116 Araignment and Plea

Republic Act No.8493 February 12, 1998 AN ACT TO ENSURE A SPEEDY TRIAL OF ALL CRIMINAL CASES BEFORE THE SANDIGANBAYAN, REGIONAL TRIAL COURT, METROPOLITAN TRIAL COURT, MUNICIPAL TRIAL COURT, AND MUNICIPAL CIRCUIT TRIAL COURT, APPROPRIATING FUNDS THEREFOR, AND FOR OTHER PURPOSES Be it enacted by the Senate and House of Representatives of the Philippines in Congress assembled:: Section 1. Title. - This Act shall be known as the "Speedy Trial Act of 1998." Section 2. Mandatory Pre-Trial in Criminal Cases. - In all cases cognizable by the Municipal Trial Court, Municipal Circuit Trial Court, Metropolitan Trial Court, Regional Trial Court, and the Sandiganbayan, the justice or judge shall, after arraignment, order a pre-trial conference to consider the following: (a) Plea bargaining; (b) Stipulation of Facts; (c) Marking for identification of evidence of parties; (d) Waiver of objections to admissibility of evidence; and (e) Such other matters as will promote a fair and expeditious trial. Section 3. Pre-Trial Agreement. - All agreements or admissions made or entered into during the pre-trial conference shall be reduced to writing and signed by the accused and counsel, otherwise the same shall not be used in evidence against the accused. The agreements in relation to matters referred to in Section 2 hereof is subject to the approval of the court: Provided, That the agreement on the plea of the accused to a lesser offense may only be revised, modified, or annulled by the court when the same is contrary to law, public morals, or public policy. Section 4. Nonappearance at Pre-Trial Conference. - Where counsel for the accused or the prosecutor does not appear at the pre-trial conference and does not offer an acceptable excuse for his/her lack of cooperation, the pre-trial justice or judge may impose proper sanctions or penalties. Section 5. Pre-Trial Order. - After the pre-trial conference, the court shall issue an order reciting the actions taken, the facts stipulated, and evidence marked. Such order shall bind the parties, limit the trial to matters not disposed of and control the course of action during the trial, unless modified by the court to prevent manifest injustice. Section 6. Time Limit for Trial. - In criminal cases involving persons charged of a crime, except those subject to the Rules on Summary Procedure, or where the penalty prescribed by law does not exceed six (6) months imprisonment, or a fine of One thousand pesos (P1,000.00) or both, irrespective of other imposable penalties, the justice or judge shall, after consultation with the public prosecutor and the counsel for the accused, set the case for continuous trial on a weekly or other shortterm trial calendar at the earliest possible time so as to ensure speedy trial. In no case shall the entire trial period exceed one hundred eighty (180) days from the first day of trial, except as otherwise authorized by the Chief Justice of the Supreme Court pursuant to Section 3, Rule 22 of the Rules of Court. Section 7. Time Limit Between Filing of Information and Arraignment and Between Arraignment and Trial.- The arraignment of an accused shall be held within thirty (30) days from the filing of the information, or from the date the accused has appeared before the justice, judge or court in which the charge is pending, whichever date last occurs. Thereafter, where a plea of not guilty is entered, the accused shall have at least fifteen (15) days to prepare for trial. Trial shall commence within thirty (30) days from arraignment as fixed by the court. If the accused pleads not guilty to the crime charged, he/she shall state whether he/she interposes a negative or affirmative defense. A negative defense shall require the prosecution to prove the guilt of the accused beyond reasonable doubt, while an affirmative defense may modify the order of trial and require the accused to prove such defense by clear and convincing evidence. Section 8. Time Limit Following an Order for New Trial. - If the accused is to be tried again following an order of a court for a new trial, the trial shall commence within thirty (30) days from the date the order for a new trial becomes final, except that the court retrying the case may extend such period but in any case shall not exceed one hundred eighty (180) days from the date the order for a new trial becomes final if unavailability of witnesses or other factors resulting from passage of time shall make trial within thirty (30) days impractical. Section 9. Extended Time Limit. - Notwithstanding the provisions of Section 7 of this Act, for the first twelve-calendar-month period following its effectivity, the time limit with respect to the period from arraignment to trial imposed by Section 7 of this Act shall be one hundred eighty (180) days. For the second twelve-month period the time limit shall be one hundred twenty (120) days, and