In the said case, the Supreme Court found the People’s argument
with respect to the variances in the mens rea of the two offenses
being charged to be correct. The Court, however, decided the case in
the context of the second sentence of Article IV (22) of the 1973
Constitution (now under Section 21 of Article III of the 1987
Constitution), rather than the first sentence of the same section. x x x
xxxx
[T]he doctrine laid down in the Relova case does not squarely apply to
the case at Bench since the Informations filed against the petitioners
are for violation of four separate and distinct laws which are national
in character.
xxxx
This Court firmly agrees in the public respondent’s understanding that
the laws by which the petitioners have been [charged] could not
possibly absorb one another as the elements of each crime are
different. Each of these laws require [sic] proof of an additional fact or
element which the other does not, although they stemmed from a
single act. x x x
xxxx
[T]his Court finds that there is not even the slightest indicia of
evidence that would give rise to any suspicion that public respondent
acted with grave abuse of discretion amounting to excess or lack of
jurisdiction in reversing the Municipal Trial Court’s quashal of the
984. This Court equally finds no error in the trial court’s denial of the
petitioner’s motion to quash R.A. 7942 and Article 365 of the Revised
Penal Code.18
Petitioners sought reconsideration but the Court of Appeals denied
their motion in its Resolution of 14 March 2002.
Petitioners raise the following alleged errors of the Court of Appeals: The petition raises these issues:

I. THE COURT OF APPEALS COMMITTED A R[E]VERSIBLE (1) Whether all the charges filed against petitioners except one
ERROR IN MAINTAINING THE CHARGES FOR VIOLATION should be quashed for duplicity of charges and only the charge
OF THE PHILIPPINE MINING ACT (R.A. 7942) AND for Reckless Imprudence Resulting in Damage to Property
REINSTATING THE CHARGES FOR VIOLATION OF THE should stand; and
WATER CODE (P.D. 1067) AND POLLUTION CONTROL
LAW (P.D. 984), CONSIDERING THAT: (2) Whether Branch 94’s ruling, as affirmed by the Court of
Appeals, contravenes People v. Relova.
A. THE INFORMATIONS FOR VIOLATION OF THE
WATER CODE (P.D. 1067), THE POLLUTION The Ruling of the Court
CONTROL LAW (P.D. 984), THE PHILIPPINE MINING
ACT (R.A. 7942) AND ARTICLE 365 OF THE The petition has no merit.
REVISED PENAL CODE PROCEED FROM AND ARE
BASED ON A SINGLE ACT OR INCIDENT OF No Duplicity of Charges in the Present Case
POLLUTING THE BOAC AND MAKULAPNIT RIVERS
THRU DUMPING OF MINE TAILINGS. Duplicity of charges simply means a single complaint or information
charges more than one offense, as Section 13 of Rule 11020 of the
B. THE PROSECUTION OF PETITIONERS FOR 1985 Rules of Criminal Procedure clearly states:
DUPLICITOUS AND MULTIPLE CHARGES
CONTRAVENES THE DOCTRINE LAID DOWN IN Duplicity of offense. – A complaint or information must charge but one
PEOPLE VS. RELOVA, 148 SCRA 292 [1986 THAT offense, except only in those cases in which existing laws prescribe a
"AN ACCUSED SHOULD NOT BE HARASSED BY single punishment for various offenses.
MULTIPLE PROSECUTIONS FOR OFFENSES
WHICH THOUGH DIFFERENT FROM ONE
In short, there is duplicity (or multiplicity) of charges when a single
ANOTHER ARE NONETHELESS EACH
Information charges more than one offense.21
CONSTITUTED BY A COMMON SET OR
OVERLAPPING SETS OF TECHNICAL ELEMENTS."
Under Section 3(e), Rule 11722 of the 1985 Rules of Criminal
Procedure, duplicity of offenses in a single information is a ground to
II. THE COURT OF APPEALS COMMITTED A REVERSIBLE
quash the Information. The Rules prohibit the filing of such
ERROR IN RULING THAT THE ELEMENT OF LACK OF
Information to avoid confusing the accused in preparing his
NECESSARY OR ADEQUATE PRECAUTION,
defense.23 Here, however, the prosecution charged each petitioner
NEGLIGENCE, RECKLESSNESS AND IMPRUDENCE
with four offenses, with each Information charging only one offense.
UNDER ARTICLE 356 [sic] OF THE REVISED PENAL CODE
Thus, petitioners erroneously invoke duplicity of charges as a ground
DOES NOT FALL WITHIN THE AMBIT OF ANY OF THE
to quash the Informations. On this score alone, the petition deserves
ELEMENTS OF THE PERTINENT PROVISIONS OF THE
outright denial.
WATER CODE, POLLUTION CONTROL LAW AND
PHILIPPINE MINING ACT CHARGED AGAINST
PETITIONERS[.] 19 The Filing of Several Charges is Proper

The Issues Petitioners contend that they should be charged with one offense only
— Reckless Imprudence Resulting in Damage to Property — because
(1) all the charges filed against them "proceed from and are based on
a single act or incident of polluting the Boac and Makalupnit rivers thru
dumping of mine tailings" and (2) the charge for violation of Article 365
of the RPC "absorbs" the other charges since the element of "lack of
necessary or adequate protection, negligence, recklessness and
imprudence" is common among them.
The contention has no merit.
As early as the start of the last century, this Court had ruled that a
single act or incident might offend against two or more entirely distinct
and unrelated provisions of law thus justifying the prosecution of the
accused for more than one offense.24 The only limit to this rule is the
Constitutional prohibition that no person shall be twice put in jeopardy
of punishment for "the same offense."25 In People v. Doriquez,26 we
held that two (or more) offenses arising from the same act are not "the
same" —
x x x if one provision [of law] requires proof of an additional fact or
element which the other does not, x x x. Phrased elsewise, where two
different laws (or articles of the same code) define two crimes, prior
jeopardy as to one of them is no obstacle to a prosecution of the
other, although both offenses arise from the same facts, if each crime
involves some important act which is not an essential element of the
other.27 (Emphasis supplied)
Here, double jeopardy is not at issue because not all of its elements
are present.28 However, for the limited purpose of controverting
petitioners’ claim that they should be charged with one offense only,
we quote with approval Branch 94’s comparative analysis of PD 1067,
PD 984, RA 7942, and Article 365 of the RPC showing that in each of
these laws on which petitioners were charged, there is one essential
element not required of the others, thus:
In P.D. 1067 (Philippines Water Code), the additional element to be
established is the dumping of mine tailings into the Makulapnit River
and the entire Boac River System without prior permit from the
authorities concerned. The gravamen of the offense here is the
absence of the proper permit to dump said mine tailings. This element
is not indispensable in the prosecution for violation of PD 984 (Anti-
Pollution Law), [RA] 7942 (Philippine Mining Act) and Art. 365 of the
Revised Penal Code. One can be validly prosecuted for violating the
Water Code even in the absence of actual pollution, or even [if] it has
complied with the terms of its Environmental Compliance Certificate,
or further, even [if] it did take the necessary precautions to prevent
damage to property.
In P.D. 984 (Anti-Pollution Law), the additional fact that must be
proved is the existence of actual pollution. The gravamen is the
pollution itself. In the absence of any pollution, the accused must be
exonerated under this law although there was unauthorized dumping
of mine tailings or lack of precaution on its part to prevent damage to
property.
In R.A. 7942 (Philippine Mining Act), the additional fact that must be
established is the willful violation and gross neglect on the part of the
accused to abide by the terms and conditions of the Environmental
Compliance Certificate, particularly that the Marcopper should ensure
the containment of run-off and silt materials from reaching the
Mogpog and Boac Rivers. If there was no violation or neglect, and
that the accused satisfactorily proved [sic] that Marcopper had done
everything to ensure containment of the run-off and silt materials, they
will not be liable. It does not follow, however, that they cannot be
prosecuted under the Water Code, Anti-Pollution Law and the
Revised Penal Code because violation of the Environmental
Compliance Certificate is not an essential element of these laws.
On the other hand, the additional element that must be established in
Art. 365 of the Revised Penal Code is the lack of necessary or
adequate precaution, negligence, recklessness and imprudence on
the part of the accused to prevent damage to property. This element
is not required under the previous laws. Unquestionably, it is different
from dumping of mine tailings without permit, or causing pollution to
the Boac river system, much more from violation or neglect to abide
by the terms of the Environmental Compliance Certificate. Moreover,
the offenses punished by special law are mal[a] prohibita in contrast
with those punished by the Revised Penal Code which are mala in
se.29
Consequently, the filing of the multiple charges against petitioners,
although based on the same incident, is consistent with settled
doctrine.
On petitioners’ claim that the charge for violation of Article 365 of the
RPC "absorbs" the charges for violation of PD 1067, PD 984, and RA
7942, suffice it to say that a mala in se felony (such as Reckless
Imprudence Resulting in Damage to Property) cannot absorb mala
prohibita crimes (such as those violating PD 1067, PD 984, and RA
7942). What makes the former a felony is criminal intent (dolo) or
negligence (culpa); what makes the latter crimes are the special laws
enacting them.
People v. Relova not in Point
Petitioners reiterate their contention in the Court of Appeals that their
prosecution contravenes this Court’s ruling in People v. Relova. In
particular, petitioners cite the Court’s statement in Relova that the law
seeks to prevent harassment of the accused by "multiple prosecutions
for offenses which though different from one another are nonetheless
each constituted by a common set or overlapping sets of technical
elements."
This contention is also without merit.1avvphil.net
The issue in Relova is whether the act of the Batangas Acting City
Fiscal in charging one Manuel Opulencia ("Opulencia") with theft of
electric power under the RPC, after the latter had been acquitted of
violating a City Ordinance penalizing the unauthorized installation of
electrical wiring, violated Opulencia’s right against double jeopardy.
We held that it did, not because the offenses punished by those two
laws were the same but because the act giving rise to the charges
was punished by an ordinance and a national statute, thus falling
within the proscription against multiple prosecutions for the same act
under the second sentence in Section 22, Article IV of the 1973
Constitution, now Section 21, Article III of the 1987 Constitution. We
held:
The petitioner concludes that:
"The unauthorized installation punished by the ordinance [of Batangas
City] is not the same as theft of electricity [under the Revised Penal
Code]; that the second offense is not an attempt to commit the first or
a frustration thereof and that the second offense is not necessarily
included in the offense charged in the first information."
The above argument[ ] made by the petitioner [is] of course correct.
This is clear both from the express terms of the constitutional
provision involved – which reads as follows:
"No person shall be twice put in jeopardy of punishment for the same
offense. If an act is punished by a law and an ordinance, conviction or
acquittal under either shall constitute a bar to another prosecution for
the same act." x x x
and from our case law on this point. The basic difficulty with the
petitioner’s position is that it must be examined, not under the terms of
the first sentence of Article IV (22) of the 1973 Constitution, but rather
under the second sentence of the same section. The first sentence of
Article IV (22) sets forth the general rule: the constitutional protection
against double jeopardy is not available where the second
prosecution is for an offense that is different from the offense charged
in the first or prior prosecution, although both the first and second
offenses may be based upon the same act or set of acts. The second
sentence of Article IV (22) embodies an exception to the general
proposition: the constitutional protection, against double jeopardy is
available although the prior offense charged under an ordinance be
different from the offense charged subsequently under a national
statute such as the Revised Penal Code, provided that both offenses
spring from the same act or set of acts. x x x 30 (Italicization in the
original; boldfacing supplied)
Thus, Relova is no authority for petitioners’ claim against multiple
prosecutions based on a single act not only because the question of
double jeopardy is not at issue here, but also because, as the Court of
Appeals held, petitioners are being prosecuted for an act or incident
punished by four national statutes and not by an ordinance and a
national statute. In short, petitioners, if ever, fall under the first
sentence of Section 21, Article III which prohibits multiple prosecution
for the same offense, and not, as in Relova, for offenses arising from
the same incident.
WHEREFORE, we DENY the petition. We AFFIRM the Decision
dated 5 November 2001 and the Resolution dated 14 March 2002 of
the Court of Appeals.
SO ORDERED.
 and Claudine Divina, a minor, 3 V% years of age, who suffered the
following:

"Gunshot wound -

Point of Entry - 9th ICS along the mid-axillary line, right, 1 cm. diameter
EN BANC
Point of Exit - 7th ICS mid-axillary line, left;"
G.R. No. 202124, April 05, 2016

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. IRENEO JUGUETA Accused- which directly caused their instant death.
Appellant.

DECISION That the crime committed in the dwelling of the offended party who
had not given provocation for the attack and the accused took
PERALTA, J.: advantage of nighttime to facilitate the commission of the offense.

This resolves the appeal from the Decision1 of the Court of Appeals Contrary to law.2ChanRoblesVirtualawlibrary
(CA) dated January 30, 2012 in CA-G.R. CR HC No. 03252. The CA
affirmed the judgments of the Regional Trial Court (RTC), Branch 61,
In Criminal Case No. 7702-G, appellant, together with Gilbert Estores
Gumaca, Quezon, finding accused-appellant Ireneo Jugueta y Flores
and Roger San Miguel, was charged with Multiple Attempted Murder,
guilty beyond reasonable doubt of Double Murder in Criminal Case
allegedly committed as follows:
No. 7698-G and Multiple Attempted Murder in Criminal Case No.
7702-G.
That on or about 9:00 o'clock in the evening of 6th day of June, 2002,
at Barangay Caridad Ilaya, Municipality of Atimonan, Province of
In Criminal Case No. 7698-G, appellant was charged with Double
Quezon, Philippines and within the jurisdiction of this Honorable
Murder, defined and penalized under Article 248 of the Revised Penal
Court,the above-named accused, conspiring and confederating
Code, allegedly committed as follows:
together and mutually helping one another, armed with short firearms
of undetermined calibres, with intent to kill, qualified by treachery, with
That on or about the 6th day of June 2002, at about 9:00 o'clock in the
evident premeditation and abuse of superior strength, did then and
evening, at Barangay Caridad Ilaya, Municipality of Atimonan,
there wilfully, unlawfully and feloniously attack, assault, and shoot with
Province of Quezon, Philippines, and within the jurisdiction of this
the said firearms the house occupied by the family of Norberto Divina,
Honorable Court, the above-named accused, armed with a caliber .22
thereby commencing the commission of the crime of Murder, directly
firearm, with intent to kill, qualified by treachery and evident
by overt acts, but did not perform all the acts of execution which would
premeditation, did then and there willfully, unlawfully and feloniously
have produced it by reason of some cause or accident other than the
attack, assault and shoot with said firearm Mary Grace Divina, a
spontaneous desistance of the accused, that is, the occupants
minor, 13 years old, who suffered the following:
Norberto Divina, his wife Maricel Divina and children Elizabeth Divina
chanRoblesvirtualLawlibrary
and Judy Ann Divina, both elementary pupils and who are minors,
"Gunshot wound -
were not hit.
Point of Entry - lower abdomen, right, 2 cm. from the midline and 6
CONTRARY TO LAW.3
cm. from the level of the umbilicus, directed upward toward the left
upper abdomen."