for the third twelve-month period the time limit with respect to the period from arraignment to trial shall be eighty (80) days. Section 10. Exclusions. - The following periods of delay shall be excluded in computing the time within which trial must commence: (a) Any period of delay resulting from other proceedings concerning the accused, including but not limited to the following: (1) delay resulting from an examination of the accused, and hearing on his/her mental competency, or physical incapacity; (2) delay resulting from trials with respect to charges against the accused; (3) delay resulting from interlocutory appeals; (4) delay resulting from hearings on pre-trial motions: Provided, That the delay does not exceed thirty (30) days, (5) delay resulting from orders of inhibition, or proceedings relating to change of venue of cases or transfer from other courts; (6) delay resulting from a finding of the existence of a valid prejudicial question; and (7) delay reasonably attributable to any period, not to exceed thirty (30) days, during which any proceeding concerning the accused is actually under advisement. (b) Any period of delay resulting from the absence or unavailability of the accused or an essential witness. For purposes of this subparagraph, an accused or an essential witness shall be considered absent when his/her whereabouts are unknown and, in addition, he/she is attempting to avoid apprehension or prosecution or his/her whereabouts cannot be determined by due diligence. An accused or an essential witness shall be considered unavailable whenever his/her whereabouts are known but his/her presence for trial cannot be obtained by due diligence or he/she resists appearing at or being returned for trial. (c) Any period of delay resulting from the fact that the accused is mentally incompetent or physically unable to stand trial. (d) If the information is dismissed upon motion of the prosecution and thereafter a charge is filed against the accused for the same offense, or any offense required to be joined with that offense, any period of delay from the date the charge was dismissed to the date the time limitation would commence to run as to the subsequent charge had there been no previous charge. (e) A reasonable period of delay when the accused is joined for trial with a coaccused over whom the court has not acquired jurisdiction, or as to whom the time for trial has not run and no motion for severance has been granted. (f) Any period of delay resulting from a continuance granted by any justice or judge motu propio or on motion of the accused or his/her counsel or at the request of the public prosecutor, if the justice or judge granted such continuance on the basis of his/her findings that the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial. No such period of delay resulting from a continuance granted by the court in accordance with this subparagraph shall be excludable under this section unless the court sets forth, in the record of the case, either orally or in writing, its reasons for finding that the ends of justice the information shall be dismissed on motion of the accused. If at any time thereafter the prisoner informs the person having custody that he/she demands trial. No continuance under subparagraph (f) of Section 10 shall be granted because of general congestion of the court's calendar. either because he/she is charged of a bailable crime and has no means to post bail. or is charged of a non-bailable crime. . Section 11.served by the granting of such continuance outweigh the best interests of the public and the accused in a speedy trial. the prisoner shall be made available to that public attorney. or result in a miscarriage of justice. the person having custody of the prisoner shall promptly advise the prisoner of the charge and of his/her right to demand trial. or is serving a term of imprisonment in any penal institution. due to the number of accused or the nature of the prosecution or otherwise. .If the public attorney knows that a person charged of a crime is preventively detained. or cause a notice to be served on the person having custody of the prisoner mandating such person to so advise the prisoner of his/her right to demand trial. Public Attorney's Duties Where Accused is Imprisoned. The accused shall have the burden of proof of supporting such motion but the prosecution shall have the burden of going forward with the evidence in connection with the exclusion of time under Section 10 of this Act. (b) Upon receipt of a notice. Factors for Granting Continuance. . . (b) Whether the case taken as a whole is so novel. that it is unreasonable to expect adequate preparation within the periods of time established by this Act. (d) When the person having custody of the prisoner receives from the public attorney a properly supported request for temporary custody of the prisoner for trial. Section 12. so