Roger San Miguel, however, moved for reinvestigation of the case
against them. At said proceedings, one Danilo Fajarillo submitted his
sworn statement stating that on June 6, 2002, he saw appellant with a
certain "Hapon" and Gilbert Estores at the crime scene, but it was only
appellant who was carrying a firearm while the other two had no
participation in the shooting incident. Fajarillo further stated that Roger
San Miguel was not present at the crime scene. Based on the sworn
statement of Fajarillo, the Provincial Prosecutor found no prima
facie case against Gilbert Estores and Roger San Miguel.4 Thus, upon
motion of the prosecution, the case for Attempted Murder against
Gilbert Estores and Roger San Miguel was dismissed, and trial
proceeded only as to appellant.5
At the trial, the prosecution presented the testimonies of Norberto
Divina, the victim, and Dr. Lourdes Taguinod who executed the
Medico-Legal Certificate and confirmed that the children of Norberto,
namely, Mary Grace and Claudine, died from gunshot wounds. Dr.
Taguinod noted that the trajectory of the bullet wounds showed that
the victims were at a higher location than the shooter, but she could
not tell what kind of ammunitions were used.6
Norberto testified that the appellant is his brother-in-law. He recounted
that in the evening of June 6, 2002, as his entire family lay down on
the floor of their one-room nipa hut to sleep, the "sack" walling of their
hut was suddenly stripped off, and only the supporting bamboo
(fences) remained. With the covering of the wall gone, the three (3)
men responsible for the deed came into view. Norberto clearly saw
their faces which were illuminated by the light of a gas lamp hanging
in their small hut. Norberto identified the 3 men as appellant, Gilbert
Estores and Roger San Miguel.
The 3 men ordered Norberto to come down from his house, but he
refused to do so. The men then uttered, "Magdasal ka na at
katapusan mo na ngayon" Norberto pleaded with them,
saying, "Maawa kayo sa amin, matanda na ako at marami akong
anak. Anong kasalanan ko sa inyo?" Despite such plea for mercy, a
gunshot was fired, and Norberto immediately threw his body over his
children and wife in an attempt to protect them from being hit.
Thereafter, he heard successive gunshots being fired in the direction
where his family huddled together in their hut.7
When the volley of shots ceased and the three (3) men left, Norberto
saw that his two (2) young daughters were wounded. His wife went
out of their house to ask for help from neighbors, while he and his
older daughter carried the two (2) wounded children out to the street.
His daughter Mary Grace died on the way to the hospital, while
Claudine expired at the hospital despite the doctors' attempts to revive
her.8
In answer to questions of what could have prompted such an attack
from appellant, Norberto replied that he had a previous altercation
with appellant who was angered by the fact that he (Norberto) filed a
case against appellant's two other brothers for molesting his
daughter.9
On the other hand, appellant was only able to proffer denial and alibi
as his defense. Appellant's testimony, along with those of Gilbert
Estores, Roger San Miguel, Isidro San Miguel and Ruben Alegre, was
that he (appellant) was just watching TV at the house of Isidro San
Miguel, where he had been living for several years, at the time the
shooting incident occurred. However, he and the other witnesses
admitted that said house was a mere five-minute walk away from the
crime scene.10
Finding appellant's defense to be weak, and ascribing more credence
to the testimony of Norberto, the trial court ruled that the evidence
clearly established that appellant, together with two other assailants,
conspired to shoot and kill the family of Norberto. Appellant was then
convicted of Double Murder in Criminal Case No. 7698-G and Multiple
Attempted Murder in Criminal Case No. 7702-G.
The dispositive portion of the trial court's judgment in Criminal Case
No. 7698-G reads:
WHEREFORE and in view of all the foregoing, the Court finds
accused Ireneo Jugueta guilty beyond reasonable doubt for Double
Murder defined and punished under Article 248 of the Revised Penal
Code and is hereby sentenced to suffer Reclusion Perpetua for the
death of Mary Grace Divina and to indemnify her heirs in the amount
of Php50,000.00 and another to suffer Reclusion Perpetua for the
death of Claudine Divina and accused is further ordered to indemnify
the heirs of Claudine Divina in the sum of Php50,000.00. In addition,
he is hereby ordered to pay the heirs of the victims actual damages in
the amount of Php16,150.00 and to pay for the costs,
SO ORDERED.11ChanRoblesVirtualawlibrary
On the other hand, the dispositive portion of the trial court's judgment
in Criminal Case No. 7702-G, reads:
WHEREFORE and in view of all the foregoing, the Court finds
accused Ireneo Jugueta guilty beyond reasonable doubt for Multiple
Attempted Murder defined and penalized under Article 248 in relation
to Article 51 of the Revised Penal Code and is hereby sentenced to
suffer the penalty of FOUR (4) YEARS and TWO (2) MONTHS
of Prision Correctional as minimum to EIGHT (8) YEARS and ONE (1)
DAY of Prision Mayor as maximum for each of the offended parties;
Norberto Divina, Maricel Divina, Elizabeth Divina and Judy Ann
Divina. Further, accused is ordered to pay for the costs of the suit.
SO ORDERED.12
Aggrieved by the trial court's judgments, appellant appealed to the
CA. On January 30, 2012, the CA rendered a Decision affirming
appellant's conviction for the crimes charged.13
Dissatisfied with the CA Decision, appellant elevated the case to this
Court. On July 30, 2012, the Court issued a Resolution14 notifying the
parties that they may submit their respective Supplemental Briefs.
Both parties manifested that they will no longer submit supplemental
briefs since they had exhaustively discussed their positions before the
CA.15
The main issue advanced in the Appellant's Brief deals with the
inconsistencies in Norberto's testimony, such as his failure to state
from the beginning that all three assailants had guns, and to
categorically identify appellant as the one holding the gun used to kill
Norberto's children.
The appeal is unmeritorious.
At the outset, it must be stressed that factual findings of the trial court,
its assessment of the credibility of witnesses and the probative weight
of their testimonies, and the conclusions based on these factual
findings are to be given the highest respect. Thus, generally, the
Court will not recalibrate and re-examine evidence that had been
analyzed and ruled upon by the trial court and affirmed by the CA.16
The evidence on record fully supports the trial court's factual finding,
as affirmed by the CA, that appellant acted in concert with two other
individuals, all three of them carrying firearms and simultaneously
firing at Norberto and his family, killing his two young daughters.
Norberto clearly saw all of the three assailants with their firearms as
there is illumination coming from a lamp inside their house that had
been laid bare after its walling was stripped off, to wit:
Q: When the wall of your house was stripped off by these three
persons at the same time, do you have light in your house?
A: Yes., sir.
Q: What kind of light was there?
A: A gas lamp.
Q: Where was the gas lamp placed at that time?
A: In the middle of our house.
xxxx
Q: when did they fire a shot?
A: On the same night, when they had stripped off the wallings.
Q: How many gunshots did you hear?
A: Only one.
Q: Do you know the sound of a gunshot? A firearm? A: Yes, sir, it is
loud? (sic)
xxxx
Q: After the first shot, was there any second shot?
A: After that, successive fire shot (sic) followed and my youngest and
eldest daughters were hit.
xxxx
Q: How many of the three were holding guns at that time?
A: All of them.
Q: You mean to tell the honorable court that these three persons were
having one firearm each?
A: Yes, sir.
Q: And they fired shots at the same time?
A: Yes, sir.
Q: To what direction these three persons fired (sic) their firearms
during that night?
A: To the place where we were.
Q: When those three persons were firing their respective firearms,
what was your position then?
A: I ordered my children to lie down.
Q: How about you, what was your position when you were ordering
your children to lie down?
A: (witness demonstrated his position as if covering his children with
his body and ordering them to line (sic) down face down)
Q: Mr. Witness, for how long did these three persons fire shots at your
house?
A: Less than five minutes, sir.
Q: After they fired their shots, they left your house?
A: Yes, sir.
Q: And when these persons left your house, you inspected your
children to see what happened to them?
A: Yes, sir, they were hit.
x x x17
Appellant and the two other malefactors are equally responsible for
the death of Norberto's daughters because, as ruled by the trial court,
they clearly conspired to kill Norberto's family. Conspiracy exists when
two or more persons come to an agreement regarding the
commission of a crime and decide to commit it. Proof of a prior
meeting between the perpetrators to discuss the commission of the
crime is not necessary as long as their concerted acts reveal a
common design and unity of purpose. In such case, the act of one is
the act of all.18 Here, the three men undoubtedly acted in concert as
they went to the house of Norberto together, each with his own
firearm. It is, therefore, no longer necessary to identify and prove that
it is the bullet particularly fired from appellant's firearm that killed the
children.
Murder is defined under Article 248 of the Revised Penal Code as the
unlawful killing of a person, which is not parricide or infanticide,
attended by circumstances such as treachery or evident
premeditation.19 The presence of any one of the circumstances
enumerated in Article 248 of the Code is sufficient to qualify a killing
as murder.20 The trial court correctly ruled that appellant is liable for
murder because treachery attended the killing of Norberto's two
children, thus:
xxx Evidence adduced show that the family of Norberto Divina, were
all lying down side by side about to sleep on June 6, 2002 at around
9:00 o'clock in the evening, when suddenly their wall made of sack
was stripped off by [appellant] Ireneo Jugueta, Roger San Miguel and
Gilbcrto Alegre (sic) [Gilbert Estores]. They ordered him to go out of
their house and when he refused despite his plea for mercy, they fired
at them having hit and killed his two (2) daughters. The family of
Norberto Divina were unarmed and his children were at very tender
ages. Mary Grace Divina and Claudine who were shot and killed were
13 years old and 3 lA years old respectively. In this case, the victims
were defenseless and manifestly overpowered by armed assailants
when they were gunned down. There was clear showing that the
attack was made suddenly and unexpectedly as to render the victims
helpless and unable to defend themselves. Norberto and his wife and
his children could have already been asleep at that time of the night,
xxx21
Verily, the presence of treachery qualified the killing of the hapless
children to murder. As held in People v. Fallorina,22 the essence of
treachery is the sudden and unexpected attack on an unsuspecting
victim without the slightest provocation on his part. Minor children,
who by reason of their tender years, cannot be expected to put up a
defense. When an adult person illegally attacks a child, treachery
exists.
As to the charge of multiple attempted murder, the last paragraph of
Article 6 of the Revised Penal Code states that a felony is attempted
when the offender commences the commission of a felony directly by
overt acts, and does not perform all the acts of execution which
should produce the felony by reason of some cause or accident other
than his own spontaneous desistance. In Esqueda v. People,23 the
Court held:
If one inflicts physical injuries on another but the latter survives, the
crime committed is either consummated physical injuries, if the
offender had no intention to kill the victim, or frustrated or attempted
homicide or frustrated murder or attempted murder if the offender
intends to kill the victim. Intent to kill may be proved by evidence of:
(a) motive; (b) the nature or number of weapons used in the
commission of the crime; (c) the nature and number of wounds
inflicted on the victim; (d) the manner the crime was committed; and
(e) the words uttered by the offender at the time the injuries are
inflicted by him on the victim.
In this case, the prosecution has clearly established the intent to kill
on the part of appellant as shown by the use of firearms, the words
uttered24 during, as well as the manner of, the commission of the
crime. The Court thus quotes with approval the trial court's finding that
appellant is liable for attempted murder, viz.:
In the case at bar, the perpetrators who acted in concert commenced
the felony of murder first by suddenly stripping off the wall of their
house, followed by successive firing at the intended victims when
Norberto Divina refused to go out of the house as ordered by them. If
only there were good in aiming their target, not only Mary Grace and
Claudine had been killed but surely all the rest of the family would
surely have died. Hence, perpetrators were liable for Murder of Mary
Grace Divina and Claudine Divina but for Multiple Attempted Murder
for Norberto Divina, Maricel Divina, Elizabeth Divina and Judy Ann
Divina. But as [appellant] Ireneo Jugueta was the only one charged in
this case, he alone is liable for the crime committed.25
Meanwhile, the supposed inconsistencies in Norberto's testimony, i.e.,
that he failed to state from the very beginning that all three assailants
were carrying firearms, and that it was the shots from appellant's
firearm that killed the children, are too trivial and inconsequential to
put a dent on said witness's credibility. An examination of Norberto's
testimony would show that there are no real inconsistencies to speak
of. As ruled in People v. Cabtalan,26 "[m]inor inconsistencies and
discrepancies pertaining to trivial matters do not affect the credibility
of witnesses, as well as their positive identification of the accused as
the perpetrators of the crime."27 Both the trial court and the CA found
Norberto's candid and straightforward testimony to be worthy of belief
and this Court sees no reason why it should not conform to the
principle reiterated in Medina, Jr. v. People28 that:
Time and again, this Court has deferred to the trial court's factual
findings and evaluation of the credibility of witnesses, especially when
affirmed by the CA, in the absence of any clear showing that the trial
court overlooked or misconstrued cogent facts and circumstances that
would justify altering or revising such findings and evaluation. This is
because the trial court's determination proceeds from its first-hand
opportunity to observe the demeanor of the witnesses, their conduct
and attitude under grilling examination, thereby placing the trial court
in unique position to assess the witnesses' credibility and to
appreciate their truthfulness, honesty and candor x x x.29
The records of this case, particularly the testimonies of the witnesses,
reveal no outstanding or exceptional circumstance to justify a
deviation from such long-standing principle. There is no cogent
reason to overturn the trial court's ruling that the prosecution
evidence, particularly the testimony of Norberto Divina identifying
appellant as one of the assailants, is worthy of belief. Thus, the
prosecution evidence established beyond any reasonable doubt that
appellant is one of the perpetrators of the crime.
However, the Court must make a clarification as to the nomenclature
used by the trial court to identify the crimes for which appellant was
penalized. There is some confusion caused by the trial court's use of
the terms "Double Murder" and "Multiple Attempted Murder" in
convicting appellant, and yet imposing penalties which nevertheless
show that the trial court meant to penalize appellant for two (2)
separate counts of Murder and four (4) counts of Attempted Murder.
The facts, as alleged in the Information in Criminal Case No. 7698-G,
and as proven during trial, show that appellant is guilty of 2 counts of
the crime of Murder and not Double Murder, as the killing of the
victims was not the result of a single act but of several acts of
appellant and his cohorts. In the same vein, appellant is also guilty of
4 counts of the crime of Attempted Murder and not Multiple Attempted
Murder in Criminal Case No. 7702-G. It bears stressing that the
Informations in this case failed to comply with the requirement in
Section 13, Rule 110 of the Revised Rules of Court that an
information must charge only one offense.
As a general rule, a complaint or information must charge only one
offense, otherwise, the same is defective. The reason for the rule is
stated in People of the Philippines and AAA v. Court of Appeals,
21st Division, Mindanao Station, et al.,30 thus:
The rationale behind this rule prohibiting duplicitous complaints or
informations is to give the accused the necessary knowledge of the
charge against him and enable him to sufficiently prepare for his
defense. The State should not heap upon the accused two or more
charges which might confuse him in his defense. Non-compliance with
this rule is a ground for quashing the duplicitous complaint or
information under Rule 117 of the Rules on Criminal Procedure and
the accused may raise the same in a motion to quash before he
enters his plea, otherwise, the defect is deemed waived.
However, since appellant entered a plea of not guilty during
arraignment and failed to move for the quashal of the Informations, he
is deemed to have waived his right to question the same. Section 9 of
Rule 117 provides that "[t]he failure of the accused to assert any
ground of a motion to quash before he pleads to the complaint or
information, either because he did not file a motion to quash or failed
to allege the same in said motion, shall be deemed a waiver of any
objections except those based on the grounds provided for in
paragraphs (a), (b), (g), and (i) of Section 3 of this Rule."
It is also well-settled that when two or more offenses are charged in a
single complaint or information but the accused fails to object to it
before trial, the court may convict him of as many offenses as are
charged and proved, and impose upon him the proper penalty for
each offense.31 Appellant can therefore be held liable for all the crimes
alleged in the Informations in Criminal Case Nos. 7698-G and 7702-
G, i.e., 2 counts of murder and 4 counts of attempted murder,
respectively, and proven during trial.
Meanwhile, in People v. Nelmida,32 the Court explained the concept of
a complex crime as defined in Article 4833 of the Revised Penal Code,
thus:
In a complex crime, two or more crimes are actually committed,
however, in the eyes of the law and in the conscience of the offender
they constitute only one crime, thus, only one penalty is imposed.
There are two kinds of complex crime. The first is known as a
compound crime, or when a single act constitutes two or more grave
or less grave felonies while the other is known as a complex crime
proper, or when an offense is a necessary means for committing the
other. The classic example of the first kind is when a single bullet
results in the death of two or more persons. A different rule governs
where separate and distinct acts result in a number killed. Deeply
rooted is the doctrine that when various victims expire from separate
shot, such acts constitute separate and distinct crimes.34
Here, the facts surrounding the shooting incident clearly show that
appellant and the two others, in firing successive and indiscriminate
shots at the family of Norberto from their respective firearms, intended
to kill not only Norberto, but his entire family. When several gunmen,
as in this case, indiscriminately fire a series of shots at a group of
people, it shows their intention to kill several individuals. Hence, they
are committing not only one crime. What appellant and his cohorts
committed cannot be classified as a complex crime because as held
in People v. Nelmida,35 "each act by each gunman pulling the trigger
of their respective firearms, aiming each particular moment at different
persons constitute distinct and individual acts which cannot give rise
to a complex crime."36
Furthermore, the Court notes that both the trial court and the CA failed
to take into account dwelling as an ordinary, aggravating
circumstance, despite the fact that the Informations in Criminal Case
Nos. 7698-G and 7702-G contain sufficient allegations to that effect,
to wit:
Criminal Case No. 7698-G for Double Murder:
That the crime was committed in the dwelling of the offended
party who had not given provocation for the attack and the accused
took advantage of nighttime to facilitate the commission of the
offense.37ChanRoblesVirtualawlibrary