unusual and so complex.If an accused is not brought to trial within the time limit required by Section 7 of this Act as extended by Section 9. (c) Upon receipt of such notice. the public attorney shall promptly seek to obtain the presence of the prisoner for trial. or lack of diligent preparation or failure to obtain available witnesses on the part of the public prosecutor. the public attorney shall promptly: (a) Undertake to obtain the presence of the prisoner for trial.The factors. Remedy Where Accused is Not Brought to Trial Within the Time Limit. among others. such person shall cause notice to that effect to be sent promptly to the public attorney. Section 13. which a justice or judge shall consider in determining whether to grant a continuance under subparagraph (f) of Section 10 of this Act are as follows: (a) Whether the failure to grant such a continuance in the proceeding would be likely to make a continuation of such proceeding impossible. administrative orders and circulars which shall seek to accelerate the disposition of criminal cases.The Supreme Court shall promulgate rules. The rules. the facts and circumstances of the case which led to the dismissal. the court may. fifty percent (50%) of the compensation to which he/she is entitled in connection with his/her defense of the accused.00). Rules and Regulations. or (d) otherwise willfully fails to proceed to trial without justification consistent with the provisions of this Act. by imposing a fine not exceeding. . Section 14. Failure of the accused to move for dismissal prior to trial or entry of a plea of guilty shall constitute a waiver of the right to dismissal under this section. the public prosecution or public attorney: (a) knowingly allows the case to be set for trial without disclosing the fact that a necessary witness would be unavailable for trial. punish any such counsel or attorney. Section 15. The court shall follow the procedures established in the Rules of Court in punishing any counsel or public prosecutor pursuant to this section.In any case in which counsel for the accused. regulations. the seriousness of the offense. among other factors. and the impact of a reprosecution on the implementation of this Act and on the administration of justice.In determining whether to dismiss the case with or without prejudice. administrative orders and circulars formulated shall provide sanctions against justices and judges who willfully fail to proceed to trial without justification consistent with the provisions of this Act. Sanctions. regulations.000. the court shall consider. as follows: (1) in the case of a counsel privately retained in connection with the defense of an accused. . The authority to punish provided for by this section shall be in addition to any other authority or power available to the court. and (3) by denying any defense counsel or public prosecutor the right to practice before the court considering the case for a period not exceeding thirty (30) days. . without prejudice to any appropriate criminal and/or administrative charges to be instituted by the proper party against the erring counsel if and when warranted. (2) by imposing on any appointed counsel de officio or public prosecutor a fine not exceeding Ten thousand pesos (10. (b) files a motion solely for the purpose of delay which he/she knows is totally frivolous and without merit. (c) makes a statement for the purpose of obtaining continuance which he/she knows to be false and which is material to the granting of a continuance. Section 16.In case any provision of this Act is declared unconstitutional.For the effective implementation of the rules. Funding. That Section 7 of this Act shall become effective after the expiration of the aforementioned third-calendar-month period provided in Section 9 of this Act. Effectivity. .000. Act Not a Bar to Speedy Trial Claim Under the Constitution. .All laws.000. the amount of Twenty million pesos (P20. Approved: February 12. No provision of this Act shall be interpreted as a bar to any claim of denial of speedy trial as required by Article III. Separability Clause. administrative orders and circulars promulgated under this Act. Section 19.00) annually shall be appropriated from the allocation of the Supreme Court under the General Appropriations Act. rules and regulations or parts thereof inconsistent with the provisions of this Act are hereby repealed or modified accordingly. the other provisions shall remain in effect. such additional amounts as may be necessary for its continued implementation shall be included in the annual General Appropriations Act. Section 18. . 1998 .This Act shall take effect after fifteen (15) days following its publication in the Official Gazette or in any newspaper of general circulation: Provided. Repealing Clause. executive orders. regulations. Section 20. presidential decrees. Thereafter. Section 17. . Section 14(2) of the 1987 Constitution. Dr. DECISION PER CURIAM: Nine years and four months ago this Court declared: Rape is a nauseating crime that deserves the condemnation of all decent person who recognize that a woman’s cherished chastity is hers alone to surrender of her own free will. in view of the death penalty imposed by it for the crime of rape. Florante Baltazar. Mendoza. assisted by her sister Fedelina Agbayani. By inflicting his animal greed on her in a disgusting coercion of incestuous lust. the Station Investigation and Intelligence Division of the National Capital Region Command. this Court finds itself repeating this declaration. 7659. with the prosecution presenting the first witness. The latter yields only to biological impulses and is unfettered by social inhibitions when it mates with its own kin.[4] On 12 September 1994.[1] At the end of the day.[2] Before this Court on automatic review is the decision[3] of the Regional Trial Court of Quezon City. entered a plea of not guilty. Branch 106. assisted by Attys.Rule 116 PEOPLE OF THE PHILIPPINES. a complaint[6] for rape signed by EDEN. a Medico-Legal . The act becomes doubly repulsive where the outrage is perpetrated on one’s own flesh and blood for the culprit is reduced to lower than the lowly animal.[5] After appropriate preliminary investigation. accused-appellant. Gonzales. defined and penalized under Article 335 of the Revised Penal Code. Whoever violates that will descends to the level of the odious beast. but the man who rapes his own daughter violates not only her purity and her trust but also the mores of his society which he has scornfully defied. The case was docketed as Criminal Case No. as amended by R. trial on the merits immediately followed. endorsed to the Office of the City Prosecutor of Quezon City the complaint of Eden Agbayani (hereafter EDEN) for rape against her father. Philippine National Police (PNP). was filed against appellant with the Regional Trial Court of Quezon City on 27 October. pre-trial and trial on 22 December 1994. he forfeits all respect as a human being and is justly spurned by all. then set for arraignment. appellant. City Prosecutor Charito B. and subscribed and sworn to before Asst. not least of all by the fruit of his own loins whose progeny he has forever stained with his shameful and shameless lechery. after resolving this case of 14-year-old Eden Agbayani who charged her own father with rape committed in the sanctity of their rented room on 19 July 1994. herein accused-appellant Eduardo Agbayani y. Samuel Baldado and Edwin dela Cruz as counsel de oficio. [8] Upon agreement of the parties. 1994. Q-94-59149. EDUARDO AGBAYANI y MENDOZA. plaintiff-appellee vs.[7] At his arraignment on 22 December 1994.A. Officer of the PNP Crime Laboratory. as well as EN who identified her and Fedelina’s affidavit of desistance. after having been duly sworn to in accordance with law do hereby depose and states [sic]: That we are the complainant [sic] against our father. the trial court ordered her “committed to incarceration and imprisonment within the period provided by law. sister of Eden Agbayani. the defense presented appellant. with the references to the pages of the stenographic notes and exhibits deleted.[12] During these hearings. Adoracion M. appellant was represented by Atty. the prosecution had EDEN back on the witness stand. [14] which was subscribed and sworn to before notary public Eranio Cedillo on 6 February 1995. FEDELINA and DODIMA AGBAYANI.00 upon EDEN’s motion for reconsideration. Kaniogan.”[15] which penalty however was modified to a fine of P200. complainant and Fedelina Agbayani. Bulacan. This affidavit was executed freely and voluntarily.. Metro Manila. Eden Agbayani.[10] On the succeeding dates of trial. 59149. Baldado. She retracted her affidavit of desistance and claimed that she had signed it under coercion by her mother and elder sister. The case was.[16] On rebuttal. Arturo Temanil of the Public Attorney’s Office. That I am executing this affidavit for purposes of finally withdrawing the instant case and therefrom requesting this Honorable Court to dismiss the case against our father. Cruz. That after evaluating the circumstance that lead [sic] to the filing of the instant case I formally realize that the incident between us and my father is purely family problem that arise from the disciplinarian attitude of our father. The trial court’s summary of the evidence for the prosecution. the trial court held her in direct contempt of court. Pasig.[9] who cross-examined by Atty. the accused was charged by his two daughters. the prosecution presented EDEN[11] and SPO1 Salvador Buenviaje. Fedelina Agbayani. . 19 years old. United Glorieta. 14 years old. is as follows: The evidence adduced on the record shows that sometime in September of 1993 in Malolos. Regional Trial Court. reasoning that her “intentional falsehood” was “offensive to its dignity and a blatant disrespect to the Court. As EDEN declared in open court what she said in her previous testimony and sworn statement were not true.