Criminal Case No. 7702-G for Multiple Attempted Murder:
xxx the above-named accused, conspiring and confederating together
and mutually helping one another, armed with short firearms of
undetermined calibres, with intent to kill, qualified by treachery, with
evident premeditation and abuse of superior strength, did then and
there wilfully, unlawfully and feloniously attack, assault, and shoot with
the said firearms the house occupied by the family of Norberto Divina,
thereby commencing the commission of the crime of Murder, directly
by overt acts, but did not perform all the acts of execution which would
have produced it by reason of some cause or accident other than the
spontaneous desistance of the accused x x
x38ChanRoblesVirtualawlibrary
In People v. Agcanas,39 the Court stressed that "[i]t has been held in a
long line of cases that dwelling is aggravating because of the sanctity
of privacy which the law accords to human abode. He who goes to
another's house to hurt him or do him wrong is more guilty than he
who offends him elsewhere." Dwelling aggravates a felony where the
crime is committed in the dwelling of the offended party provided that
the latter has not given provocation therefor.40 The testimony of
Norberto established the fact that the group of appellant violated the
victims' home by destroying the same and attacking his entire family
therein, without provocation on the part of the latter. Hence, the trial
court should have appreciated dwelling as an ordinary aggravating
circumstance.
In view of the attendant ordinary aggravating circumstance, the Court
must modify the penalties imposed on appellant. Murder is punishable
by reclusion perpetua to death, thus, with an ordinary aggravating
circumstance of dwelling, the imposable penalty is death for each of
two (2) counts of murder.41 However, pursuant to Republic Act (RA)
No. 9346, proscribing the imposition of the death penalty, the penalty
to be imposed on appellant should be reclusion perpetua for each of
the two (2) counts of murder without eligibility for parole. With regard
to the four (4) counts of attempted murder, the penalty prescribed for
each count is prision mayor. With one ordinary aggravating
circumstance, the penalty should be imposed in its maximum period.
Applying the Indeterminate Sentence Law, the maximum penalty
should be from ten (10) years and one (1) day to twelve (12) years
of prision mayor, while the minimum shall be taken from the penalty
next lower in degree, i.e., prision correccional, in any of its periods, or
anywhere from six (6) months and one (1) day to six (6) years. This
Court finds it apt to impose on appellant the indeterminate penalty of
four (4) years, two (2) months and one (1) day of prision
correccional, as minimum, to ten (10) years and one (1) day of prision
mayor, as minimum, for each of the four (4) counts of attempted
murder.
Anent the award of damages, the Court deems it proper to address
the matter in detail as regards criminal cases where the imposable
penalty is reclusion perpetua to death. Generally, in these types of
criminal cases, there are three kinds of damages awarded by the
Court; namely: civil indemnity, moral, and exemplary damages.
Likewise, actual damages may be awarded or temperate damages in
some instances.
First, civil indemnity ex delicto is the indemnity authorized in our
criminal law for the offended party, in the amount authorized by the
prevailing judicial policy and apart from other proven actual damages,
which itself is equivalent to actual or compensatory damages in civil
law.42
This award stems from Article 100 of the RPC which states, "Every
person criminally liable for a felony is also civilly liable."
It is to be noted that civil indemnity is, technically, not a penalty or a
fine; hence, it can be increased by the Court when
appropriate.43 Article 2206 of the Civil Code provides:
Art. 2206. The amount of damages for death caused by a crime or
quasi-delict shall be at least three thousand pesos, even though there
may have been mitigating circumstances. In addition:
(1) The defendant shall be liable for the loss of the earning capacity of
the deceased, and the indemnity shall be paid to the heirs of the
latter; such indemnity shall in every case be assessed and awarded
by the court, unless the deceased on account of permanent physical
disability not caused by the defendant, had no earning capacity at the
time of his death;
(2) If the deceased was obliged to give support according to the
provisions of Article 291, the recipient who is not an heir called to the
decedent's inheritance by the law of testate or intestate succession,
may demand support from the person causing the death, for a period
not exceeding five years, the exact duration to be fixed by the court;
(3) The spouse, legitimate and illegitimate descendants and
ascendants of the deceased may demand moral damages for mental
anguish by reason of the death of the deceased.
In our jurisdiction, civil indemnity is awarded to the offended party as a
kind of monetary restitution or compensation to the victim for the
damage or infraction that was done to the latter by the accused, which
in a sense only covers the civil aspect. Precisely, it is civil indemnity.
Thus, in a crime where a person dies, in addition to the penalty of
imprisonment imposed to the offender, the accused is also ordered to
pay the victim a sum of money as restitution. Also, it is apparent from
Article 2206 that the law only imposes a minimum amount for awards
of civil indemnity, which is P3,000.00. The law did not provide for a
ceiling. Thus, although the minimum amount for the award cannot be
changed, increasing the amount awarded as civil indemnity can be
validly modified and increased when the present circumstance
warrants it.44
The second type of damages the Court awards are moral damages,
which are also compensatory in nature. Del Mundo v. Court of
Appeals45 expounded on the nature and purpose of moral
damages, viz.:
Moral damages, upon the other hand, may be awarded to
compensate one for manifold injuries such as physical suffering,
mental anguish, serious anxiety, besmirched reputation, wounded
feelings and social humiliation. These damages must be understood
to be in the concept of grants, not punitive or corrective in nature,
calculated to compensate the claimant for the injury suffered.
Although incapable of exactness and no proof of pecuniary loss is
necessary in order that moral damages may be awarded, the amount
of indemnity being left to the discretion of the court, it is imperative,
nevertheless, that (1) injury must have been suffered by the claimant,
and (2) such injury must have sprung from any of the cases
expressed in Article 221946 and Article 222047 of the Civil Code, x x x.
Similarly, in American jurisprudence, moral damages are treated as
"compensatory damages awarded for mental pain and suffering or
mental anguish resulting from a wrong."48 They may also be
considered and allowed "for resulting pain and suffering, and for
humiliation, indignity, and vexation suffered by the plaintiff as result of
his or her assailant's conduct, as well as the factors of provocation,
the reasonableness of the force used, the attendant humiliating
circumstances, the sex of the victim, [and] mental distress."49
The rationale for awarding moral damages has been explained in
Lambert v. Heirs ofRey Castillon: "[T]he award of moral damages is
aimed at a restoration, within the limits possible, of the spiritual status
quo ante; and therefore, it must be proportionate to the suffering
inflicted."50
Corollarily, moral damages under Article 222051 of the Civil Code also
does not fix the amount of damages that can be awarded. It is
discretionary upon the court, depending on the mental anguish or the
suffering of the private offended party. The amount of moral damages
can, in relation to civil indemnity, be adjusted so long as it does not
exceed the award of civil indemnity.52
Finally, the Civil Code of the Philippines provides, in respect to
exemplary damages, thus:
ART. 2229. Exemplary or corrective damages are imposed, by way of
example or correction for the public good, in addition to the moral,
temperate, liquidated or compensatory damages.
ART. 2230. In criminal offenses, exemplary damages as a part of the
civil liability may be imposed when the crime was committed with one
or more aggravating circumstances. Such damages are separate and
distinct from fines and shall be paid to the offended party.
Also known as "punitive" or "vindictive" damages, exemplary or
corrective damages are intended to serve as a deterrent to serious
wrong doings, and as a vindication of undue sufferings and wanton
invasion of the rights of an injured or a punishment for those guilty of
outrageous conduct. These terms are generally, but not always, used
interchangeably. In common law, there is preference in the use of
exemplary damages when the award is to account for injury to
feelings and for the sense of indignity and humiliation suffered by a
person as a result of an injury that has been maliciously and wantonly
inflicted,53 the theory being that there should be compensation for the
hurt caused by the highly reprehensible conduct of the defendant —
associated with such circumstances as willfulness, wantonness,
malice, gross negligence or recklessness, oppression, insult or fraud
or gross fraud54 - that intensifies the injury. The terms punitive or
vindictive damages are often used to refer to those species of
damages that may be awarded against a person to punish him for his
outrageous conduct. In either case, these damages are intended in
good measure to deter the wrongdoer and others like him from similar
conduct in the future.55
The term aggravating circumstances used by the Civil Code, the law
not having specified otherwise, is to be understood in its broad or
generic sense. The commission of an offense has a two-pronged
effect, one on the public as it breaches the social order and the other
upon the private victim as it causes personal sufferings, each of which
is addressed by, respectively, the prescription of heavier punishment
for the accused and by an award of additional damages to the victim.
The increase of the penalty or a shift to a graver felony underscores
the exacerbation of the offense by the attendance of aggravating
circumstances, whether ordinary or qualifying, in its commission.
Unlike the criminal liability which is basically a State concern, the
award of damages, however, is likewise, if not primarily, intended for
the offended party who suffers thereby. It would make little sense for
an award of exemplary damages to be due the private offended party
when the aggravating circumstance is ordinary but to be withheld
when it is qualifying. Withal, the ordinary or qualifying nature of an
aggravating circumstance is a distinction that should only be of
consequence to the criminal, rather than to the civil, liability of the
offender. In fine, relative to the civil aspect of the case, an aggravating
circumstance, whether ordinary or qualifying, should entitle the
offended party to an award of exemplary damages within the
unbridled meaning of Article 2230 of the Civil Code.56
The reason is fairly obvious as to why the Revised Rules of Criminal
Procedure57 requires aggravating circumstances, whether ordinary or
qualifying, to be stated in the complaint or information. It is in order
not to trample on the constitutional right of an accused to be informed
of the nature of the alleged offense that he or she has committed. A
criminal complaint or information should basically contain the
elements of the crime, as well as its qualifying and ordinary
aggravating circumstances, for the court to effectively determine the
proper penalty it should impose. This, however, is not similar in the
recovery of civil liability. In the civil aspect, the presence of an
aggravating circumstance, even if not alleged in the information but
proven during trial would entitle the victim to an award of exemplary
damages.
Being corrective in nature, exemplary damages, therefore, can be
awarded, not only due to the presence of an aggravating
circumstance, but also where the circumstances of the case show the
highly reprehensible or outrageous conduct of the offender. In much
the same way as Article 2230 prescribes an instance when exemplary
damages may be awarded, Article 2229, the main provision, lays
down the very basis of the award. Thus, in People v, Matrimonio,58 the
Court imposed exemplary damages to deter other fathers with
perverse tendencies or aberrant sexual behavior from sexually
abusing their own daughters. Also, in People v. Cristobal,59 the Court
awarded exemplary damages on account of the moral corruption,
perversity and wickedness of the accused in sexually assaulting a
pregnant married woman. In People v. Cañada,60People v.
Neverio61 and People v. Layco, Sr. ,62 the Court awarded exemplary
damages to set a public example, to serve as deterrent to elders who
abuse and corrupt the youth, and to protect the latter from sexual
abuse.
Existing jurisprudence pegs the award of exemplary damages at
P30,000.00,63 despite the lack of any aggravating circumstance. The
Court finds it proper to increase the amount to P50,000.00 in order to
deter similar conduct.
If, however, the penalty for the crime committed is death, which
cannot be imposed because of the provisions of R.A. No. 9346,
prevailing jurisprudence64 sets the amount of P100,000.00 as
exemplary damages.
Before awarding any of the above mentioned damages, the Court,
however, must first consider the penalty imposed by law. Under RA
7659 or An Act to Impose the Death Penalty on Certain Heinous
Crimes, Amending for that Purpose the Revised Penal Laws, and for
Other Purposes, certain crimes under the RPC and special penal laws
were amended to impose the death penalty under certain
circumstances.65 Under the same law, the following crimes are
punishable by reclusion perpetua: piracy in general,66 mutiny on the
high seas,67 and simple rape.68 For the following crimes, RA 7659 has
imposed the penalty of reclusion perpetua to death: qualified
piracy;69 qualified bribery under certain
circumstances;70 parricide;71 murder;72 infanticide, except when
committed by the mother of the child for the purpose of concealing her
dishonor or either of the maternal grandparents for the same
purpose;73 kidnapping and serious illegal detention under certain
circumstances;74 robbery with violence against or intimidation of
persons under certain circumstances;75 destructive arson, except
when death results as a consequence of the commission of any of the
acts penalized under the article;76 attempted or frustrated rape, when
a homicide is committed by reason or on occasion thereof; plunder;
and carnapping, when the driver or occupant of the carnapped motor
vehicle is killed or raped in the course of the commission of the
carnapping or on the occasion thereof.78 Finally, RA 7659 imposes the
death penalty on the following crimes:
(a) In qualified bribery, when it is the public officer who asks or
demands the gift or present.
b) In kidnapping and serious illegal detention: (i) when the kidnapping
or detention was committed for the purpose of extorting ransom from
the victim or any other person; (ii) when the victim is killed or dies as a
consequence of the detention; (iii) when the victim is raped, subjected
to torture or dehumanizing acts.
(c) In destructive arson, when as a consequence of the commission of
any of the acts penalized under Article 320, death results.
(d) In rape: (i) when by reason or on occasion of the rape, the victim
becomes insane or homicide is committed; (ii) when committed with
any of the following attendant circumstances: (1) when the victim is
under eighteen (18) years of age and the offender is a parent,
ascendant, step-parent, guardian, relative by consanguinity or affinity
within the third civil degree, or the common-law-spouse of the parent
of the victim; (2) when the victim is under the custody of the police or
military authorities; (3) when the rape is committed in full view of the
husband, parent, any of the children or other relatives within the third
degree of consanguinity; (4) when the victim is a religious or a child
below seven years old; (5) when the offender knows that he is
afflicted with Acquired Immune Deficiency Syndrome (AIDS) disease;
(6) when committed by any member of the Armed Forces of the
Philippines or the Philippine National Police or any law enforcement
agency; and (7) when by reason or on the occasion of the rape, the
victim has suffered permanent physical mutilation.
From these heinous crimes, where the imposable penalties consist of
two (2) indivisible penalties or single indivisible penalty, all of them
must be taken in relation to Article 63 of the RPC, which provides:
Article 63. Rules for the application of indivisible penalties. - In all
cases in which the law prescribes a single indivisible penalty, it shall
be applied by the courts regardless of any mitigating or aggravating
circumstances that may have attended the commission of the deed.
In all cases in which the law prescribes a penalty composed of two
indivisible penalties, the following rules shall be observed in the
application thereof:
1. when in the commission of the deed there is present only one
aggravating circumstance, the greater penalty shall be applied.
2. when there are neither mitigating nor aggravating circumstances in
the commission of the deed, the lesser penalty shall be applied.
3. when the commission of the act is attended by some mitigating
circumstance and there is no aggravating circumstance, the lesser
penalty shall be applied.
4. when both mitigating and aggravating circumstances attended the
commission of the act, the courts shall reasonably allow them to offset
one another in consideration of their number and importance, for the
purpose of applying the penalty in accordance with the preceding
rules, according to the result of such compensation. (Revised Penal
Code, Art. 63)
Thus, in order to impose the proper penalty, especially in cases of
indivisible penalties, the court has the duty to ascertain the presence
of any mitigating or aggravating circumstances. Accordingly, in crimes
where the imposable penalty is reclusion perpetua to death, the court
can impose either reclusion perpetua or death, depending on the
mitigating or aggravating circumstances present.
But with the enactment of RA 9346 or An Act Prohibiting the
Imposition of Death Penalty in the Philippines, the imposition of death
penalty is now prohibited. It provides that in lieu of the death penalty,
the penalty of reclusion perpetua shall be imposed when the law
violated makes use of the nomenclature of the penalties of the RPC.79
As a result, the death penalty can no longer be imposed. Instead, they
have to impose reclusion perpetua. Despite this, the principal
consideration for the award of damages, following the ruling in People
v. Salome80 and People v. Quiachon81 is "the penalty provided by law
or imposable for the offense because of its heinousness, not the
public penalty actually imposed on the offender."82
When the circumstances surrounding the crime would justify the
imposition of the death penalty were it not for RA 9346, the Court has
ruled, as early as July 9, 1998 in People v. Victor83 that the award of
civil indemnity for the crime of rape -when punishable by death should
be P75,000.00 We reasoned that "[t]his is not only a reaction to the
apathetic societal perception of the penal law and the financial
fluctuations over time, but also an expression of the displeasure of the
Court over the incidence of heinous crimes against chastity."84 Such
reasoning also applies to all heinous crimes found in RA 7659. The
amount was later increased to P100,000.00.85
In addition to this, the Court likewise awards moral damages.
In People v. Arizapa86 P50,000.00 was awarded as moral damages
without need of pleading or proving them, for in rape cases, it is
recognized that the victim's injury is concomitant with and necessarily
results from the odious crime of rape to warrant per se the award of
moral damages.87 Subsequently, the amount was increased to
P75,000.00 in People v. Soriano88 and P100,000.00 in People v.
Gambao89
Essentially, despite the fact that the death penalty cannot be imposed
because of RA 9346, the imposable penalty as provided by the law for
the crime, such as those found in RA 7569, must be used as the basis
for awarding damages and not the actual penalty imposed.
Again, for crimes where the imposable penalty is death in view of the
attendance of an ordinary aggravating circumstance but due to the
prohibition to impose the death penalty, the actual penalty imposed
is reclusion perpetna, the latest jurisprudence90 pegs the amount of
P100,000.00 as civil indemnity and P100,0000.00 as moral damages.
For the qualifying aggravating circumstance and/or the ordinary
aggravating circumstances present, the amount of P100,000.00 is
awarded as exemplary damages aside from civil indemnity and moral
damages. Regardless of the attendance of qualifying aggravating
circumstance, the exemplary damages shall be fixed at P100,000.00.
"[T]his is not only a reaction to the apathetic societal perception of the
penal law and the financial fluctuation over time, but also an
expression of the displeasure of the Court over the incidence of
heinous crimes x x x."91
When the circumstances surrounding the crime call for the imposition
of reclusion perpetua only, there being no ordinary aggravating
circumstance, the Court rules that the proper amounts should be
P75,000.00 as civil indemnity, P75,000.00 as moral damages and
P75,000.00 exemplary damages, regardless of the number of
qualifying aggravating circumstances present.
When it comes to compound and complex crimes, although the single
act done by the offender caused several crimes, the fact that those
were the result of a single design, the amount of civil indemnity and
moral damages will depend on the penalty and the number of victims.
For each of the victims, the heirs should be properly compensated. If
it is multiple murder without any ordinary aggravating circumstance
but merely a qualifying aggravating circumstance, but the penalty
imposed is death because of Art. 48 of the RPC wherein the
maximum penalty shall be imposed,92 then, for every victim who dies,
the heirs shall be indemnified with P100,000.00 as civil indemnity,
P100,000.00 as moral damages and P100,000.00 as exemplary
damages.
In case of a special complex crime, which is different from a complex
crime under Article 48 of the RPC, the following doctrines are
noteworthy:
In People of the Philippines v. Conrado Laog,93 this Court ruled that
special complex crime, or more properly, a composite crime, has its
own definition and special penalty in the Revised Penal Code, as
amended. Justice Regalado, in his Separate Opinion in the case
of People v. Barros,94 explained that composite crimes are "neither of
the same legal basis as nor subject to the rules on complex crimes in
Article 48 [of the Revised Penal Code], since they do not consist of a
single act giving rise to two or more grave or less grave felonies
[compound crimes] nor do they involve an offense being a necessary
means to commit another [complex crime proper]. However, just like
the regular complex crimes and the present case of aggravated illegal
possession of firearms, only a single penalty is imposed for each of
such composite crimes although composed of two or more
offenses."95
In People v. De Leon,96 we expounded on the special complex crime
of robbery with homicide, as follows:
In robbery with homicide, the original criminal design of the malefactor
is to commit robbery, with homicide perpetrated on the occasion or by
reason of the robbery. The intent to commit robbery must precede the
taking of human life. The homicide may take place before, during or
after the robbery. It is only the result obtained, without reference or
distinction as to the circumstances, causes or modes or persons
intervening in the commission of the crime that has to be taken into
consideration. There is no such felony of robbery with homicide
through reckless imprudence or simple negligence. The constitutive
elements of the crime, namely, robbery with homicide, must be
consummated.
It is immaterial that the death would supervene by mere accident; or
that the victim of homicide is other than the victim of robbery, or that
two or more persons are killed, or that aside from the homicide, rape,
intentional mutilation, or usurpation of authority, is committed by
reason or on the occasion of the crime. Likewise immaterial is the fact
that the victim of homicide is one of the robbers; the felony would still
be robbery with homicide. Once a homicide is committed by or on the
occasion of the robbery, the felony committed is robbery with
homicide. All the felonies committed by reason of or on the occasion
of the robbery are integrated into one and indivisible felony of robbery
with homicide. The word "homicide" is used in its generic sense.
Homicide, thus, includes murder, parricide, and infanticide.97
In the special complex crime of rape with homicide, the term
"homicide" is to be understood in its generic sense, and includes
murder and slight physical injuries committed by reason or on
occasion of the rape.98 Hence, even if any or all of the circumstances
(treachery, abuse of superior strength and evident premeditation)
alleged in the information have been duly established by the
prosecution, the same would not qualify the killing to murder and the
crime committed by appellant is still rape with homicide. As in the
case of robbery with homicide, the aggravating circumstance of
treachery is to be considered as a generic aggravating circumstance
only. Thus we ruled in People v. Macabales:99
Finally, appellants contend that the trial court erred in concluding that
the aggravating circumstance of treachery is present. They aver that
treachery applies to crimes against persons and not to crimes against
property. However, we find that the trial court in this case correctly
characterized treachery as a generic aggravating, rather than
qualifying, circumstance. Miguel was rendered helpless by appellants
in defending himself when his arms were held by two of the attackers
before he was stabbed with a knife by appellant Macabales, as their
other companions surrounded them. In People v. Salvatierra, we ruled
that when alevosia (treachery) obtains in the special complex crime of
robbery with homicide, such treachery is to be regarded as a generic
aggravating circumstance. Robbery with homicide is a composite
crime with its own definition and special penalty in the Revised Penal
Code. There is no special complex crime of robbery with murder
under the Revised Penal Code. Here, treachery forms part of the
circumstances proven concerning the actual commission of the
complex crime. Logically it could not qualify the homicide to murder
but, as generic aggravating circumstance, it helps determine the
penalty to be imposed.100
Applying the above discussion on special complex crimes, if the
penalty is death but it cannot be imposed due to RA 9346 and what is
actually imposed is the penalty of reclusion perpetua, the civil
indemnity and moral damages will be P100,000.00 each, and another
P100,000.00 as exemplary damages in view of the heinousness of the
crime and to set an example. If there is another composite crime
included in a special complex crime and the penalty imposed is death,
an additional P100,000.00 as civil indemnity, P100,000.00 moral
damages and P100,000.00 exemplary damages shall be awarded for
each composite crime committed.
For example, in case of Robbery with Homicide101 wherein three (3)
people died as a consequence of the crime, the heirs of the victims
shall be entitled to the award of damages as discussed earlier. This is
true, however, only if those who were killed were the victims of the
robbery or mere bystanders and not when those who died were the
perpetrators or robbers themselves because the crime of robbery with
homicide may still be committed even if one of the robbers
dies.102 This is also applicable in robbery with rape where there is
more than one victim of rape.
In awarding civil indemnity and moral damages, it is also important to
determine the stage in which the crime was committed and proven
during the trial. Article 6 of the RPC provides:
Art. 6. Consummated, frustrated, and attempted felonies.
-Consummated felonies, as well as those which are frustrated and
attempted, are punishable.
A felony is consummated when all the elements necessary for its
execution and accomplishment are present; and it is frustrated when
an offender performs all the acts of execution which would produce
the felony as a consequence but which, nevertheless, do not produce
it by reason of causes independent of the will of the perpetrator.
There is an attempt when the offender commences the commission of
a felony directly by overt acts, and does not perform all the acts of
execution which should produce the felony by reason of some cause
or accident other than his own spontaneous desistance.
As discussed earlier, when the crime proven is consummated and the
penalty imposed is death but reduced to reclusion perpetua because
of R.A. 9346, the civil indemnity and moral damages that should be
awarded will each be P100,000.00 and another P100,000.00 for
exemplary damages or when the circumstances of the crime call for
the imposition of reclusion perpetua only, the civil indemnity and
moral damages should be P75,000.00 each, as well as exemplary
damages in the amount of P75,000.00. If, however, the crime proven
is in its frustrated stage, the civil indemnity and moral damages that
should be awarded will each be P50,000.00, and an award of
P25,000.00 civil indemnity and P25,000.00 moral damages when the
crime proven is in its attempted stage. The difference in the amounts
awarded for the stages is mainly due to the disparity in the outcome of
the crime committed, in the same way that the imposable penalty
varies for each stage of the crime. The said amounts of civil indemnity
and moral damages awarded in cases of felonies in their frustrated or
attempted stages shall be the bases when the crimes committed
constitute complex crime under Article 48 of the RPC. For example, in
a crime of murder with attempted murder, the amount of civil
indemnity, moral damages and exemplary damages is P100,000.00
each, while in the attempted murder, the civil indemnity, moral
damages and exemplary damages is P25,000.00 each.
In a special complex crime, like robbery with homicide, if, aside from
homicide, several victims (except the robbers) sustained injuries, they
shall likewise be indemnified. It must be remembered that in a special
complex crime, unlike in a complex crime, the component crimes have
no attempted or frustrated stages because the intention of the
offender/s is to commit the principal crime which is to rob but in the
process of committing the said crime, another crime is committed. For
example, if on the occasion of a robbery with homicide, other victims
sustained injuries, regardless of the severity, the crime committed is
still robbery with homicide as the injuries become part of the crime,
"Homicide", in the special complex crime of robbery with homicide, is
understood in its generic sense and now forms part of the essential
element of robbery,103 which is the use of violence or the use of force
upon anything. Hence, the nature and severity of the injuries
sustained by the victims must still be determined for the purpose of
awarding civil indemnity and damages. If a victim suffered mortal
wounds and could have died if not for a timely medical intervention,
the victim should be awarded civil indemnity, moral damages, and
exemplary damages equivalent to the damages awarded in a
frustrated stage, and if a victim suffered injuries that are not fatal, an
award of civil indemnity, moral damages and exemplary damages
should likewise be awarded equivalent to the damages awarded in an
attempted stage.
In other crimes that resulted in the death of a victim and the penalty
consists of divisible penalties, like homicide, death under tumultuous
affray, reckless imprudence resulting to homicide, the civil indemnity
awarded to the heirs of the victim shall be P50,000.00 and
P50,000.00 moral damages without exemplary damages being
awarded. However, an award of P50,000.00 exemplary damages in a
crime of homicide shall be added if there is an aggravating
circumstance present that has been proven but not alleged in the
information.
Aside from those discussed earlier, the Court also awards temperate
damages in certain cases. The award of P25,000.00 as temperate
damages in homicide or murder cases is proper when no evidence of
burial and funeral expenses is presented in the trial court.104 Under ii. Exemplary damages - P50,000.00
Article 2224 of the Civil Code, temperate damages may be recovered, iii. Exemplary damages - P50,000.00
as it cannot be denied that the heirs of the victims suffered pecuniary
loss although the exact amount was not proved.105 In this case, the
Court now increases the amount to be awarded as temperate
2.1 Where the penalty imposed is reclusion perpetua, other than the
damages to P50,000.00.
above-mentioned:
In the case at bar, the crimes were aggravated by dwelling, and the
murders committed were further made atrocious by the fact that the a. Civil indemnity -P75,000.00
victims are innocent, defenseless minors — one is a mere 3 1/2-year- b. Moral damages - P75,000.00
old toddler, and the other a 13-year-old girl. The increase in the c. Exemplary damages - P75,000.00
amount of awards for damages is befitting to show not only the
Court's, but all of society's outrage over such crimes and wastage of
lives. 2.2 Where the crime committed was not consummated:

In summary:
a. Frustrated:
I. For those crimes106 like, Murder,107 Parricide,108 Serious Intentional
Mutilation,109 Infanticide,110 and other crimes involving death of a victim i. Civil indemnity - P50,000.00
where the penalty consists of indivisible penalties: ii. Moral damages - P50,000.00
iii. Exemplary damages - P50,000.00
1.1 Where the penalty imposed is death but reduced to reclusion
perpetua because of RA 9346:

a. Civil indemnity-P100,000.00
b. Moral damages - P100,000.00 b. Attempted:
c. Exemplary damages -P100,000.00
i. Civil indemnity-P25,000.00
1.2 Where the crime committed was not consummated: ii. Moral damages - P25,000.00
iii. Exemplary damages - P25,000.00
a. Frustrated:

i. Civil indemnity - P75,000.00 II. For Simple Rape/Qualified Rape:

ii. Moral damages - P75,000.00
1.1 Where the penalty imposed is Death but reduced to reclusion
iii. Exemplary damages — P75,000.00
perpetua because of RA 9346:

a. Civil indemnity-P100,000.00
b. Moral damages - P100,000.00
b. Attempted:
c. Exemplary damages"111 -P100,000.00
i. Civil indemnity-P50,000.00
1.2 Where the crime committed was not consummated but merely 1.2 Where the penalty imposed is reclusion perpetua, other than the
attempted:"112 above-mentioned:

a. Civil indemnity-P50.000.00 a. Civil indemnity-P75,000.00

b. Moral damages - P50,000.00 b. Moral damages - P75,000.00
c. Exemplary damages - P50,000.00 c. Exemplary damages - P75,000.00

2.1 Where the penalty imposed is reclusion perpetua, other than the The above Rules apply to every victim who dies as a result of the
above-mentioned: crime committed. In other complex crimes where death does not
result, like in Forcible Abduction with Rape, the civil indemnity, moral
a. Civil indemnity - P75,000.00 and exemplary damages depend on the prescribed penalty and the
penalty imposed, as the case may be.
b. Moral damages - P75,000.00
c. Exemplary damages - P75,000.00 IV. For Special Complex Crimes like Robbery with
Homicide,113 Robbery with Rape,114 Robbery with Intentional
Mutilation,115 Robbery with Arson,116 Rape with
2.2 Where the crime committed was not consummated, but merely Flomicide,117 Kidnapping with Murder,118 Carnapping with
attempted: Homicide119 or Carnapping with Rape,120 Highway Robbery with
Homicide.121 Qualified Piracy,122 Arson with Homicide,123 Hazing with
a. Civil indemnity-P25,000.00 Death, Rape, Sodomy or Mutilation124 and other crimes with death,
b. Moral damages-P25,000.00 injuries, and sexual abuse as the composite crimes, where the penalty
consists of indivisible penalties:
c. Exemplary damages - P25,000.00
1.1 Where the penalty imposed is Death but reduced to reclusion
perpetua because of RA 9346:
III. For Complex crimes under Article 48 of the Revised Penal Code
where death, injuries, or sexual abuse results, the civil indemnity,
moral damages and exemplary damages will depend on the penalty, a. Civil indemnity-P100,000.00
extent of violence and sexual abuse; and the number of victims where b. Moral damages - P100,000.00
the penalty consists of indivisible penalties: c. Exemplary damages - P100,000.00

1.1 Where the penalty imposed is Death but reduced to reclusion

perpetua because of RA 9346: In Robbery with Intentional Mutilation, the amount of damages is the
same as the above if the penalty imposed is Death but reduced
a. Civil indemnity-P100,000.00 to reclusion perpetua although death did not occur.
b. Moral damages - P100,000.00
1.2 For the victims who suffered mortal/fatal wounds125 and could
c. Exemplary damages - P100,000.00
have died if not for a timely medical intervention, the following shall be
awarded:
a. Civil indemnity - P75,000.00 In Robbery with Physical Injuries,126 the amount of damages shall
b. Moral damages - P75,000.00 likewise be dependent on the nature/severity of the wounds
sustained, whether fatal or non-fatal.
c. Exemplary damages - P75,000.00
The: above Rules do not apply if in the crime of Robbery with
Homicide, the robber/s or perpetrator/s are themselves killed or
1.3 For the victims who suffered non-mortal/non-fatal injuries: injured in the incident.