[13] On this part. Bulacan. hence we decided to formally forego this case and withdraw the same. Eduardo Agbayani pending before this Honorable Court docketed as Criminal Case No.” Accordingly. and presently residing at No. and actually degrading [to] the administration of justice. That this resulted to family misunderstanding. [with] the crime of rape which case was raffled to the sala of Judge Danilo Manalastas fo Branch 7. Phase 1. however. Said affidavit reads as follows: We. 1994. Eden was examined by Medico-Legal Officer and Chief of the PNP Crime Laboratory. Diana. Medico-Legal Officer. Pangasinan. or on July 20. She was told not to worry as they would go to Bulacan to report the incident to Fiscal Caraeg of Bulacan. she left their rented apartment and did not return anymore. he began living with four (4) of his six (6) daughters. visiting his eldest daughter. Bgy. The accused then proceeded to undress her. Quezon City. “Tay bakit niyo po ginagawa sa akin ito. and Edina. Fedelina and Eden to reach the said fiscal but it was only on September 9. who had. who. Several attempts were made by her sisters. The next morning. in part consisting of the testimonies of Complainant Eden Agbayani. Florante Baltazar and SPO1 Salvador Buenviaje.. After the accused’s arrest. 1994. Obrero. Fiscal Caraeg of Bulacan reported the complaint to Judge Danilo Manalastas who reopened the previous provisionally dismissed case and issued a warrant of arrest against the herein accused. the complainant informed her elder sister. returning home only on 21 July 1994. he could not have raped his daughter EDEN. prepared the corresponding Medico-Legal Report. because on 19 July 1994. handled the rape case filed by Fedelina and Dodima. 1994. According to him. Obrero. the complainant. The complainant thereafter felt blood dripping from her vagina and felt pain. 1994. the year before. Florante Baltazar. Frightened. Quezon City and was later brought to Malolos.[17] Appellant put up the defense of denial and alibi. she asked. She declared that on 17 July 1994. Then on 24 July 1994. appellant requested her to take care of his children because he was going to Pangasinan to visit his sick father. Three (3) days thereafter. on the evening of July 19. gayong kalalabas mo lang sa kulungan?” and threatened to kill her [sic]. She turned to discover that it was her father who was then molesting her. provisionally dismissed by said Judge after the complainants desisted from pursuing the same in May 1994. Fedelina. was sleeping on the floor of the room with her father.[18] He declared that EDEN charged him with rape because he had hit her with a belt after he caught her lying about her whereabouts on night. shows that the above mentioned address. he was in Barangay Victoria in Sual. accordingly. The next day.[19] Adoracion Cruz corroborated appellant’s alibi. Bulacan where he is currently detained. Eden Agbayani. 1994. With the assistance of police officers from Station 10 of the SIID in Quezon City. Dr. the accused Eduardo Agbayani was awakened from her sleep by hands caressing her breast and vagina. a colonel. Bgy. that they were able to meet with him. Eden.however. Fedelina. in a rented room at 30-A Makabayan St. Dr. Eden and Fedelina returned to Station 10 where they made individual statements before SPO1 Salvador Buenviaje narrating the events leading to and occurring after the incident of July 19.. The evidence of the prosecution. of what had been done to her by her father.[20] . Eduardo Agbayani was thus consequently released from jail on July 13. Thereafter he undressed himself and succeeded in having carnal knowledge with the complainant who could only cry helplessly. the accused was arrested on the same day at his residence at 30-A Makabayan St. not to mention the pressure and lack of moral support of her family. during her entire testimonies on January 20 and May 4. guardian. applying Section 11 of R. and characterized the testimony of Adoracion Cruz unworthy of belief. Accordingly. viz for a child like EDEN.A. 1995. who “appeared. considering all the foregoing. destroy the household peace and subject her father. 