a. Civil indemnity - P50,000.00 Where the component crime is rape, the above Rules shall likewise
b. Moral damages - P50,000.00 apply, and that for every additional rape committed, whether against
c. Exemplary damages - P50,000.00 the same victim or other victims, the victims shall be entitled to the
same damages unless the other crimes of rape are treated as
separate crimes, in which case, the damages awarded to simple
rape/qualified rape shall apply.
2.1 Where the penalty imposed is reclusion perpetua, other than the
above-mentioned:
V. In other crimes that result in the death of a victim and the penalty
consists of divisible penalties, i.e., Homicide, Death under Tumultuous
a. a. Civil indemnity - P75,000.00 Affray, Infanticide to conceal the dishonour of the
b. Moral damages - P75,000.00 offender,127 Reckless Imprudence Resulting to Homicide, Duel,
c. Exemplary damages - P75,000.00 Intentional Abortion and Unintentional Abortion, etc.:

1.1 Where the crime was consummated:

In Robbery with Intentional Mutilation, the amount of damages is the chanRoblesvirtualLawlibrary
same as the above if the penalty imposed is reclusion perpetua. a. Civil indemnity - P50,000.00
b. Moral damages - P50,000.00
2.2 For the victims who suffered mortal/fatal wounds and could have
died if not for a timely medical intervention, the following shall be 1.2 Where the crime committed was not consummated, except those
awarded: crimes where there are no stages, i.e., Reckless Imprudence and
Death under tumultuous affray:
a. Civil indemnity -P50,000.00
b. Moral damages - P50,000.00 a. Frustrated:
c. Exemplary damages -P50,000.00 chanRoblesvirtualLawlibrary
i. Civil indemnity -P30,000.00
ii. Moral damages-P30,000.00
2.3 For the victims who suffered non-mortal/non-fatal injuries: b. Attempted:
chanRoblesvirtualLawlibrary
a. Civil indemnity -P25,000.00 i. Civil indemnity-P20,000.00
b. Moral damages - P25,000.00 ii. Moral damages - P20,000.00
c. Exemplary damages — P25,000.00 If an aggravating circumstance was proven during the trial, even if not
alleged in the Information,128 in addition to the above mentioned
amounts as civil indemnity and moral damages, the amount of
P50,000.00 exemplary damages for consummated; P30,000.00 for
frustrated; and P20,000.00 for attempted, shall be awarded.
VI. A. In the crime of Rebellion where the imposable penalty
is reclusion perpetua and death occurs in the course of the rebellion,
the heirs of those who died are entitled to the following:129
a. Civil indemnity-P100,000.00
b. Moral damages - P100,000.00
c. Exemplary damages - P100,000.00l30
B. For the victims who suffered mortal/fatal wounds in the course of
the rebellion and could have died if not for a timely medical
intervention, the following shall be awarded:
chanRoblesvirtualLawlibrary
a. Civil indemnity - P75,000.00
b. Moral damages - P75,000.00
c. Exemplary damages - P75,000.00
C. For the victims who suffered non-mortal/non-fatal injuries:
chanRoblesvirtualLawlibrary
a. Civil indemnity - P50,000.00
b. Moral damages - P50,000.00
c. Exemplary damages - P50,000.00
VII. In all of the above instances, when no documentary evidence of
burial or funeral expenses is presented in court, the amount of
P50,000.00 as temperate damages shall be awarded.
To reiterate, Article 2206 of the Civil Code provides that the minimum
amount for awards of civil indemnity is P3,000.00, but does not
provide for a ceiling. Thus, although the minimum amount cannot be
changed, increasing the amount awarded as civil indemnity can be
validly modified and increased when the present circumstance
warrants it.131
Prescinding from the foregoing, for the two (2) counts of murder,
attended by the ordinary aggravating circumstance of dwelling,
appellant should be ordered to pay the heirs of the victims the
following damages: (1) P100,000.00 as civil indemnity for each of the
two children who died; (2) P100,000.00 as moral damages for each of
the two victims; (3) another PI00,000.00 as exemplary damages for
each of the two victims; and (4) temperate damages in the amount of
P50,000.00 for each of the two deceased. For the four (4) counts of
Attempted Murder, appellant should pay P50,000.00 as civil
indemnity, P50,000.00 as moral damages and P50,000.00 as
exemplary damages for each of the four victims. In addition, the civil
indemnity, moral damages, exemplary damages and temperate
damages payable by the appellant are subject to interest at the rate of
six percent (6%) per annum from the finality of this decision until fully
paid.132
Lastly, this Court echoes the concern of the trial court regarding the
dismissal of the charges against Gilberto Estores and Roger San
Miguel who had been identified by Norberto Divina as the companions
of appellant on the night the shooting occurred. Norberto had been
very straightforward and unwavering in his identification of Estores
and San Miguel as the two other people who fired the gunshots at his
family. More significantly, as noted by the prosecutor, the testimonies
of Estores and San Miguel, who insisted they were not at the crime
scene, tended to conflict with the sworn statement of Danilo Fajarillo,
which was the basis for the Provincial Prosecutor's ruling that he finds
no probable cause against the two. Danilo Fajarillo's sworn statement
said that on June 6, 2002, he saw appellant with a certain "Hapon"
and Gilbert Estores at the crime scene, but it was only appellant who
was carrying a firearm and the two other people with him had no
participation in the shooting incident. Said circumstances bolster the
credibility of Norberto Divina's testimony that Estores and San Miguel
may have been involved in the killing of his two young daughters.
After all, such reinvestigation would not subject Estores and San
Miguel to double jeopardy because the same only attaches if the
following requisites are present: (1) a first jeopardy has attached
before the second; (2) the first jeopardy has been validly terminated;
and (3) a second jeopardy is for the same offense as in the first. In
turn, a first jeopardy attaches only (a) after a valid indictment; (b)
before a competent court; (c) after arraignment; (d) when a valid plea
has been entered; and (e) when the accused has been acquitted or
convicted, or the case dismissed or otherwise terminated without his
express consent.133 In this case, the case against Estores and San
Miguel was dismissed before they were arraigned. Thus, there can be
no double jeopardy to speak of. Let true justice be served by
reinvestigating the real participation, if any, of Estores and San Miguel Estores and Roger San Miguel regarding this case. Likewise, let a
in the killing of Mary Grace and Claudine Divina.chanrobleslaw copy of this Decision be furnished the Secretary of Justice for his
information and guidance.
WHEREFORE, the instant appeal is DISMISSED. The Decision of the
Court of Appeals dated January 30, 2012 in CA-G.R. CR HC No. SO ORDERED.cralawlawlibrary
03252 is AFFIRMED with the following MODIFICATIONS:
Sereno, C.J., Carpio, Velasco, Jr., Leonardo-De Castro, Brion,
(1) In Criminal Case No. 7698-G, the Court finds accused-appellant Bersamin, Del Castillo, Perez, Mendoza, Reyes,
Ireneo Jugueta GUILTY beyond reasonable doubt of two (2) counts of Leonen, and Caguioa, JJ., concur.
the crime of murder defined under Article 248 of the Revised Penal Perlas-Bernabe, J., on leave.
Code, attended by the aggravating circumstance of dwelling, and Jardeleza, J., no part.
hereby sentences him to suffer two (2) terms of reclusion
perpetua without eligibility for parole under R.A. 9346. He
is ORDERED to PAY the heirs of Mary Grace Divina and Claudine
Divina the following amounts for each of the two victims: (a)
P100,000.00 as civil indemnity; (b) P100,000.00 as moral damages;
(c) P100,000.00 as exemplary damages; and (d) P50,000.00 as
temperate damages.

(2) In Criminal Case No. 7702-G, the Court finds accused-appellant

Ireneo Jugueta GUILTY beyond reasonable doubt of four (4) counts
of the crime of attempted murder defined and penalized under Article
248 in relation to Article 51 of the Revised Penal Code, attended by
the aggravating circumstance of dwelling, and sentences him to suffer
the indeterminate penalty of four (4) years, two (2) months and one
(1) day of prision correctional, as minimum, to ten (10) years and one
(1) day of prision mayor, as maximum, for each of the four (4) counts
of attempted murder. He is ORDERED to PAY moral damages in the
amount of P50,000.00, civil indemnity of P50,000.00 and exemplary
damages of P50,000.00 to each of the four victims, namely, Norberto
Divina, Maricel Divina, Elizabeth Divina and Judv Ann Divina.

(3) Accused-appellant Ireneo Jugueta is

also ORDERED to PAY interest at the rate of six percent (6%) per
annum from the time of finality of this decision until fully paid, to be
imposed on the civil indemnity, moral damages, exemplary damages
and temperate damages.

(4) Let the Office of the Prosecutor General, through the Department
of Justice, be FURNISHED a copy of this Decision. The Prosecutor
General is DIRECTED to immediately conduct
a REINVESTIGATION on the possible criminal liability of Gilbert
 Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 157472               September 28, 2007
SSGT. JOSE M. PACOY, Petitioner,
vs.
HON. AFABLE E. CAJIGAL, PEOPLE OF THE PHILIPPINES and
OLYMPIO L. ESCUETA, Respondents.
DECISION
AUSTRIA-MARTINEZ, J.:
Before us is a Petition for Certiorari under Rule 65 of the Rules of Court
filed by SSGT. Jose M. Pacoy1 (petitioner) seeking to annul and set aside
the Orders dated October 25, 20022 and December 18, 20023 issued by
Presiding Judge Afable E. Cajigal (respondent judge) of the Regional
Trial Court (RTC), Branch 68, Camiling, Tarlac in Criminal Case No. 02-
42.
On July 4, 2002, an Information for Homicide was filed in the RTC against
petitioner committed as follows:
That on or about the 18th day of March 2002, in the Municipality of
Mayantoc, Province of Tarlac, Philippines and within the jurisdiction of
this Honorable Court, the said accused with intent to kill, did then and
there wilfully, unlawfully and feloniously shot his commanding officer 2Lt.
Frederick Esquita with his armalite rifle hitting and sustaining upon 2Lt.
Frederick Esquita multiple gunshot wounds on his body which caused his
instantaneous death.
With the aggravating circumstance of killing, 2Lt. Frederick Esquita in
disregard of his rank.4
On September 12, 2002, upon arraignment, petitioner, duly assisted by
counsel de parte, pleaded not guilty to the charge of Homicide.
Respondent Judge set the pre-trial conference and trial on October 8,
2002.5
However, on the same day and after the arraignment, the respondent
judge issued another Order, 6 likewise dated September 12, 2002,
directing the trial prosecutor to correct and amend the Information to
Murder in view of the aggravating circumstance of disregard of rank
alleged in the Information which public respondent registered as having
qualified the crime to Murder.
Acting upon such Order, the prosecutor entered his amendment by
crossing out the word "Homicide" and instead wrote the word "Murder" in
the caption and in the opening paragraph of the Information. The
accusatory portion remained exactly the same as that of the original
Information for Homicide, with the correction of the spelling of the victim’s
name from "Escuita" to "Escueta."7
On October 8, 2002, the date scheduled for pre-trial conference and trial,
petitioner was to be re-arraigned for the crime of Murder. Counsel for
petitioner objected on the ground that the latter would be placed in double
jeopardy, considering that his Homicide case had been terminated
without his express consent, resulting in the dismissal of the case. As
petitioner refused to enter his plea on the amended Information for
Murder, the public respondent entered for him a plea of not guilty. 8
On October 28, 2002, petitioner filed a Motion to Quash with Motion to
Suspend Proceedings Pending the Resolution of the Instant Motion 9 on
the ground of double jeopardy. Petitioner alleged that in the Information
for Homicide, he was validly indicted and arraigned before a competent
court, and the case was terminated without his express consent; that
when the case for Homicide was terminated without his express consent,
the subsequent filing of the Information for Murder in lieu of Homicide
placed him in double jeopardy.
In an Order10 dated October 25, 2002, 11 the respondent judge denied the
Motion to Quash. He ruled that a claim of former acquittal or conviction
does not constitute double jeopardy and cannot be sustained unless
judgment was rendered acquitting or convicting the defendant in the
former prosecution; that petitioner was never acquitted or convicted of
Homicide, since the Information for Homicide was merely corrected/or
amended before trial commenced and did not terminate the same; that
the Information for Homicide was patently insufficient in substance, so no
valid proceedings could be taken thereon; and that with the allegation of
aggravating circumstance of "disregard of rank," the crime of Homicide is
qualified to Murder.
Petitioner filed a Motion to Inhibit with attached Motion for
Reconsideration. In his Motion to Inhibit, he alleged that the respondent
judge exercised jurisdiction in an arbitrary, capricious and partial manner
in mandating the amendment of the charge from Homicide to Murder in
disregard of the provisions of the law and existing jurisprudence.
In his Motion for Reconsideration, petitioner reiterated that the case
against him was dismissed or otherwise terminated without his express
consent, which constitutes a ground to quash the information for murder;
and that to try him again for the same offense constitutes double
jeopardy. Petitioner stated that contrary to respondent judge's conclusion
that disregard of rank qualifies the killing to Murder, it is a generic
aggravating circumstance which only serves to affect the imposition of
the period of the penalty. Petitioner also argued that the amendment
and/or correction ordered by the respondent judge was substantial; and
under Section 14, Rule 110 of the Revised Rules of Criminal Procedure,
this cannot be done, since petitioner had already been arraigned and he
would be placed in double jeopardy.
In his Order dated December 18, 2002, 12 the respondent judge denied the
Motion to Inhibit and granted the Motion for Reconsideration, thus:
WHEREFORE, in view of the foregoing, the Motion to Inhibit is hereby
DENIED while the Motion for Reconsideration is hereby GRANTED.
Unless ordered otherwise by the Highest Court, the presiding judge shall
continue hearing this case. Further, the Order dated October 25, 2002 is
reconsidered and the original information charging the crime of homicide
stands.13
In granting the Motion for Reconsideration, respondent judge found that a
close scrutiny of Article 248 of the Revised Penal Code shows that
"disregard of rank" is merely a generic mitigating 14 circumstance which
should not elevate the classification of the crime of homicide to murder.
On April 30, 2003, petitioner filed herein petition for certiorari on the
following grounds:
THE RESPONDENT JUDGE GRAVELY ABUSED HIS
DISCRETION AND EXCEEDED HIS JURISDICTION IN
ORDERING THE AMENDMENT OF THE INFORMATION FROM
HOMICIDE TO MURDER.
THE RESPONDENT JUDGE GRAVELY ABUSED HIS
DISCRETION AND VIOLATED THE LAW IN DENYING THE
MOTION TO QUASH THE INFORMATION FOR MURDER.
THE RESPONDENT JUDGE GRAVELY ABUSED HIS
DISCRETION AND EXCEEDED HIS JURISDICTION AND
VIOLATED THE LAW IN ORDERING THE REINSTATEMENT
OF THE INFORMATION FOR HOMICIDE WHICH WAS
ALREADY TERMINATED.15
Petitioner alleges that despite having entered his plea of not guilty to the
charge of Homicide, the public respondent ordered the amendment of the
Information from Homicide to Murder because of the presence of the
aggravating circumstance of "disregard of rank," which is in violation of
Section 14, Rule 110 of the Revised Rules of Criminal Procedure; that
the public respondent’s ruling that "disregard of rank" is a qualifying
aggravating circumstance which qualified the killing of 2Lt. Escueta to
murder is erroneous since, under paragraph 3, Article 14 of the Revised
Penal Code, disregard of rank is only a generic aggravating circumstance
which serves to affect the penalty to be imposed upon the accused and
does not qualify the offense into a more serious crime; that even
assuming that disregard of rank is a qualifying aggravating circumstance,
such is a substantial amendment which is not allowed after petitioner has
entered his plea.
Petitioner next contends that the respondent judge gravely abused his
discretion when he denied the Motion to Quash the Information for
Murder, considering that the original Information for Homicide filed
against him was terminated without his express consent; thus,
prosecuting him for the same offense would place him in double
jeopardy.
Petitioner further argues that although the respondent judge granted his
Motion for Reconsideration, he did not in fact grant the motion, since
petitioner's prayer was for the respondent judge to grant the Motion to
Quash the Information for Murder on the ground of double jeopardy; that
his Motion for Reconsideration did not seek the reinstatement of the
Information for Homicide upon the dismissal of the Information for
Murder, as he would again be placed in double jeopardy; thus, the
respondent judge committed grave abuse of discretion in reinstating the
Homicide case.
In his Comment, the Solicitor General argues that the respondent judge's
Order reinstating the Information to Homicide after
initially motu proprio ordering its amendment to Murder renders herein
petition moot and academic; that petitioner failed to establish the fourth
element of double jeopardy, i.e., the defendant was acquitted or
convicted, or the case against him was dismissed or otherwise
terminated without his consent; that petitioner confuses amendment with
substitution of Information; that the respondent judge's Order dated
September 12, 2002 mandated an amendment of the Information as
provided under Section 14, Rule 110 of the Revised Rules of Criminal
Procedure; and that amendments do not entail dismissal or termination of
the previous case.
Private respondent Col. Olimpio Escueta, father of the victim, filed his
Comment alleging that no grave abuse of discretion was committed by
the respondent judge when he denied petitioner's Motion to Quash the
Amended Information, as petitioner was not placed in double jeopardy;
that the proceedings under the first Information for homicide has not yet
commenced, and the case was not dismissed or terminated when the
Information was amended.
In his Reply, petitioner reiterates his contention that the amendment of
the charge of Homicide to Murder after his arraignment would place him
in double jeopardy, considering that said amendment was without his
express consent; and that such amendment was tantamount to a
termination of the charge of Homicide.
The parties filed their respective Memoranda.
Generally, a direct resort to us in a petition for certiorari is highly
improper, for it violates the established policy of strict observance of the
judicial hierarchy of courts. However, the judicial hierarchy of courts is not
an iron-clad rule.16 A strict application of the rule of hierarchy of courts is
not necessary when the cases brought before the appellate courts do not
involve factual but legal questions.17
In the present case, petitioner submits pure questions of law involving the
proper legal interpretation of the provisions on amendment and
substitution of information under the Rules of Court. It also involves the
issue of double jeopardy, one of the fundamental rights of the citizens
under the Constitution which protects the accused not against the peril of
second punishment but against being tried for the same offense. These
important legal questions and in order to prevent further delay in the trial
of the case warrant our relaxation of the policy of strict observance of the
judicial hierarchy of courts.
The Court’s Ruling
The petition is not meritorious.
We find no merit in petitioner's contention that the respondent judge
committed grave abuse of discretion in amending the Information after
petitioner had already pleaded not guilty to the charge in the Information
for Homicide. The argument of petitioner --
Considering the fact that the case for Homicide against him was already
terminated without his express consent, he cannot anymore be charged
and arraigned for Murder which involve the same offense. The petitioner
argued that the termination of the information for Homicide without his
express consent is equivalent to his acquittal. Thus, to charge him again,
this time for Murder, is tantamount to placing the petitioner in Double
Jeopardy.18
is not plausible. Petitioner confuses the procedure and effects of
amendment or substitution under Section 14, Rule 110 of the Rules of
Court, to wit --
SEC. 14. Amendment or substitution. — A complaint or information may
be amended, in form or in substance, without leave of court, at any time
before the accused enters his plea. After the plea and during the trial, a
formal amendment may only be made with leave of court and when it can
be done without causing prejudice to the rights of the accused.
xxx
If it appears at any time before judgment that a mistake has been made
in charging the proper offense, the court shall dismiss the original
complaint or information upon the filing of a new one charging the proper
offense in accordance with Rule 119, Section 11, provided the accused
would not be placed thereby in double jeopardy, and may also require the
witnesses to give bail for their appearance at the trial.
with Section 19, Rule 119 of which provides:
SEC. 19. When mistake has been made in charging the proper offense.
- When it becomes manifest at any time before judgment that a mistake
has been made in charging the proper offense and the accused cannot
be convicted of the offense charged or any other offense necessarily
included therein, the accused shall not be discharged if there appears
good cause to detain him. In such case, the court shall commit the
accused to answer for the proper offense and dismiss the original case
upon the filing of the proper information.
First, a distinction shall be made between amendment and substitution
under Section 14, Rule 110. For this purpose, Teehankee v. Madayag19 is
instructive, viz:
The first paragraph provides the rules for amendment of the information
or complaint, while the second paragraph refers to the substitution of the
information or complaint.
It may accordingly be posited that both amendment and substitution of
the information may be made before or after the defendant pleads, but
they differ in the following respects:
1. Amendment may involve either formal or substantial changes,
while substitution necessarily involves a substantial change from
the original charge;
2. Amendment before plea has been entered can be effected
without leave of court, but substitution of information must be with
leave of court as the original information has to be dismissed;
3. Where the amendment is only as to form, there is no need for
another preliminary investigation and the retaking of the plea of
the accused; in substitution of information, another preliminary
investigation is entailed and the accused has to plead anew to the
new information; and
4. An amended information refers to the same offense charged in
the original information or to an offense which necessarily
includes or is necessarily included in the original charge, hence
substantial amendments to the information after the plea has
been taken cannot be made over the objection of the accused, for
if the original information would be withdrawn, the accused could
invoke double jeopardy. On the other hand, substitution requires
or presupposes that the new information involves a different
offense which does not include or is not necessarily included in
the original charge, hence the accused cannot claim double
jeopardy.
In determining, therefore, whether there should be an amendment under
the first paragraph of Section 14, Rule 110, or a substitution of
information under the second paragraph thereof, the rule is that where
the second information involves the same offense, or an offense which
necessarily includes or is necessarily included in the first information, an
amendment of the information is sufficient; otherwise, where the new
information charges an offense which is distinct and different from that
initially charged, a substitution is in order.
There is identity between the two offenses when the evidence to support
a conviction for one offense would be sufficient to warrant a conviction for
the other, or when the second offense is exactly the same as the first, or
when the second offense is an attempt to commit or a frustration of, or
when it necessarily includes or is necessarily included in, the offense
charged in the first information. In this connection, an offense may be
said to necessarily include another when some of the essential elements
or ingredients of the former, as this is alleged in the information,
constitute the latter. And, vice-versa, an offense may be said to be
necessarily included in another when the essential ingredients of the
former constitute or form a part of those constituting the latter. 20
In the present case, the change of the offense charged from Homicide to
Murder is merely a formal amendment and not a substantial amendment
or a substitution as defined in Teehankee.
While the amended Information was for Murder, a reading of the
Information shows that the only change made was in the caption of the
case; and in the opening paragraph or preamble of the Information, with
the crossing out of word "Homicide" and its replacement by the word
"Murder." There was no change in the recital of facts constituting the
offense charged or in the determination of the jurisdiction of the court.
The averments in the amended Information for Murder are exactly the
same as those already alleged in the original Information for Homicide, as
there was not at all any change in the act imputed to petitioner, i.e., the
killing of 2Lt. Escueta without any qualifying circumstance. Thus, we find
that the amendment made in the caption and preamble from "Homicide"
to "Murder" as purely formal.21
Section 14, Rule 110 also provides that in allowing formal amendments in
cases in which the accused has already pleaded, it is necessary that the
amendments do not prejudice the rights of the accused. The test of
whether the rights of an accused are prejudiced by the amendment of a
complaint or information is whether a defense under the complaint or
information, as it originally stood, would no longer be available after the
amendment is made; and when any evidence the accused might have
would be inapplicable to the complaint or information. 22 Since the facts
alleged in the accusatory portion of the amended Information are identical
with those of the original Information for Homicide, there could not be any
effect on the prosecution's theory of the case; neither would there be any
possible prejudice to the rights or defense of petitioner.
While the respondent judge erroneously thought that "disrespect on
account of rank" qualified the crime to murder, as the same was only a
generic aggravating circumstance, 23 we do not find that he committed any
grave abuse of discretion in ordering the amendment of the Information
after petitioner had already pleaded not guilty to the charge of Homicide,
since the amendment made was only formal and did not adversely affect
any substantial right of petitioner.
Next, we determine whether petitioner was placed in double jeopardy by
the change of the charge from Homicide to Murder; and subsequently,
from Murder back to Homicide. Petitioner's claim that the respondent
judge committed grave abuse of discretion in denying his Motion to
Quash the Amended Information for Murder on the ground of double
jeopardy is not meritorious.
Petitioner's Motion to Quash was anchored on Section 3, Rule 117 of the
Rules of Court, which provides:
SEC. 3. Grounds. - The accused may move to quash the complaint or
information on any of the following grounds:
xxxx
(i) That the accused has been previously convicted or acquitted of the
offense charged, or the case against him was dismissed or otherwise
terminated without his express consent.
Section 7 of the same Rule lays down the requisites in order that the
defense of double jeopardy may prosper, to wit:
SEC. 7. Former conviction or acquittal; double jeopardy. — When an
accused has been convicted or acquitted, or the case against him
dismissed or otherwise terminated without his express consent by a court
of competent jurisdiction, upon a valid complaint or information or other
formal charge sufficient in form and substance to sustain a conviction and
after the accused had pleaded to the charge, the conviction or acquittal of
the accused or the dismissal of the case shall be a bar to another
prosecution for the offense charged, or for any attempt to commit the
same or frustration thereof, or for any offense which necessarily includes
or is necessarily included in the offense charged in the former complaint
or information.
Thus, there is double jeopardy when the following requisites are present:
(1) a first jeopardy attached prior to the second; (2) the first jeopardy has
been validly terminated; and (3) a second jeopardy is for the same
offense as in the first.24
As to the first requisite, the first jeopardy attaches only (a) after a valid
indictment; (b) before a competent court; (c) after arraignment; (d) when
a valid plea has been entered; and (e) when the accused was acquitted
or convicted, or the case was dismissed or otherwise terminated without
his express consent.25
It is the conviction or acquittal of the accused or the dismissal or
termination of the case that bars further prosecution for the same offense
or any attempt to commit the same or the frustration thereof; or
prosecution for any offense which necessarily includes or is necessarily
included in the offense charged in the former complaint or information. 26
Petitioner's insistence that the respondent judge dismissed or terminated
his case for homicide without his express consent, which is tantamount to
an acquittal, is misplaced.
Dismissal of the first case contemplated by Section 7 presupposes a
definite or unconditional dismissal which terminates the case. 27 And for
the dismissal to be a bar under the jeopardy clause, it must have the
effect of acquittal.
1âwphi1
The respondent judge's Order dated September 12, 2002 was for the trial
prosecutor to correct and amend the Information but not to dismiss the
same upon the filing of a new Information charging the proper offense as
contemplated under the last paragraph of Section 14, Rule 110 of the
Rules of Court -- which, for convenience, we quote again --
If it appears at anytime before judgment that a mistake has been made in double jeopardy, as he will be prosecuted anew for a charge of Homicide,
charging the proper offense, the court shall dismiss the original complaint which has already been terminated earlier.
or information upon the filing of a new one charging the proper offense in
accordance with section 19, Rule 119, provided the accused shall not be We are not convinced. Respondent judge did not commit any grave
placed in double jeopardy. The court may require the witnesses to give abuse of discretion.
bail for their appearance at the trial.
A reading of the Order dated December 18, 2002 showed that the
and Section 19, Rule 119, which provides: respondent judge granted petitioner's motion for reconsideration, not on
the ground that double jeopardy exists, but on his realization that
SEC. 19.- When mistake has been made in charging the proper offense - "disregard of rank" is a generic aggravating circumstance which does not
When it becomes manifest at any time before judgment that a mistake qualify the killing of the victim to murder. Thus, he rightly corrected
has been made in charging the proper offense and the accused cannot himself by reinstating the original Information for Homicide. The requisite
be convicted of the offense charged or any other offense necessarily of double jeopardy that the first jeopardy must have attached prior to the
included therein, the accused shall not be discharged if there appears second is not present, considering that petitioner was neither convicted
good cause to detain him. In such case, the court shall commit the nor acquitted; nor was the case against him dismissed or otherwise
accused to answer for the proper offense and dismiss the original case terminated without his express consent.29
upon the filing of the proper information.
WHEREFORE, the petition is DISMISSED, there being no grave abuse of
Evidently, the last paragraph of Section 14, Rule 110, applies only when discretion committed by respondent Judge.
the offense charged is wholly different from the offense proved, i.e., the
accused cannot be convicted of a crime with which he was not charged in SO ORDERED.
the information even if it be proven, in which case, there must be a
dismissal of the charge and a substitution of a new information charging
the proper offense. Section 14 does not apply to a second information,
which involves the same offense or an offense which necessarily includes
or is necessarily included in the first information. In this connection, the
offense charged necessarily includes the offense proved when some of
the essential elements or ingredients of the former, as alleged in the
complaint or information, constitute the latter. And an offense charged is
necessarily included in the offense proved when the essential ingredients
of the former constitute or form a part of those constituting the latter. 28

Homicide is necessarily included in the crime of murder; thus, the

respondent judge merely ordered the amendment of the Information and
not the dismissal of the original Information. To repeat, it was the same
original information that was amended by merely crossing out the word
"Homicide" and writing the word "Murder," instead, which showed that
there was no dismissal of the homicide case.

Anent the last issue, petitioner contends that respondent judge gravely
abused his discretion in ordering that the original Information for
Homicide stands after realizing that disregard of rank does not qualify the
killing to Murder. That ruling was again a violation of his right against
 Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 179943               June 26, 2009
PEOPLE OF THE PHILIPPINES, Appellee,
vs.
MARLON ALBERT DE LEON y HOMO, Appellant.
DECISION
PERALTA, J.:
1
This is an appeal from the Decision  of the Court of Appeals (CA),
affirming with modification the Decision2 of the Regional Trial Court
(RTC), Branch 76, San Mateo, Rizal, finding appellant Marlon
Lambert De Leon y Homo guilty beyond reasonable doubt of the
crime of robbery with homicide.
The factual and procedural antecedents are as follows:
According to the prosecution, in the early morning, around 2 o'clock of
January 7, 2000, Eduardo Zulueta and Fortunato Lacambra III, both
gasoline boys; Julieta Amistoso, cashier; and Edralin Macahis,
security guard; all employees of Energex Gasoline Station, located
at Barangay Guinayan, San Mateo, Rizal, were on duty when a mint
green-colored Tamaraw FX arrived for service at the said gasoline
station.3
Eduardo Zulueta was the one who attended to the said vehicle. He
went to the driver’s side in order to take the key of the vehicle from the
driver so that he could open the gas tank. He saw through the lowered
window shield that there were about six to seven persons aboard the
vehicle. He proceeded to fill up ₱50.00 worth of diesel in the gas tank.
After doing this, he returned the key to the driver. While returning the
key, the driver told him that the engine of the vehicle would not
start.4 Eduardo Zulueta offered to give the vehicle a push. While
Eduardo Zulueta and fellow gasoline boy Fortunato Lacambra III were
positioned at the back of the vehicle, ready to push the same, the six
male passengers of the same vehicle, except the driver, alighted and
announced a hold-up. They were armed with a shotgun and .38
caliber pistol.5
Fortunato Lacambra III was ordered to lie down, 6 while Eduardo
Zulueta was directed to go near the Car Wash Section. 7 At that
instance, guns were poked at them.8
Appellant, who guarded Eduardo Zulueta, poked a gun at the latter
and took the latter's wallet containing a pawnshop ticket and ₱50.00,
while the companion of the former, hit the latter on his nape with a
gun.9
Meanwhile, four members of the group went to the cashier's office and
took the money worth ₱3,000.00.10 Those four robbers were also the
ones who shot Edralin Macahis in the stomach.11 Thereafter, the same
robbers took Edralin Macahis' service firearm.12
After he heard successive gunshots, Eduardo Zulueta saw appellant
and his companions immediately leave the place.13 The robbers
boarded the same vehicle and proceeded toward San Mateo,
Rizal.14 When the robbers left, Eduardo Zulueta stood up and found
Julieta Amistoso, who told him that the robbers took her bag and
jewelry. He also saw that Edralin Macahis had a gunshot wound in the
stomach. He immediately hailed a vehicle which transported the
injured Edralin Macahis to the hospital.15 Later on, Edralin Macahis
died at the hospital due to the gunshot wound.16
The following day, Eduardo Zulueta identified appellant as one of the
robbers who poked a gun at him.17
However, according to appellant, from January 4 to 6, 2000, he
stayed at the house of his Tita Emma at Pantok, Binangonan, Rizal,
helping the latter in her canteen. On the evening of January 6, at
approximately 9 o'clock, appellant asked permission from his Tita
Emma to go to Antipolo. Catherine Homo, appellant's cousin and the
latter's younger brother, accompanied appellant to the terminal. While
waiting for a ride, the vehicle, a Tamaraw FX, of a certain Christian
Gersalia, a relative of appellant and Catherine Homo, passed by.
Catherine Homo asked Christian Gersalia if he would allow appellant
to hitch a ride on his vehicle. Christian Gersalia agreed. Aside from
Christian Gersalia, there were other passengers in the said vehicle.18
When the vehicle reached Masinag, where appellant was supposed to
alight, he was not allowed to do so; instead, he was asked by the
other passengers to join them in their destination. While on the road,
appellant fell asleep. When he woke up, they were in a gasoline
station. He then saw Christian Gersalia and the other passengers
conducting a hold-up. He never left the vehicle and was not able to do
anything because he was overwhelmed with fear. After he heard the
gunshots, Christian Gersalia and the other passengers went to the
vehicle and proceeded towards Marikina. On their way, they were
followed by policemen who fired at them. The other passengers fired
back at the policemen. It was then that the vehicle hit a wall prompting
the other passengers to scamper in different directions leaving him
behind. When the policemen arrived, he was immediately arrested.19
As a result of the above incident, four Informations for Robbery with
Homicide were filed against appellant, Rudy Gersalia, Christian
Gersalia, Dondon Brenvuela, Jonathan Brenvuela, Pantoy Servantes,
an alias "Rey," an alias "Jonard," an alias "Precie," and an alias
"Renato," which read as:
Criminal Case No. 4747
That on or about the 7th day of January 2000, in the Municipality of
San Mateo, Province of Rizal, Philippines, and within the jurisdiction
of this Honorable Court, the above-named accused, conspiring and
confederating together with Rudy Gersalia, Christian Gersalia,
Dondon Brenvuela, Jonathan Brenvuela, Pantoy Servantes, Alias
"Rey," Alias "Jonard," Alias " Precie" and Alias "Renato" whose true
names, identities and present whereabouts are still unknown and still
at-large, and conspiring and mutually helping and assisting one
another, while armed with unlicensed firearms and acting as a band,
with intent of gain with aggravating circumstances of treachery, abuse
of superior strength and using disguise, fraud or craft and taking
advantage of nighttime, and by means of motor vehicle and by means
of force, violence and intimidation, employed upon ENERGEX
GASOLINE STATION, owned by Regino C. Natividad, and
represented by Macario C. Natividad, did then and there willfully,
unlawfully and feloniously rob, steal and carry away its cash earnings
worth ₱3,000.00, to the damage and prejudice of said Energex
Gasoline Station in the aforesaid amount of ₱3,000.00 and on the
occasion of the said robbery, the above-named accused, while armed
with unlicensed firearms with intent to kill, conspiring and
confederating together with Rudy Gersalia, Christian Gersalia,
Dondon Brenvuela, Jonathan Brenvuela, Pantoy Servantes, Alias
"Rey," Alias "Jonard," Alias "Precie" and Alias "Renato," whose true
names, identities and present whereabouts are still unknown and still
at-large, did then and there willfully, unlawfully and feloniously attack,
assault and shoot one EDRALIN MACAHIS, a Security Guard of
Energex Gasoline Station, thereby inflicting upon him gunshot wound
on his trunk which directly caused his death.
Contrary to law.
Criminal Case No. 4748
That on or about the 7th day of January 2000 in the Municipality of
San Mateo, Province of Rizal, Philippines and within the jurisdiction of
this Honorable Court, the above-named accused, conspiring and
confederating , together with Rudy Gersalia, Christian Gersalia,
Dondon Brenvuela, Jonathan Brenvuela, Pantoy Servantes, Alias
"Rey," Alias "Jonard," Alias " Precie" and Alias "Renato," whose true
names, identities and present whereabouts are still unknown and still
at-large and conspiring and mutually helping and assisting one
another, while armed with unlicensed firearms and acting as a band,
with intent of gain, with aggravating circumstances of treachery,
abuse of superior strength and using disguise, fraud or craft and
taking advantage of nighttime, and by means of a motor vehicle and
by means of force, violence and intimidation, employed upon the
person of JULIETA A. AMISTOSO, the Cashier of Energex Gasoline
Station, did then and there willfully, unlawfully and feloniously rob,
steal and carry away the following, to wit:
a) One (1) ladies ring with sapphire stone valued at ₱1,500.00
b) One (1) Omac ladies wristwatch valued at ₱2,000.00
c) Guess black bag valued at ₱500.00
 d) Leather wallet valued at ₱150.00
e) White T-Shirt valued at ₱175.00
to her damage and prejudice in the total amount of ₱4,325.00 and on
the occasion of the said robbery, the above-named accused while
armed with unlicensed firearms with intent to kill, conspiring and
confederating together with Rudy Gersalia, Christian Gersalia,
Dondon Brenvuela, Jonathan Brenvuela, Pantoy Servantes, Alias
"Rey," Alias "Jonard," Alias "Precie" and Alias "Renato," whose true
names, identities and present whereabouts are still unknown and still
at-large, did then and there willfully, unlawfully and feloniously attack,
assault and shoot one EDRALIN MACAHIS, a Security Guard of
Energex Gasoline Station, thereby inflicting upon him gunshot wound
on his trunk which directly caused his death.
Contrary to law.
Criminal Case No. 4749
That on or about the 7th day of January 2000, in the Municipality of
San Mateo, Province of Rizal, Philippines and within the jurisdiction of
this Honorable Court, the above-named accused, conspiring and
confederating together with Rudy Gersalia, Christian Gersalia,
Dondon Brenvuela, Jonathan Brenvuela, Pantoy Servantes, Alias
"Rey," Alias "Jonard," Alias "Precie" and Alias "Renato," whose true
names, identities and present whereabouts are still unknown and still
at-large, and conspiring and mutually helping and assisting one
another, while armed with unlicensed firearms and acting as a band,
with intent of gain, with aggravating circumstances of treachery,
abuse of superior strength and using disguise, fraud or craft and
taking advantage of nighttime, and by means of a motor vehicle and
by means of force, violence and intimidation, employed upon
EDRALIN MACAHIS, a Security Guard of Energex Gasoline Station,
did then and there willfully, unlawfully and feloniously rob, steal, and
carry away his service firearm .12 gauge shotgun with serial number
13265 valued at ₱12,000.00 owned by Alert and Quick (A-Q) Security
Services Incorporated represented by its General Manager Alberto T.
Quintos to the damage and prejudice of said Alert and Quick (A-Q)
Security Services Incorporated in the aforesaid amount of ₱12,000.00
and on the occasion of the said robbery the above-named accused,
while armed with unlicensed firearms, with intent to kill conspiring and
confederating together with Rudy Gersalia, Christian Gersalia,
Dondon Brenvuela, Jonathan Brenvuela, Pantoy Servantes, Alias
"Rey", Alias "Jonard", Alias " Precie" and Alias "Renato", whose true
names, identities and present whereabouts are still unknown and still
at-large, did then and there willfully, unlawfully and feloniously attack,
assault and shoot one EDRALIN MACAHIS, thereby inflicting upon
him gunshot wound on his trunk which directly caused his death.
Contrary to law.
Criminal Case No. 4750
That on or about the 7th day of January 2000, in the Municipality of
San Mateo, Province of Rizal, Philippines, and within the jurisdiction
of this Honorable Court, the above-named accused, conspiring and
confederating together with Rudy Gersalia, Christian Gersalia,
Dondon Brenvuela, Jonathan Brenvuela, Pantoy Servantes, Alias
"Rey," Alias "Jonard," Alias "Precie" and Alias "Renato," whose true
names, identities and present whereabouts are still unknown and still
at-large and conspiring and mutually helping and assisting one
another, while armed with unlicensed firearms and acting as a band,
with intent of gain, with aggravating circumstances of treachery,
abuse of superior strength and using disguise, fraud or craft and
taking advantage of nighttime, and by means of a motor vehicle and
by means of force, violence and intimidation, employed upon the
person of EDUARDO ZULUETA, a gasoline boy of Energex Gasoline
Station, did then and there willfully, unlawfully and feloniously rob,
steal and carry away the following to wit:
a) Pawnshop Ticket from M. Lhuiller Pawnshop for one (1)
black Citizen men's watch (automatic) valued at ₱2,000.00
b) Cash money worth ₱50.00
to his damage and prejudice in the total amount of ₱2,050.00
and on the occasion of the said robbery, the above-named
accused, while armed with unlicensed firearms with intent to
kill, conspiring and confederating together with Rudy Gersalia,
Christian Gersalia, Dondon Brenvuela, Jonathan Brenvuela,
Pantoy Servantes, Alias "Rey," Alias "Jonard," Alias "Precie"
and Alias "Renato," whose true names, identities and present
whereabouts are still unknown and still at-large, did then and
 there willfully, unlawfully and feloniously attack, assault and
shoot one EDRALIN MACAHIS, a Security Guard of Energex
Gasoline Station, thereby inflicting upon him gunshot wound
on his trunk which directly caused his death.
Contrary to law.
Upon arraignment on March 23, 2000, appellant, with the assistance
of counsel de parte, entered a plea of not guilty on all the charges.
Thereafter, trial on the merits ensued.
The prosecution presented five witnesses, namely: Macario C.
Natividad,20 then officer-in-charge of Energex Gasoline Station where
the incident took place; Edito Macahis,21 a cousin of the deceased
security guard Edralin Macahis; Fortunato Lacambra III,22 a gasoline
boy of the same gas station; Eduardo Zulueta, 23 also a gasoline boy of
the same gas station, and Alberto Quintos,24 general manager of Alert
and Quick Security Services, Inc., where the deceased security guard
was employed.
The defense, on the other hand, presented two witnesses, namely:
Catherine Homo,25 a cousin of appellant and the appellant26 himself.
On December 20, 2001, the RTC rendered its Decision 27 convicting
appellant beyond reasonable doubt of all the charges against him, the
dispositive portion of which reads:
1. In Criminal Case No. 4747, finding accused Marlon Albert
de Leon y Homo guilty beyond reasonable doubt of the crime
of Robbery with Homicide, as defined and penalized under No.
1 of Art. 294 of the Revised Penal Code, as amended by Sec.
9 of R.A. 7659, in relation to Sec. 1 of P.D. 1866, as further
amended by Sec. 1 of R.A. 8294, having acted in conspiracy
with other malefactors who have, to date, remained at-large,
and sentencing the said Marlon Albert de Leon y Homo to the
penalty of Death, taking into consideration the use of an
unlicensed firearm in the commission of the crime as an
aggravating circumstance; to pay Energex Gasoline Station
owned by Regino Natividad and represented by Macario C.
Natividad the amount of ₱3,000.00 as compensatory damages
and to pay the costs;
2. In Crim. Case No. 4748, finding accused Marlon Albert de
Leon y Homo guilty beyond reasonable doubt of the crime of
Robbery with Homicide, as defined and penalized under No. 1
of Art. 294 of the Revised Penal Code, as amended by Sec. 9
of R.A. 7659, in relation to Sec. 1 of P.D. 1866, as further
amended by Sec. 1 of R.A. 8294, having acted in conspiracy
with other malefactors who have, to date, remained at-large,
and sentencing the said Marlon Albert de Leon y Homo to the
penalty of Death, taking into consideration the use of an
unlicensed firearm in the commission of the crime as an
aggravating circumstance, and to pay the costs;
3. In Crim. Case No. 4749, finding accused Marlon Albert de
Leon y Homo guilty beyond reasonable ground of the crime of
Robbery with Homicide, as defined and penalized under No. 1
of Art. 294 of the Revised Penal Code, as amended by Sec. 9
of R.A. 7659, in relation to Sec. 1 of P.D. 1866, as further
amended by Sec. 1 of R.A. 8294, having acted in conspiracy
with other malefactors who have, to date, remained at-large,
and sentencing the said Marlon Albert de Leon y Homo to the
penalty of Death, taking into consideration the use of an
unlicensed firearm in the commission of the crime as an
aggravating circumstance; to indemnify the heirs of Edralin
Macahis in the amount of ₱50,000.00 as death indemnity; to
pay ₱12,000.00 as compensatory damages for the stolen
service firearm if restitution is no longer possible and
₱50,000.00 as moral damages, and to pay the costs;
4. In Crim. Case No. 4750, finding accused Marlon Albert de
Leon y Homo guilty beyond reasonable doubt of the crime of
Robbery with Homicide, as defined and penalized under No. 1
of Art. 294 of the Revised Penal Code, as amended by Sec. 9
of R.A 7659, in relation to Sec. 1 of P.D. 1866, as further
amended by Sec. 1 of R.A. 8294, having acted in conspiracy
with other malefactors who have, to date, remained at-large,
and sentencing the said Marlon Albert de Leon y Homo to the
penalty of Death, taking into consideration the use of an
unlicensed firearm in the commission of the crime as an
aggravating circumstance and to pay Eduardo Zulueta, victim
of the robbery, in the amount of ₱2,050.00 as compensatory
damages for the stolen properties if restitution is no longer
possible and to pay the costs.
As against accused Rudy Gersalia and Christian Gersalia, who have,
to date, remained at-large, let a warrant of arrest be issued against
them and let these cases be, in the meantime, sent to the archives
without prejudice to their reinstatement upon apprehension of the said
accused.
As against accused Dondon Brenvuela, Jonathan Brenvuela, Pantoy
Servantes, Alias "Rey," Alias "Jonard," Alias "Precie and Alias
"Renato," whose true names, identities and present whereabouts are
still unknown and are still at-large, let these cases be, in the
meantime, sent to the archives without prejudice to their reinstatement
upon the identification and apprehension of the said accused.
SO ORDERED.
The cases were appealed to this Court, however, on September, 21,
2004,28 in conformity with the Decision dated July 7, 2004 in G.R. Nos.
147678-87 entitled The People of the Philippines v. Efren Mateo y
Garcia, modifying the pertinent provisions of the Revised Rules of
Criminal Procedure, more particularly Sections 3 and 10 of Rule 125
and any other rule insofar as they provide for direct appeals from the
RTCs to this Court in cases where the penalty imposed is
death, reclusion perpetua or life imprisonment, as well as the
Resolution of this Court, en banc dated September 19, 1995, in
"Internal Rules of the Supreme Court" in cases similarly involving the
death penalty, pursuant to the Court's power to promulgate rules of
procedure in all courts under Article VII, Section 5 of the Constitution,
and allowing an intermediate review by the CA before such cases are
elevated to this Court. This Court transferred the cases to the CA for
appropriate action and disposition.
The CA, on June 29, 2007,29 affirmed with modification, the Decision
of the RTC, with the dispositive portion reading:
WHEREFORE, the appealed decision is AFFIRMED with
MODIFICATION. Accused Marlon Albert de Leon y Homo is hereby
found guilty beyond reasonable doubt of the crime of Robbery with
Homicide of only one count.
Given the passage of Republic Act 9346 which took effect on 24 June
2006, the penalty imposed upon Marlon de Leon y Homo is hereby
reduced or commuted to reclusion perpetua.
SO ORDERED.
On December 10, 2007, this Court accepted the appeal, 30 the penalty
imposed being reclusion perpetua.
The Office of the Solicitor General (OSG), on February 8, 2008, filed
its Manifestation and Motion In Lieu of the Supplemental Brief 31 dated
February 4, 2008 stating that it will no longer file a supplemental brief,
considering that appellant has not raised any new issue that would
require the filing of a supplemental brief.
Appellant filed a Manifestation32 on February 22, 2008 stating that he
re-pleads and adopts his Appellant's Brief and Reply Brief as
Supplemental Brief.
Appellant, in his Brief,33 assigned the following errors:
I
THE TRIAL COURT GRAVELY ERRED IN FINDING
ACCUSED-APPELLANT A CO-CONSPIRATOR IN THE
COMMISSION OF THE CRIME CHARGED DESPITE THE
FAILURE OF THE PROSECUTION TO PROVE THE SAME
AND GUILT BEYOND REASONABLE DOUBT.
II
ON THE ASSUMPTION THAT ACCUSED-APPELLANT IS
GUILTY OF ROBBERY WITH HOMICIDE, THE TRIAL
COURT GRAVELY ERRED IN IMPOSING FOUR (4) DEATH
PENALTIES DESPITE THAT THE CRIME CHARGED WAS
PRODUCED BY ONE SINGLE ACT WHICH SHOULD BE
METED WITH A SINGLE PENALTY.
The OSG, in its Appellee's Brief, 34 insisted that all the elements of the
crime and the appellant's participation in the crime had been
established.
Appellant, in his Reply Brief,35 argued that the penalty should not be
death, but only reclusion perpetua, because the aggravating
circumstance of use of unlicensed firearm, although alleged in the
Information, was not alleged with specificity.
Article 294, paragraph 1 of the Revised Penal Code provides:
Art. 294. Robbery with violence against or intimidation of persons –
Penalties. - Any person guilty of robbery with the use of violence
against or any person shall suffer:
1. The penalty of reclusion perpetua to death, when by reason or on
occasion of the robbery, the crime of homicide shall have been
committed, or when the robbery shall have been accompanied by
rape or intentional mutilation or arson.
36
In People v. De Jesus,  this Court had exhaustively discussed the
crime of robbery with homicide, thus:
For the accused to be convicted of the said crime, the prosecution is
burdened to prove the confluence of the following elements:
(1) the taking of personal property is committed with violence
or intimidation against persons;
(2) the property taken belongs to another;
(3) the taking is animo lucrandi; and
(4) by reason of the robbery or on the occasion thereof,
homicide is committed.37
In robbery with homicide, the original criminal design of the malefactor
is to commit robbery, with homicide perpetrated on the occasion or by
reason of the robbery.38 The intent to commit robbery must precede
the taking of human life.39 The homicide may take place before, during
or after the robbery. It is only the result obtained, without reference or
distinction as to the circumstances, causes or modes or persons
intervening in the commission of the crime that has to be taken into
consideration.40 There is no such felony of robbery with homicide
through reckless imprudence or simple negligence. The constitutive
elements of the crime, namely, robbery with homicide, must be
consummated.
It is immaterial that the death would supervene by mere accident; or
that the victim of homicide is other than the victim of robbery, or that
two or more persons are killed, or that aside from the homicide, rape,
intentional mutilation, or usurpation of authority, is committed by
reason or on the occasion of the crime. Likewise immaterial is the fact
that the victim of homicide is one of the robbers; the felony would still
be robbery with homicide. Once a homicide is committed by or on the
occasion of the robbery, the felony committed is robbery with
homicide. All the felonies committed by reason of or on the occasion
of the robbery are integrated into one and indivisible felony of robbery
with homicide. The word "homicide" is used in its generic sense.
Homicide, thus, includes murder, parricide, and infanticide.
Intent to rob is an internal act, but may be inferred from proof of
violent unlawful taking of personal property. When the fact of
asportation has been established beyond reasonable doubt,
conviction of the accused is justified even if the property subject of the
robbery is not presented in court. After all, the property stolen may
have been abandoned or thrown away and destroyed by the robber or
recovered by the owner.41 The prosecution is not burdened to prove
the actual value of the property stolen or amount stolen from the
victim. Whether the robber knew the actual amount in the possession
of the victim is of no moment, because the motive for robbery can
exist regardless of the exact amount or value involved.42
When homicide is committed by reason or on the occasion of robbery,
all those who took part as principals in the robbery would also be held
liable as principals of the single and indivisible felony of robbery with
homicide, although they did not actually take part in the killing, unless
it clearly appears that they endeavored to prevent the same.43
If a robber tries to prevent the commission of homicide after the
commission of the robbery, he is guilty only of robbery and not of
robbery with homicide. All those who conspire to commit robbery with
homicide are guilty as principals of such crime, although not all
profited and gained from the robbery. One who joins a criminal
conspiracy adopts the criminal designs of his co-conspirators and can
no longer repudiate the conspiracy once it has materialized.44
Homicide is said to have been committed by reason or on the
occasion of robbery if, for instance, it was committed (a) to facilitate
the robbery or the escape of the culprit; (b) to preserve the
possession by the culprit of the loot; (c) to prevent discovery of the (At this juncture, witness pointing to a certain person who
commission of the robbery; or, (d) to eliminate witnesses in the answered by the name of MARLON ALBERT DE LEON when
commission of the crime. As long as there is a nexus between the asked.)
robbery and the homicide, the latter crime may be committed in a
place other than the situs of the robbery. Q: This Marlon De Leon was he the one who guarded you in
the carwash or not?
From the above disquisition, the testimonies of the witnesses, and
pieces of evidence presented by the prosecution, the crime of robbery A: Yes, sir.
with homicide was indeed committed. There was no mistaking from
the actions of all the accused that their main intention was to rob the Q: Now, what happened to you at the carwash where this
gasoline station and that on occasion of such robbery, a homicide was Marlon De Leon was guarding you?
committed. The question now is whether there was conspiracy in the
commission of the crime. According to appellant, the prosecution A: His gun was poked at me, sir.
failed to prove that he was a co-conspirator. However, this Court finds
no merit to appellant's argument. Q: What else transpired, Mr. Witness, or what else happened
to you aside from that?
If it is proved that two or more persons aimed by their acts towards
the accomplishment of the same unlawful object, each doing a part so A: He hit me with his gun on my nape, sir.
that their combined acts, though apparently independent, were in fact
connected and cooperative, indicating a closeness of personal
Q: What else, Mr. Witness?
association and a concurrence of sentiment, a conspiracy may be
inferred though no actual meeting among them to concert means is
proved. That would be termed an implied conspiracy. 45 The A: He got my wallet from my pocket, sir.
prosecution was able to prove the presence of an implied conspiracy.
The witnesses were able to narrate in a convincing manner, the Q: Who hit you with a gun?
circumstances surrounding the commission of the robbery and
positively identified appellant as one of the robbers. Witness Eduardo A: His other companion, sir.46
Zulueta testified that appellant was one of the robbers who poked a
gun at him, thus: Appellant was also identified by witness Fortunato Lacambra
III, thus:
Q. Were you able to identify those two armed male persons
who poked their guns at you? Q: What about that person who ordered Zulueta to go to the
carwash section and hit him, was he also armed?
A: Yes, sir.
A: Yes, sir.
Q: Kindly look around inside this courtroom and inform the
Hon. Court whether those two (2) persons who poked their Q: What kind of firearm was he carrying then?
guns at you were (sic) present now?
A: Also .38 caliber, sir.
A: Only one, sir, and there he is.
 Q: Were you able to identify or recognize that person who
approached and ordered Zulueta to go to the carwash
section?
A: Yes, sir.
Q: If that person is inside the courtroom, will you be able to
identify him?
A: Yes, sir.
Q: Kindly point to him?
A: That man, sir. (Witness pointed to a person who answered
by the name of Marlon Albert de Leon).47
Therefore, it can be inferred from the role appellant played in the
commission of the robbery, that a conspiracy existed and he was part
of it. To be a conspirator, one need not participate in every detail of
the execution; he need not even take part in every act or need not
even know the exact part to be performed by the others in the
execution of the conspiracy. Each conspirator may be assigned
separate and different tasks which may appear unrelated to one
another but, in fact, constitute a whole collective effort to achieve their
common criminal objective.48 Once conspiracy is shown, the act of
one is the act of all the conspirators. The precise extent or modality of
participation of each of them becomes secondary,49 since all the
conspirators are principals.
As to the credibility of the witnesses, the RTC's findings must not be
disturbed. The well-settled rule in this jurisdiction is that the trial
court’s findings on the credibility of witnesses are entitled to the
highest degree of respect and will not be disturbed on appeal without
any clear showing that it overlooked, misunderstood or misapplied
some facts or circumstances of weight or substance which could
affect the result of the case.50
For his defense, appellant merely denied participating in the robbery.
However, his presence during the commission of the crime was well-
established as appellant himself testified as to the matter. Granting
that he was merely present during the robbery, his inaction does not
exculpate him. To exempt himself from criminal liability, a conspirator
must have performed an overt act to dissociate or detach himself from
the conspiracy to commit the felony and prevent the commission
thereof.51 Appellant offered no evidence that he performed an overt
act neither to escape from the company of the robbers nor to prevent
the robbery from taking place. His denial, therefore, is of no value.
Courts generally view the defenses of denial and alibi with disfavor on
account of the facility with which an accused can concoct them to suit
his defense. As both evidence are negative and self-serving, they
cannot attain more credibility than the testimonies of prosecution
witnesses who testify clearly, providing thereby positive evidence on
the various aspects of the crime committed.52
Consequently, the CA was correct in ruling that appellant was guilty
only of one count of robbery with homicide. In the crime of robbery
with homicide, there are series of acts, borne from one criminal
resolution, which is to rob. As decided53 by the Court of Appeals:
A continued (continuous or continuing) crime is defined as a single
crime, consisting of a series of acts but all arising from one criminal
resolution.54 Although there is a series of acts, there is only one crime
committed; hence, only one penalty shall be imposed.55
In the case before Us, [appellant] and his companions intended only
to rob one place; and that is the Energex gasoline station. That they
did; and in the process, also took away by force the money and
valuables of the employees working in said gasoline station. Clearly
inferred from these circumstances are the series of acts which were
borne from one criminal resolution. A continuing offense is a
continuous, unlawful act or series of acts set on foot by a single
impulse and operated by an unintermittent force, however long a time
it may occupy.56 This can be said of the case at hand.
Akin to the extant case is that of People v. De la Cruz,57 wherein the
robbery that took place in several houses belonging to different
persons, when not absolutely unconnected, was held not to be taken
as separate and distinct offenses. They formed instead, component
parts of the general plan to despoil all those within the vicinity. In this
case, the Solicitor General argued that the [appellant] had committed
eight different robberies, because the evidence shows distinct and
different acts of spoilation in different houses, with several victimized
persons.58 The Highest Tribunal, however, ruled that the perpetrated
acts were not entirely distinct and unconnected from one
another.59 Thus, the single offense or crime.
Now, this Court comes to the penalty imposed by the CA. The
decision60 merely states that, in view of the enactment of R.A. 9346,
the sentence of Death Penalty, imposed upon appellant, is
automatically commuted to reclusion perpetua, but is silent as to how
it had arrived into such a conclusion.1avvphi1
Under Article 294 of the Revised Penal Code, as amended by R.A.
No. 7659, robbery with homicide is punishable by reclusion
perpetua to death, which are both indivisible penalties. Article 63 of
the same Code provides that, in all cases in which the law prescribes
a penalty composed of two indivisible penalties, the greater penalty
shall be applied when the commission of the deed is attended by one
aggravating circumstance.61 It must be remembered that the
Informations filed with the RTC alleged the aggravating circumstance
of the use of unlicensed firearm. Pursuant to the third paragraph of
Section 1 of P.D. No. 1866, as amended by R.A. No. 8294, such use
of an unlicensed firearm is a special and not a generic aggravating
circumstance in the homicide or murder committed. As explained by
this Court in Palaganas v. People:62
Generic aggravating circumstances are those that generally apply to
all crimes such as those mentioned in Article 14, paragraphs No. 1, 2,
3, 4, 5, 6, 9, 10, 14, 18, 19 and 20, of the Revised Penal Code. It has
the effect of increasing the penalty for the crime to its maximum
period, but it cannot increase the same to the next higher degree. It
must always be alleged and charged in the information, and must be
proven during the trial in order to be appreciated.63 Moreover, it can be
offset by an ordinary mitigating circumstance.
On the other hand, special aggravating circumstances are those
which arise under special conditions to increase the penalty for the
offense to its maximum period, but the same cannot increase the
penalty to the next higher degree. Examples are quasi-recidivism
under Article 160 and complex crimes under Article 48 of the Revised
Penal Code. It does not change the character of the offense
charged.64 It must always be alleged and charged in the information,
and must be proven during the trial in order to be
appreciated.65 Moreover, it cannot be offset by an ordinary mitigating
circumstance.
It is clear from the foregoing that the meaning and effect of generic
and special aggravating circumstances are exactly the same except
that in case of generic aggravating, the same CAN be offset by an
ordinary mitigating circumstance whereas in the case of special
aggravating circumstance, it CANNOT be offset by an ordinary
mitigating circumstance.
Aside from the aggravating circumstances abovementioned, there is
also an aggravating circumstance provided for under Presidential
Decree No. 1866,66 as amended by Republic Act No. 8294,67 which is
a special law. Its pertinent provision states:
If homicide or murder is committed with the use of an unlicensed
firearm, such use of an unlicensed firearm shall be considered as an
aggravating circumstance.
In interpreting the same provision, the trial court reasoned that such
provision is "silent as to whether it is generic or qualifying." 68 Thus, it
ruled that "when the law is silent, the same must be interpreted in
favor of the accused."69 Since a generic aggravating circumstance is
more favorable to petitioner compared to a qualifying aggravating
circumstance, as the latter changes the nature of the crime and
increase the penalty thereof by degrees, the trial court proceeded to
declare that the use of an unlicensed firearm by the petitioner is to be
considered only as a generic aggravating circumstance.70 This
interpretation is erroneous, since we already held in several cases
that with the passage of Republic Act No. 8294 on 6 June 1997, the
use of an unlicensed firearm in murder or homicide is now considered
as a SPECIAL aggravating circumstance and not a generic
aggravating circumstance.71 Republic Act No. 8294 applies to the
instant case since it took effect before the commission of the crimes in
21 April 1998. Therefore, the use of an unlicensed firearm by the
petitioner in the instant case should be designated and appreciated as
a SPECIAL aggravating circumstance and not merely a generic
aggravating circumstance.
In another case,72 this Court ruled that, the existence of the firearm
can be established by testimony, even without the presentation of the
firearm.73 In the said case, it was established that Elmer and
Marcelina Hidalgo died of, and Pedro Hidalgo sustained, gunshot
wounds. The ballistic examination of the slugs recovered from the
place of the incident showed that they were fired from a .30 carbine
rifle and a .38 caliber firearm. The prosecution witnesses positively
identified appellant therein as one of those who were holding a long
firearm. It was also established that the same appellant was not a
licensed firearm holder. Hence, this Court ruled that the trial court and
the CA correctly appreciated the use of unlicensed firearm as an
aggravating circumstance.
After a careful study of the records of the present case, this Court
found that the use of unlicensed firearm was not duly proven by the
prosecution. Although jurisprudence dictates that the existence of the
firearm can be established by mere testimony, the fact that appellant
was not a licensed firearm holder must still be established. The
prosecution failed to present written or testimonial evidence to prove
that appellant did not have a license to carry or own a firearm, hence,
the use of unlicensed firearm as an aggravating circumstance cannot
be appreciated.
WHEREFORE, the Decision dated June 29, 2007 of the Court of
Appeals is hereby AFFIRMED with MODIFICATION. Appellant Marlon
Albert de Leon y Homo is hereby found guilty beyond reasonable
doubt of the crime of Robbery with Homicide, the penalty of which,
is reclusion perpetua in view of the absence of any mitigating or
aggravating circumstance. Appellant is also liable to pay the heirs of
the victim, ₱25,000.00 as temperate damages, in addition to the other
civil indemnities and damages adjudged by the Regional Trial Court,
Branch 76, San Mateo, Rizal.
SO ORDERED.

Finally, it is worth noting that the RTC ordered appellant to indemnify

the heirs of Edralin Macahis the amount of ₱50,000.00 as death
indemnity, ₱12,000.00 as compensatory damages for the stolen
service firearm if restitution is no longer possible and ₱50,000.00 as
moral damages. Actual damages were never proven during the trial.
Hence, this Court's rulings74 on temperate damages apply, thus:

In People vs. Abrazaldo,75 we laid down the doctrine that where the
amount of actual damages for funeral expenses cannot be determined
because of the absence of receipts to prove them, temperate
damages may be awarded in the amount of ₱25,000 76 This doctrine
specifically refers to a situation where no evidence at all of funeral
expenses was presented in the trial court. However, in instances
where actual expenses amounting to less than ₱25,000 are proved
during the trial, as in the case at bar, we apply the ruling in the more
recent case of People vs. Villanueva77 which modified the Abrazaldo
doctrine. In Villanueva, we held that "when actual damages proven by
receipts during the trial amount to less than ₱25,000, the award of
temperate damages for ₱25,000 is justified in lieu of the actual
damages of a lesser amount." To rule otherwise would be anomalous
and unfair because the victim’s heirs who tried but succeeded in
proving actual damages of an amount less than ₱25,000 would be in
a worse situation than those who might have presented no receipts at
all but would now be entitled to ₱25,000 temperate damages.78
Republic of the Philippines Office of the City Fiscal filed seventy-five (75) cases of estafa against
SUPREME COURT private respondent before the City Court of Manila. Except as to the
Manila dates and amounts of conversions, the 75 informations commonly
charge that "... the said accused, being then an employee of the Units
FIRST DIVISION Optical Supply Company ..., and having collected and received from
customers of the said company the sum of ... in payment for goods
  purchased from it, under the express obligation on the part of the said
accused to immediately account for and deliver the said collection so
G.R. No. L-41054 November 28, 1975 made by him to the Units Optical Supply Company or the owners
thereof ..., far from complying with his said aforesaid obligation and
JOSE L. GAMBOA and UNITS OPTICAL SUPPLY despite repeated demands made upon him ... did then and
COMPANY, petitioners, there ... misappropriate, misapply and convert the said sum to his own
vs. personal use and benefit by depositing the said amount in his own
COURT OF APPEALS and BENJAMIN LU HAYCO, respondents. name and personal account with the Associated Banking Corporation
under Account No. 171 (or with the Equitable Banking Corporation
under Account No. 707), and thereafter withdrawing the same ... ."
Assistant City Fiscal Leonardo L. Arguelles for petitioner Jose L.
Gamboa.
A civil action for accounting (docketed as Civil Case No. 89373 of the
Court of First Instance of Manila) was likewise filed by Lu Chiong Sun,
Koh Law Offices for petitioner Units Optical Supply Company.
the owner of the Units Optical Supply Company, complaining that
during his hospital confinement from September 27, 1972 to October
Arturo M. Tolentino and Montesa, Manikan and Associates for private 30, 1972, private respondent initiated discharging the business
respondent. functions and prerogatives of the company. And to paint a shade of
validity to this exercise of powers, private respondent, thru fraud,
deceit and machinations duped Lu Chiong Sun into affixing his
signature and thumbprint on a general power of attorney in his
MARTIN, J.: (private respondent's) favor. With the use of this deed, private
respondent closed the accounts of Lu Chiong Sun with the Equitable
This is a petition to review on certiorari the judgment of the Banking Corporation and, thereafter, opened accounts in his own
respondent Court of Appeals in CA-G.R. No. SP-03877, promulgated name with the same bank and with the Associated Banking
on July 17, 1975, which We treat as special civil action (SC Corporation.
Resolution of September 2, 1975), involving the proper appreciation of
the rule on plurality of crimes, otherwise known as "concursus While the criminal suits in particular were pending trial on the merits
delictuorum", and the theory of "continuous crime". before the twelve branches of the City Court of Manila, 1 private
respondent commenced on May 15, 1974 a petition for prohibition
The private respondent Benjamin Lu Hayco was a former employee of with preliminary injunction before the Court of First Instance of Manila
petitioner company in its optical supply business at Sta. Cruz, Manila. (Branch XV) against the petitioners herein and the City Court Judges
On January 5, 1973, one hundred twenty-four (124) complaints of of Manila, claiming that the filing, prosecution and trial of the seventy-
estafa under Article 315, para. 1-b of the Revised Penal Code were five (75) estafa cases against him is not only oppressive, whimsical
filed against him by the petitioner company with the Office of the City and capricious, but also without or in excess of jurisdiction of the
Fiscal of Manila. After the procedural preliminary investigation, the respondents City Fiscal and the City Court Judges of Manila. Private
respondent asserts that all the indictments narrated in the seventy-five
(75) informations were mere components of only one crime, since the
same were only impelled by a single criminal resolution or intent. On
October 31, 1974, the lower court dismissed the petition on the
ground that the series of deposits and the subsequent withdrawals
thereof involved in the criminal cases were not the result of only one
criminal impulse on the part of private respondent.
As a consequence, private respondent Benjamin Lu Hayco appealed
to the Court of Appeals. On July 17, 1975, the Appellate Court
reversed the order of the lower court and granted the petition for
prohibition. It directed the respondent City Fiscal "to cause the
dismissal of the seventy-five (75) criminal cases filed against
petitioner-appellant, to consolidate in one information all the charges
contained in the seventy-five (75) informations and to file the same
with the proper court." The raison d'etre of the ruling of the Court of
Appeals is that:
Where the accused, with intent to defraud his employer, caused the
latter to sign a document by means of deceit and false representation,
which document turned out to be a general power of attorney, and
with the use of said document he closed the accounts of his employer
in two banks and at the same time opened in his name new accounts
in the same banks, and then made collections from the customers of
his employer, depositing them in the bank accounts in his name, the
series of deposits made by him which he later withdrew for his own
use and benefit, constitutes but one crime of estafa, there being only
one criminal resolution and the different acts performed being aimed
at accomplishing the purpose of defrauding his employer."
We thus readily recognize that the singular question in this present
action is whether or not the basic accusations contained in the
seventy-five (75) informations against private respondent constitute
but a single crime of estafa.
It is provided in Article 48 of our Revised Penal Code, as amended by
Act No. 4000, that "(w)hen a single act constitutes two or more grave
or less grave felonies or when an offense is a necessary means for
committing the other, the penalty for the most serious crime shall be
imposed, the same to be applied in its maximum period." The
intention of the Code in installing this particular provision is to regulate
the two cases of concurrence or plurality of crimes which in the field of
legal doctrine are called "real plurality" and "ideal plurality". 2 There is
plurality of crimes or "concurso de delitos" when the actor commits
various delictual acts of the same or different kind. "Ideal plurality" or
"concurso ideal" occurs when a single act gives rise to various
infractions of law. This is illustrated by the very article under
consideration: (a) when a single act constitutes two or more grave or
less grave felonies (described as "delito compuesto" or compound
crime); and (b) when an offense is a necessary means for committing
another offense (described as "delito complejo" or complex proper).
"Real plurality" or "concurso real", on the other hand, arises when the
accused performs an act or different acts with distinct purposes and
resulting in different crimes which are juridically independent. Unlike
"ideal plurality", this "real plurality" is not governed by Article 48.3
Apart and isolated from this plurality of crimes (ideal or real) is what is
known as "delito continuado" or "continuous crime". This is a single
crime consisting of a series of acts arising from a single criminal
resolution or intent not susceptible of division. For Cuello Calon, when
the actor, there being unity of purpose and of right violated, commits
diverse acts, each of which, although of a delictual character,
merely constitutes a partial execution of a single particular delict, such
concurrence or delictual acts is called a "delito continuado". In order
that it may exist, there should be "plurality of acts performed
separately during a period of time; unity of penal provision infringed
upon or violated and unity of criminal intent and purpose, which
means that two or more violations of the same penal provision are
united in one and the same intent leading to the perpetration of the
same criminal purpose or aim."4
It is not difficult to resolve whether a given set of facts constitutes a
single act which produces two or more grave or less grave offenses or
a complex crime under the definition of Article 48. So long as the act
or acts complained of resulted from a single criminal impulse it is
usually held to constitute a single offense to be punished with the
penalty corresponding to the most serious crime, imposed in its
maximum period.5, The test is not whether one of the two offenses is
an essential element of the other. 6 In People v. Pineda ,7 the court
even expressed that "to apply the first half of Article 48, ... there must
be singularity of criminal act; singularity of criminal impulse is not
written into the law." Prior jurisprudence holds that where the
defendant took the thirteen cows at the same time and in
the same place where he found them grazing, he performed but one
act of theft.8 Or, the act of taking the two roosters, in response to the
unity of thought in the criminal purpose on one occasion, constitutes a
single crime of theft. There is no series of acts committed for the
accomplishment of different purposes, but only of one which
was consummated, and which determines the existence of only one
crime. The act of taking the roosters in the same place and on
the same occasion cannot give rise to two crimes having an
independent existence of their own, because there are not two distinct
appropriations nor two intentions that characterize two separate
crimes. 9
In the case before Us, the daily abstractions from and diversions of
private respondent of the deposits made by the customers of the
optical supply company from October 2, 1972 to December 30, 1972,
excluding Saturdays and Sundays, which We assume ex hypothesi,
cannot be considered as proceeding from a single criminal act within
the meaning of Article 48. The abstractions were not made at
the same time and on the same occasion, but on variable dates. Each
day of conversion constitutes a single act with an independent
existence and criminal intent of its own. All the conversions are not
the product of a consolidated or united criminal resolution, because
each conversion is a complete act by itself. Specifically, the
abstractions and the accompanying deposits thereof in the personal
accounts of private respondent cannot be similarly viewed as
"continuous crime". In the above formulation of Cuello Calon,
We cannot consider a defalcation on a certain day as merely
constitutive of partial execution of estafa under Article 315, para. 1-b
of the Revised Penal Code. As earlier pointed out, an individual
abstraction or misappropriation results in a complete
execution or consummation of the delictual act of defalcation. Private
respondent cannot be held to have entertained continously the same
criminal intent in making the first abstraction on October 2, 1972 for
the subsequent abstractions on the following days and months until
December 30, 1972, for the simple reason that he was not possessed
of any fore-knowledge of any deposit by any customer on any day or
occasion and which would pass on to his possession and control. At
most, his intent to misappropriate may arise only when he comes in
possession of the deposits on each business day but not in futuro,
since petitioner company operates only on a day-to-day transaction.
As a result, there could be as many acts of misappropriation as there
are times the private respondent abstracted and/or diverted the
deposits to his own personal use and benefit. Thus, it may be said
that the City Fiscal had acted properly when he filed only one
information for every single day of abstraction and bank deposit made
by private respondent. 10 The similarity of pattern resorted to by
private respondent in making the diversions does not affect the
susceptibility of the acts committed to divisible crimes.
Apropos is the case of People v. Cid, 11 where the Court ruled that the
malversations as well as the falsifications in the months of May, June,
July and August 1936 imputed to the accused "were not the result of
only one resolution to embezzle and falsify, but of four or as many
abstractions or misappropriations had of the funds entrusted to his
care, and of as many falsifications also committed to conceal each of
said case. There is nothing of record to justify the inference that the
intention of the appellant when he committed the malversation in May,
1936 was the same intention which impelled him to commit the other
malversations in June, July, and August." The ruling holds true when
the acts of misappropriation were committed on two different
occasions, the first in January, 1955 to December, 1955, and the
second in January, 1956 to July, 1956. It cannot be pretended that
when the accused disposed of the palay deposit in January, 1955 to
December, 1955, he already had the criminal intent of disposing what
was to be deposited in January, 1956 to July, 1956. 12 There is no
synonymy between the present case and that of People, v.
Sabbun, 13 where the Court held that the illegal collections made on
different dates, i.e., December, 1949; January 1950 to February 1956;
March 1956 to September 1957 constitutes a "continuing offense",
because the said collections were "all part of the fees agreed upon in
compensation for the service" to be rendered by the accused Sabbun
in filing the claim of the spouses Dacquioag for U.S. Veterans benefit
and collecting the pensions received by the widow from time to time.
"The periodical collections form part of a single criminal offense of
collecting a fee which is more than the prescribed amount fixed by the
law" and "were impelled by the same motive, that of collecting fees for
services rendered." As We have said, the various acts of defalcation
perpetrated by private respondent in the present case from October 2,
1972 to December 30, 1972 are susceptible of division with separate
criminal intents.
The respondent Court of Appeals harps upon the act of private
respondent in allegedly inducing, with intent to defraud, Lu Chiong
Sun "to sign a document by means of deceit and false representation,
which document turned out to be a general power of attorney" and
with the use of which, he closed the accounts of the latter in two
banks, at the same time opening in his name new accounts in the
same banks, for its conclusion that the acts complained of against
private respondent constitute one continuous crime of estafa. It is
striking to note, however, that the accusatory pleadings against
private respondent are founded on Article 315, para. 1-b of the
Revised Penal Code, which defines and penalizes estafa by
conversion or misappropriation. In this form of estafa, fraud is not an
essential element. 14 According to Groizard "impudence,
barefacedness covetousness, and disloyalty employed in taking
advantage of an opportunity take here the place formerly occupied by
deceit." 15 "Fraudulent intent" in committing the conversion or diversion
is "very evidently not a necessary element of the form of estafa here
discussed; the breach of confidence involved in the conversion or
diversion of trust funds takes the place of fraudulent intent and is in
itself sufficient. The reason for this is obvious: Grave as the offense is,
comparatively few men misappropriate trust funds with the intention of
defrauding the owner; in most cases the offender hopes to be able to
restore the funds before the defalcation is discovered. We may say in
passing that the view here expressed is further strengthened by the
fact that of the nine paragraphs of Article 535, the paragraph here
under discussion is the only one in which the words "fraud", or
"defraud" do not occur." 16 In other words, the alleged act of private
respondent in causing, with intent to defraud, Lu Chiong Sun to affix
his signature and thumbprint on the general power of attorney is
immaterial and ineffective insofar as the charges of conversions are
concerned. If at all, the said document may serve only the purpose of
closing the accounts of Lu Chiong Sun with the banks and nothing
more. Definitely, there is no necessity for it before private respondent
could commit the acts of defalcation. As a matter of fact, private
respondent resorted to this document only on October 17, 1972, or 15
days after he had already commenced the abstraction on October 2,
1972. 17
an individual crime of estafa has occurred or has been consummated.
The term "continuing" here must be understood in the sense similar to
that of "transitory" and is only intended as a factor in determining the
proper venue or jurisdiction for that matter of the criminal action
pursuant to Section 14, Rule 110 of the Rules of Court. 18 This is so,
because "a person charged with a transitory offense may be tried in
any jurisdiction where the offense is part committed. In transitory or
continuing offense in which some acts material and essential to the
crime and requisite to its consummation occur in one province and
some in another, the court of either province has jurisdiction to try the
case, it being understood that the first court taking cognizance of the
case will exclude the other." 19
ACCORDINGLY, the judgment of the Court of Appeals, subject matter
of this proceeding, is hereby reversed and set aside. The temporary
restraining order issued by this Court on August 7, 1975, enjoining the
enforcement or implementation of the said judgment is hereby made
permanent. No costs.
SO ORDERED.
Castro (Chairman), Teehankee, Makasiar, Esguerra and Muñoz
Palma, JJ., concur.

The characterization or description of estafa as a continuing offense

cannot be validly seized upon by private respondent as basis for its
inference that the acts of abstraction in question constitute but a
single continuing crime of estafa. The sole import of this
characterization is that the necessary elements of estafa
may separately take place in different territorial jurisdictions until the
crime itself is consummated. The moment, however, that the elements
of the crime have completely concurred or transpired, then
 Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. Nos. L-74053-54 January 20, 1988
PEOPLE OF THE PHILIPPINES and SAN MIGUEL
CORPORATION, petitioners,
vs.
NATHANIEL M. GROSPE, Presiding Judge, Branch 44, Regional
Trial Court of Pampanga and MANUEL PARULAN, respondents.
MELENCIO-HERRERA, J.:
A special civil action for certiorari seeking to set aside the Decision of
respondent Presiding Judge of Branch 44, Regional Trial Court of
Pampanga, dismissing Criminal Case No. 2800 for Violation of B.P.
Blg. 22, and Criminal Case No. 2813 for Estafa, for being "bereft of
jurisdiction to pass judgment on the accused on the basis of the
merits of these cases."
Respondent-accused, Manuel Parulan, is an authorized wholesale
dealer of petitioner San Miguel Corporation (SMC, for short) in
Bulacan.
In Criminal Case No. 2800 of the Regional Trial Court of Pampanga,
he was charged with Violation of the Bouncing Checks Law (B.P. Blg.
22 for having issued a check on 13 June 1983 for P86,071.20) in
favor of SMC but which was dishonored for having been drawn
against 'insufficient funds and, in spite of repeated demands, for
having failed and refused to make good said check to the damage
and prejudice of SMC.
In Criminal Case No. 2813 of the same Court, Respondent-accused
was charged with Estafa under Article 315, paragraph 2(d) of the
Revised Penal Code for having made out a check on 18 June 1983 in
the sum of P11,918.80 in favor of SMC in payment of beer he had
purchased, but which check was refused payment for "insufficient
funds" and, in spite of repeated demands, for having failed and
refused to redeem said check to the damage and prejudice of SMC.
The two cases were tried jointly, the witnesses for both prosecution
and defense being the same for the two suits.
Based on the facts and the evidence, Respondent Judge arrived at
the following "Findings and Resolution:"
From the welter of evidence adduced in these two , this
Court is convinced that the two checks involved herein
were issued and signed by the accused in connection
with the beer purchases made by him on various
occasions at the Guiguinto, sales office of SMC at
Guiguinto, Bulacan and which checks he handed and
delivered to the sales Supervisor of SMC, Mr. Ruben
Cornelio, who holds office in that municipality. The
Court finds it rather difficult to believe the claim and
testimony of the accused that these checks which he
admittedly signed and which he delivered to Mr.
Cornelio in blank were filled up without his knowledge
particularly the amounts appearing therein which in the
case of the check involved in Criminal Case No. 2800
amounted to P86,071.20, and, in the case of the check
involved in Criminal Case No. 2813, amounted to
Pl1,918.80. The accused had been engaged in
business for some time involving amounts that are
quite considerable, and it is hard to believe that he will
agree to this kind of arrangement which placed or
exposed him to too much risks and uncertainties.
But even as this Court is convinced that the accused
had issued these checks to the representative of SMC
on the occasions testified to in these cases by the
witnesses for the prosecution which two checks were
subsequently dishonored due to lack of funds resulting
in damage to SMC, the offended party herein, this
Court, after considering the totality of the evidence and
the circumstances that attended the issuance of these
 two checks until they were both dishonored by the
drawee bank, the Planters Development Bank, at
Santa Maria, Bulacan, has come to the conclusion that
it is bereft of jurisdiction to pass judgment on the
accused on the basis of the merits of these cases.
which he reasoned out, thus:
Deceit and damage are the two essential elements that
make up the offenses involving dishonored checks.
And in order that this Court may have jurisdiction to try
these cases, it must be established that both or any
one of these elements composing the offenses charged
must occur or take place within the area over which this
Court has territorial jurisdiction. Here, however, it is
clear that none of these elements took place or
occurred within the jurisdictional area of this Court.
As gleaned from the evidence, the two checks involved
herein were issued by the accused at Guiguinto,
Bulacan. They were delivered and handed to
Supervisor Ruben Cornelio of San Miguel Corporation
in his capacity as the representative of the company
holding office in that municipality where the
transactions of the accused with SMC took place. It
was before Supervisor Cornelio at Guiguinto, Bulacan
that false assurances were made by the accused that
the checks issued by him were good and backed by
sufficient funds in his bank, the Planters Development
Bank, at Santa Maria, Bulacan, only to turn out later on
that this was not so.
The other element of damage pertaining to the
offenses charged in these cases was inflicted on the
offended party, the SMC, right at the moment the
checks issued by the accused were dishonored by the
Planters Development Bank, the drawee bank, at
Santa Maria, Bulacan which received them from the
BPI, San Fernando, Pampanga branch for clearing
purposes. The argument advanced by the prosecution
in its memorandum filed herein that the two checks
were deposited by SMC at the BPI, San Fernando,
Branch, San Fernando, Pampanga, where it
maintained its accounts after receiving these checks
from its Guiguinto Sales Office which bank later on
made the corresponding deductions from the account
of SMC in the amounts covered by the dishonored
checks upon receiving information that the checks so
issued by the accused had been dishonored by the
drawee bank at Santa Maria, Bulacan, is
inconsequential. As earlier stated, the element of
damage was inflicted on the offended party herein right
at the moment and at the place where the checks
issued in its favor were dishonored which is in Santa
Maria, Bulacan.
Respondent Judge then decreed:
WHEREFORE, and in view of all the foregoing,
judgment is hereby rendered dismissing these cases
for lack of jurisdiction.
The bail bond posted by the accused in these cases
are ordered cancelled.
This Petition for certiorari challenges the dismissal of the two criminal
cases on the ground that they were issued with grave abuse of
discretion amounting to lack of jurisdiction.
Respondent-accused adopts the contrary proposition and argues that
the order of dismissal was, in effect, an acquittal not reviewable by
certiorari, and that to set the order aside after plea and trial on the
merits, would subject Respondent-accused to double jeopardy.
Upon the attendant facts and circumstances we uphold the Petition.
The principal ground relied upon by Respondent Judge in dismissing
the criminal cases is that deceit and damage, the two essential
elements that make up the offenses involving dishonored checks, did
not occur within the territorial jurisdiction of his Court in Pampanga,
but rather in Bulacan where false assurances were given by
Respondent-accused and where the checks he had issued were
dishonored. The People maintain, on the other hand, that jurisdiction
is properly vested in the Regional Trial Court of Pampanga.
At the outset, it should be pointed out, as the Solicitor General has
aptly called attention to, that there are two dishonored checks
involved, each the subject of different penal laws and with different
basic elements: (1) On June 13, 1983, Respondent-accused issued
Planters Development Bank (Santa Maria, Bulacan Branch) [PDB]
Check No. 19040865 in the sum of P86,071.20 in favor of SMC, which
was received by the SMC Supervisor at Guiguinto, Bulacan. The
check was forwarded to the SMC Regional Office at San Fernando,
Pampanga, where it was delivered to and received by the SMC
Finance Officer, who then deposited the check with the Bank of the
Philippine Islands (BPI), San Fernando Branch, which is the SMC
depository bank. On July 8,1983, the SMC depository bank received a
notice of dishonor of the said check for "insufficiency of funds" from
the PDB, the drawee bank in Santa Maria, Bulacan. This dishonored
check is the subject of the charge of Violation of the Bouncing Checks
Law (BP Blg. 22) in Criminal Case No. 2800 of the lower Court
(hereafter, the Bouncing Checks Case).
(2) On June 18, 1983, Respondent-accused likewise issued PDB
Check No. 19040872 in the amount of P11,918.80 in favor of SMC,
which was received also by the SMC Supervisor at Guiguinto,
Bulacan, as direct payment for the spot sale of beer. That check was
similarly forwarded by the SMC Supervisor to the SMC Regional
Office in San Fernando, Pampanga, where it was delivered to the
Finance Officer thereat and who, in turn deposited the check with the
SMC depository bank in San Fernando, Pampanga. On July 8,1983,
the SMC depository bank received a notice of dishonor for
"insufficiency of funds" from the drawee bank, the PDB, in Santa
Maria, Bulacan. This dishonored check is the subject of the
prosecution for Estafa by postdating or issuing a bad check under
Article 315, paragraph 2(d) of the Revised Penal Code in Criminal
Case No, 2813 of the lower Court (briefly, the Estafa Case).
In the crime of Estafa by postdating or issuing a bad check, deceit and
damage are essential elements of the offense (U.S. vs. Rivera, 23
Phil. 383-390) and have to be established with satisfactory proof to
warrant conviction.
For Violation of the Bouncing Checks Law, on the other hand, the
elements of deceit and damage are not essential nor required. An
essential element of that offense is knowledge on the part of the
maker or drawer of the check of the insufficiency of his funds (Lozano
vs. Hon. Martinez, Nos. L-63419, etc., December 18, 1986; 146
SCRA 323; Dingle vs. IAC, G.R. No. 75243, March 16, 1987,148
SCRA 595). The Anti-Bouncing Checks Law makes the mere act of
issuing a worthless check a special offense punishable thereunder
(Cruz vs. IAC, No. I,66327, May 28,1984,129 SCRA 490. Malice and
intent in issuing the worthless check are immaterial, the offense
being malum prohibitum (Que vs. People of the Philippines, et. al.,
G.R. Nos. 75217-18, September 21, 1987). The gravamen of the
offense is the issuance of a check, not the non-payment of an
obligation (Lozano vs. Hon. Martinez, supra).
A. With the distinction clarified, the threshold question is whether or
not venue was sufficiently conferred in the Regional Trial Court of
Pampanga in the two cases.
Section 14(a) of Rule 110 of the Revised Rules of Court, which has
been carried over in Section 15(a) of Rule 110 of the 1985 Rules of
Criminal Procedure, specifically provides:
SEC. 14. Place where action is to be instituted —
(a) In all criminal prosecutions the action shall be
instituted and tried in the court of the municipality or
province wherein the offense was committed or any
one of the essential ingredients thereof took place.
In other words, a person charged with a transitory crime may be
validly tried in any municipality or province where the offense was in
part committed. In transitory or continuing offenses in which some
acts material and essential to the crime and requisite to its
consummation occur in one province and some in another, the Court
of either province has jurisdiction to try the case, it being understood
that the first Court taking cognizance of the Case will exclude the
others (Tuzon vs. Cruz. No. L-27410, August 28, 1975, 66 SCRA
235). However, if an the acts material and essential to the crime and
requisite of its consummation occurred in one municipality or territory,
the Court of that municipality or territory has the sole jurisdiction to try
the case (People vs. Yabut, L-42902, April 29, 1977, 76 SCRA 624).
Estafa by postdating or issuing a bad check, may be a transitory or
continuing offense. Its basic elements of deceit and damage may
arise independently in separate places (People vs. Yabut, supra). In
this case, deceit took place in San Fernando, Pampanga, while the
damage was inflicted in Bulacan where the cheek was dishonored by
the drawee bank in that place (See People vs. Yabut, supra).
Jurisdiction may, therefore, be entertained by either the Bulacan Court
or the Pampanga Court.
For while the subject check was issued in Guiguinto, Bulacan, it was
not completely drawn thereat, but in San Fernando, Pampanga,
where it was uttered and delivered. "What is of decisive importance is
the delivery thereat The delivery of the instrument is the final act
essential to its consummation as an obligation" (People vs. Larue, 83
P. 2d 725, cited in People vs. Yabut, supra). For although the check
was received by the SMC Sales Supervisor at Guiguinto, Bulacan,
that was not the delivery in contemplation of law to the payee, SMC.
Said supervisor was not the person who could take the check as a
holder, that is, as a payee or indorsee thereof, with the intent to
transfer title thereto. The rule is that the issuance as well as the
delivery of the check must be to a person who takes it as a holder,
which means "the payee or indorsee of a bill or note, who is in
possession of it, or the bearer, thereof" (Sec. 190, Negotiable
Instruments Law, cited in People vs. Yabut, supra.) Thus, said
representative had to forward the check to the SMC Regional Office in
San Fernando, Pampanga, which was delivered to the Finance Officer
thereat who, in turn, deposited it at the SMC depository bank in San
Fernando, Pampanga. The element of deceit, therefore, took place in
San Fernando, Pampanga, where the rubber check was legally issued
and delivered so that jurisdiction could properly be laid upon the Court
in that locality.
The estafa charged in the two informations involved in
the case before Us appears to be transitory or
continuing in nature. Deceit has taken place in Malolos,
Bulacan, while the damage in Caloocan City, where the
checks were dishonored by the drawee banks there.
Jurisdiction can, therefore, be entertained by either the
Malolos court or the Caloocan court. While the subject
checks were written, signed, or dated in Caloocan City,
they were not completely made or drawn there, but in
Malolos, Bulacan, where they were uttered and
delivered. That is the place of business and residence
of the payee. The place where the bills were written,
signed or dated does not necessarily fix or determine
the place where they were executed. What is of
decisive importance is the delivery thereof. The
delivery of the instrument is the final act essential to its
consummation as an obligation (People vs. Larue, 83
P. 2d 725). An undelivered bill or note is inoperative.
Until delivery, the contract is revocable (Ogden,
Negotiable Instruments, 5th ed., at 107). And the
issuance as well as the delivery of the check must be
to a person who takes it as a holder, which means
"(t)he payee or indorsee of a bill or note, who is in
possession of it, or the bearer thereof" (Sec. 190,
Negotiable Instruments Law). Delivery of the check
signifies transfer of possession, whether actual or
constructive, from one person to another with intent to
transfer title thereto (Bailey, Brady on Bank Checks,
3rd ed. at 57-59; Sec. 190, Negotiable Instruments
Law). Thus, the penalizing clause of the provision of
Art. 315, par. 2(d) states: "By postdating a check, or
issuing a check in payment of an obligation when the
offender had no funds in the bank, or his funds
deposited therein were not sufficient to cover the
amount of the check," Clearly, therefore, the element of
deceit thru the issuance and delivery of the worthless
checks to the complainant took place in Malolos,
Bulacan, conferring upon a court in that locality
jurisdiction to try the case.
In respect of the Bouncing Checks Case, the offense also appears to
be continuing in nature. It is true that the offense is committed by the
very fact of its performance (Colmenares vs. Villar, No. L-27126, May
29, 1970, 33 SCRA 186); and that the Bouncing Checks Law
penalizes not only the fact of dishonor of a check but also the act of
making or drawing and issuance of a bouncing check (People vs.
Hon. Veridiano, II, No. L-62243, 132 SCRA 523). The case, therefore,
could have been filed also in Bulacan. As held in Que vs. People of
the Philippines, G.R. Nos. 75217-18, September 11, 1987 "the
determinative factor (in determining venue) is the place of the
issuance of the check". However, it is likewise true that knowledge on
the part of the maker or drawer of the check of the insufficiency of his
funds, which is an essential ingredient of the offense is by itself a
continuing eventuality, whether the accused be within one territory or
another (People vs. Hon. Manzanilla, G.R. Nos. 66003-04, December
11, 1987). Accordingly, jurisdiction to take cognizance of the offense
also lies in the Regional Trial Court of Pampanga.
And, as pointed out in the Manzanilla case, jurisdiction or venue is
determined by the allegations in the Information, which are controlling
(Arches vs. Bellosillo, 81 Phil. 190, 193, cited in Tuzon vs. Cruz, No.
L-27410, August 28, 1975, 66 SCRA 235). The Information filed
herein specifically alleges that the crime was committed in San
Fernando, Pampanga, and, therefore, within the jurisdiction of the
Court below.
B. The dismissal of the subject criminal cases by Respondent Judge,
predicated on his lack of jurisdiction, is correctable by Certiorari. The
error committed is one of jurisdiction and not an error of judgment on
the merits. Well-settled is the rule that questions covering
jurisdictional matters may be averred in a petition for certiorari,
inclusive of matters of grave abuse of discretion, which are equivalent
to lack of jurisdiction (City of Davao vs. Dept. of Labor, No. L-19488,
January 30, 1965, 13 SCRA 111, 115). An error of jurisdiction renders
whatever order of the Trial Court nun and void.
Municipal Court have not been lawfully terminated.
Accordingly, there is no second proceeding to speak of
and no double jeopardy. A continuation of the
proceedings against the accused for serious physical
injuries is in order. (People vs. Mogol, 131 SCRA 306,
308).
In sum, Respondent Judge had jurisdiction to try and decide the
subject criminal case, venue having been properly laid.
WHEREFORE, the Decision of Respondent Judge of February 17,
1986 is hereby set aside and he is hereby ordered to reassume
jurisdiction over Criminal Cases Nos. 2800 and 2813 of his Court and
to render judgment of either conviction or acquittal in accordance with
the evidence already adduced during the joint trial of said two cases.
SO ORDERED.
Yap (Chairman), Paras, Padilla and Sarmiento, JJ., concur.

C. The present petition for certiorari seeking to set aside the void
Decision of Respondent Judge does not place Respondent-accused
in double jeopardy for the same offense. It will be recalled that the
questioned judgment was not an adjudication on the merits. It was a
dismissal upon Respondent Judge's erroneous conclusion that his
Court had no "territorial jurisdiction" over the cases. Where an order
dismissing a criminal case is not a decision on the merits, it cannot
bar as res judicata a subsequent case based on the same offense
(People vs. Bellosillo, No. L-18512, December 27, 1963, 9 SCRA 835,
837).

The dismissal being null and void the proceedings before the Trial
Court may not be said to have been lawfully terminated. There is
therefore, no second proceeding which would subject the accused to
double jeopardy.

Since the order of dismissal was without authority and,

therefore, null and void, the proceedings before the
 Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 106847. March 5, 1993.
PATRICIO P. DIAZ, petitioner, vs. JUDGE SANTOS B. ADIONG,
RTC, Br. 8, Marawi City, SULTAN MACORRO L. MACUMBAL,
SULTAN LINOG M. INDOL, MACABANGKIT LANTO and
MOHAMADALI ABEDIN, respondents.
Rex J.M.A. Fernandez for petitioner.
Mangurun B. Batuampar for respondents.
SYLLABUS
1. REMEDIAL LAW; ACTIONS; VENUE OF LIBEL CASE WHERE
OFFENDED PARTY IS AN PUBLIC OFFICIAL. — From the provision
of Article 360, third paragraph of the Revised Penal Code as
amended by R.A. 4363, it is clear that an offended party who is at the
same time a public official can only institute an action arising from libel
in two (2) venues: the place where he holds office, and the place
where the alleged libelous articles were printed and first published.
2. ID.; ID.; IMPROPER VENUE; MUST BE RAISED IN A NOTION TO
DISMISS PRIOR TO A RESPONSIVE PLEADING. — Unless and
until the defendant objects to the venue in a motion to dismiss prior to
a responsive pleading, the venue cannot truly be said to have been
improperly laid since, for all practical intents and purposes, the venue
though technically wrong may yet be considered acceptable to the
parties for whose convenience the rules on venue had been devised.
3. ID.; ID.; ID.; WAIVED IN CASE AT BAR BY FILING ANSWER. —
Petitioner Diaz then, as defendant in the court below, should have
timely challenged the venue laid in Marawi City in a motion to dismiss,
pursuant to Sec. 4, Rule 4, of the Rules of Court. Unfortunately,
petitioner had already submitted himself to the jurisdiction of the trial
court when he filed his Answer to the Complaint with Counterclaim.
His motion to dismiss was therefore belatedly filed and could no
longer deprive the trial court of jurisdiction to hear and decide the
instant civil action for damages. Well-settled is the rule that improper
venue may be waived and such waiver may occur by laches. Sec. 1 of
Rule 16 provides that objections to improper venue must be made in a
motion to dismiss before any responsive pleading is filed. Responsive
pleadings are those which seek affirmative relief and set up defenses.
Consequently, having already submitted his person to the jurisdiction
of the trial court, petitioner may no longer object to the venue which,
although mandatory in the instant case, is nevertheless waivable. As
such, improper venue must be seasonably raised, otherwise, it may
be deemed waived.
4. ID.; ID.; ID.; RELATES TO TRIAL AND NOT TO JURISDICTION.
— Indeed, the laying of venue is procedural rather than substantive,
relating as it does to jurisdiction of the court over the person rather
than the subject matter. Venue relates to trial and not to jurisdiction.
DECISION
BELLOSILLO, J p:
VENUE in the instant civil action for damages arising from libel was
improperly laid; nonetheless, the trial court refused to dismiss the
complaint. Hence, this Petition for Certiorari, with prayer for the
issuance of a temporary restraining order, assailing that order of
denial 1 as well as the order denying reconsideration. 2
The facts: On 16 July 1991, the Mindanao Kris, a newspaper of
general circulation in Cotabato City, published in its front page the
news article captioned "6-Point Complaint Filed vs. Macumbal," and in
its Publisher's Notes the editorial, "Toll of Corruption," which exposed
alleged anomalies by key officials in the Regional Office of the
Department of Environment and Natural Resources. 3
On 22 July 1991, the public officers alluded to, namely, private
respondents Sultan Macorro L. Macumbal, Sultan Linog M. Indol, Atty.
Macabangkit M. Lanto and Atty. Mohamadali Abedin, instituted
separate criminal and civil complaints arising from the libel before the
City Prosecutor's Office and the Regional Trial Court in Marawi City.
The publisher-editor of the Mindanao Kris, petitioner Patricio P. Diaz,
and Mamala B. Pagandaman, who executed a sworn statement
attesting to the alleged corruption, were named respondents in both
complaints. 4
On 2 September 1991, the City Prosecutor's Office dismissed the
criminal case thus 5 —
"WHEREFORE . . . this investigation in the light of Agbayani vs. Sayo
case finds that it has no jurisdiction to handle this case and that the
same be filed or instituted in Cotabato City where complainant is
officially holding office at the time respondents caused the publication
of the complained news item in the Mindanao Kris in Cotabato City,
for which reason it is recommended that this charge be dropped for
lack of jurisdiction."
In the interim, the civil complaint for damages, docketed as Civil Case
No. 385-91 and raffled to Branch 10 of the Regional Trial Court in
Marawi City, was set for Pre-Trial Conference. The defendants therein
had already filed their respective Answers with Counterclaim.
On 18 November 1991, petitioner Diaz moved for the dismissal of the
action for damages on the ground that the trial court did not have
jurisdiction over the subject matter. He vehemently argued that the
complaint should have been filed in Cotabato City and not in Marawi
City. 6
Pending action on the motion, the presiding judge of Branch 10
inhibited himself from the case which was thereafter reraffled to the
sala of respondent judge.
On 15 June 1991, respondent judge denied petitioner's Motion to
Dismiss for lack of merit. Diaz thereafter moved for reconsideration of
the order of denial. The motion was also denied in the Order of 27
August 1991, prompting petitioner to seek relief therefrom.
Petitioner Diaz contends that the civil action for damages could not be
rightfully filed in Marawi City as none of the private respondents, who
are all public officers, held office in Marawi City; neither were the
alleged libelous news items published in that city. Consequently, it is
petitioner's view that the Regional Trial Court in Marawi City has no
jurisdiction to entertain the civil action for damages.
The petitioner is correct. Not one of the respondents then held office
in Marawi City: respondent Macumbal was the Regional Director for
Region XII of the DENR and held office in Cotabato City; respondent
Indol was the Provincial Environment and Natural Resources Officer
of Lanao del Norte and held office in that province; respondent Lanto
was a consultant of the Secretary of the DENR and, as averred in the
complaint, was temporarily residing in Quezon City; and, respondent
Abedin was the Chief of the Legal Division of the DENR Regional
Office in Cotabato City. 7 Indeed, private respondents do not deny
that their main place of work was not in Marawi City, although they
had sub-offices therein.
Apparently, the claim of private respondents that they maintained sub-
offices in Marawi City is a mere afterthought, considering that it was
made following the dismissal of their criminal complaint by the City
Prosecutor of Marawi City. Significantly, in their complaint in civil Case
No. 385-91 respondents simply alleged that they were residents of
Marawi City, except for respondent Lanto who was then temporarily
residing in Quezon City, and that they were public officers, nothing
more. This averment is not enough to vest jurisdiction upon the
Regional Trial Court of Marawi City and may be properly assailed in a
motion to dismiss.
The Comment of private respondents that Lanto was at the time of the
commission of the offense actually holding office in Marawi City as
consultant of LASURECO can neither be given credence because this
is inconsistent with their allegation in their complaint that respondent
Lanto, as consultant of the Secretary of the DENR, was temporarily
residing in Quezon City.
Moreover, it is admitted that the libelous articles were published and
printed in Cotabato City. Thus, respondents were limited in their
choice of venue for their action for damages only to Cotabato City
where Macumbal, Lanto and Abedin had their office and Lanao del
Norte where Indol worked. Marawi City is not among those where
venue can be laid.
The third paragraph of Art. 360 of the Revised Penal Code, as
amended by R.A. No. 4363, specifically requires that —
"The criminal and civil action for damages in cases of written
defamations as provided for in this chapter, shall be filed
simultaneously or separately with the Court of First Instance (now
Regional Trial Court) of the province or city where the libelous article
is printed and first published or where any of the offended parties
actually resides at the time of the commission of the offense:
Provided, however, that where one of the offended parties is a public
officer . . . (who) does not hold office in the City of Manila, the action
shall be filed in the Court of First Instance (Regional Trial Court) of the
province or city where he held office at the time of the commission of
the offense or where the libelous article is printed and first published
and in case one of the the offended parties is a private individual, the
action shall be filed in the Court of First Instance of the province or
city where he actually resides at the time of the commission of the
offense or where the libelous matter is printed and first published . . . .
" (emphasis supplied)
From the foregoing provision, it is clear that an offended party who is
at the same time a public official can only institute an action arising
from libel in two (2) venues: the place where he holds office, and the
place where the alleged libelous articles were printed and first
published.
Private respondents thus appear to have misread the provisions of
Art. 360 of the Revised Penal Code, as amended, when they filed
their criminal and civil complaints in Marawi City. They deemed as
sufficient to vest jurisdiction upon the Regional Trial Court of Marawi
City the allegation that "plaintiffs are all of legal age, all married,
Government officials by occupation and residents of Marawi City." 8
But they are wrong.
Consequently, it is indubitable that venue was improperly laid.
However, unless and until the defendant objects to the venue in a
motion to dismiss prior to a responsive pleading, the venue cannot
truly be said to have been improperly laid since, for all practical intents
and purposes, the venue though technically wrong may yet be
considered acceptable to the parties for whose convenience the rules
on venue had been devised. 9
Petitioner Diaz then, as defendant in the court below, should have
timely challenged the venue laid in Marawi City in a motion to dismiss,
pursuant to Sec. 4, Rule 4, of the Rules of Court. Unfortunately,
petitioner had already submitted himself to the jurisdiction of the trial
court when he filed his Answer to the Complaint with Counterclaim. 10
His motion to dismiss was therefore belatedly filed and could no
longer deprive the trial court of jurisdiction to hear and decide the
instant civil action for damages. Well-settled is the rule that improper
venue may be waived and such waiver may occur by laches. 11
Petitioner was obviously aware of this rule when he anchored his
motion to dismiss on lack of cause of action over the subject matter,
relying on this Court's ruling in Time, Inc. v. Reyes. 12 Therein, We
declared that the Court of First Instance of Rizal was without
jurisdiction to take cognizance of Civil Case No. 10403 because the
complainants held office in Manila, not in Rizal, while the alleged
libelous articles were published abroad.
It may be noted that in Time, Inc. v. Reyes, the defendant therein
moved to dismiss the case without first submitting to the jurisdiction of
the lower court, which is not the case before Us. More, venue in an
action arising from libel is only mandatory if it is not waived by
defendant. Thus —
"The rule is that where a statute creates a right and provides a
remedy for its enforcement, the remedy is exclusive; and where it
confers jurisdiction upon a particular court, that jurisdiction is likewise
exclusive, unless otherwise provided. Hence, the venue provisions of
Republic Act No. 4363 should be deemed mandatory for the party
bringing the action, unless the question of venue should be waived by
the defendant . . . . " 13
Withal, objections to venue in civil actions arising from libel may be
waived; it does not, after all, involve a question of jurisdiction. Indeed,
the laying of venue is procedural rather than substantive, relating as it
does to jurisdiction of the court over the person rather than the subject
matter. 14 Venue relates to trial and not to jurisdiction.
Finally, Sec. 1 of Rule 16 provides that objections to improper venue
must be made in a motion to dismiss before any responsive pleading
is filed. Responsive pleadings are those which seek affirmative relief
and set up defenses. Consequently, having already submitted his
person to the jurisdiction of the trial court, petitioner may no longer
object to the venue which, although mandatory in the instant case, is
nevertheless waivable. As such, improper venue must be seasonably
raised, otherwise, it may be deemed waived.

WHEREFORE, for lack of merit, the Petition for Certiorari is

DISMISSED and the Temporary Restraining Order heretofore issued
is LIFTED.

This case is remanded to the court of origin for further proceedings.

SO ORDERED.