1995. candid and responsive. and hereby inflict emotional stress and financial strain upon the members of her family. No.” for: The complainant is an innocent girl of tender years who is likely to possess such vindictiveness and death of conscience as to concoct such a malicious and damaging story. judgment is hereby rendered finding the accused. The complainant appeared. rendered judgement against appellant. or common law spouse of the parent of the victim. Turning to the defense of appellant. stepparent. to a grave punishment which by dent of express of law. to wit: WHEREFORE. to uphold the defense’s proposition would be stretching the imagination too far. if not to the extreme. ascendant. during her entire testimonies on January 20 and May 4.The trial court gave full credence to the testimony of EDEN. Her retraction on March 16 was sufficiently explained to this Court the seriousness of the injury upon he person and dignity inflicted upon by the accused…. the trial court declared that it understood EDEN’s moral predicament. This . it is highly unlikely that the complainant would concoct a charge which would damage her and wreck havoc on her family’s reputation. The trial court finally found that appellant employed on EDEN force or intimidation by virtue of his moral ascendancy over her and his threat that he would kill her if she reported the incident to anyone. can obliterate him from the face of this earth. his minor daughter. Eden Agbayani. brought on by the filing of this case. the trial court. the trial court found his alibi wholly selfserving. As to appellant’s claim that EDEN filed the complaint because of a grudge against him. EDUARDO AGBAYANI.” It also ruled that EDEN did not voluntarily execute the affidavit of desistance. Even assuming argumenti gratia that the complainant would indeed lodge a complaint against her father solely on account of an altercation with him.” Besides. relative by consanguinity or affinity within the third civil degree. coherent. the trial court found this “incredible. even assuming arguendo that no such pressure was exerted by her mother and sister. Indeed. it commended her “for her courage and her unwavering strength in the midst of the emotional and psychological strain and humiliation. the accused.” futher. particularly her mother. 7659 which imposes the penalty of death when the victim is under eighteen years of age and the offender is a parent. coherent. GUILTY beyond reasonable doubt of the crime of RAPE committed against complainant. as it was procured “at the behest of her mother and sister for whom the sanctity of the family and the family’s good name were more important than demanding punishment for whatever injury the complainant might have suffered in the hands of the accused. candid and responsive. it was difficult to charge her own father with rape. insist on his punishment. The trial court likewise gave full faith to the sworn statement (Exhibit “E”) of Fedelina Agbayani.if not totally absurd. since its is unclear and not free from serious contradictions.A. in the event of insolvency and to pay the costs. In his second assigned error. have discovered and produced at the trial and which if introduced and admitted at trial would probably change the judgment of the court. of said barangay. Further.. 7659. hereby imposes upon him the supreme penalty law R. (c) present private complainant’s mother and sister Fedelina on sur-rebuttal to testify as to the circumstances which brought about the execution of the affidavit of desistance. Eden Agbayani. (1) the lower court failed to apprise him of his right to have counsel of his own choice. neither was there new and material evidence to be presented that appellant could not.Court as a consequence thereof. In its Order[23] of 31 July 1995. the trial court denied the motion for new trial being devoid of merit and for not being within the purview of Sections 1 and 2. He further alleged that his counsel de oficiowas never prepared during all the scheduled hearings. filed a Motion for New Trial[21] on the ground that serious irregularities prejudicial to his substantial rights were committed during the trial. the failure of the counselde oficio to: (a) present at trial the Barangay Captain of Barangay Obrero. Makabayan St. In their Comments/Opposition to the Motion for New Trial. which was the address given by EDEN.00 as damages. Considering their proximity to EDEN. even waived the presence of appellant after the third witness for the prosecution was presented. who would have testified. On 26 May 1995. and (d) cross examine complainant and the police investigator exhaustively. In support of the first assigned error. with all the necessary penalties provided for by law without subsidiary imprisonment. viz. on basis of his certification attached to the motion. in his barangay. through his new counsel de parte Attorneys Froilan V. and (2) the lower court did not give him the opportunity to prepare for trial. that there was a house bearing No.. but that there was no such place as 30-A Makabayan St. Let the entire records of this case be forwarded to the Supreme Court on automatic review. 30. with reasonable diligence. despite the mandated period of two days prescribed in Section 9 of Rule 116 of the Rules of Court. [22] the public and private prosecutors alleged that there were no such irregularities. Accused is hereby ordered to pay the complainant. and (b) holding that the prosecution proved beyond reasonable doubt that he committed the crime charged. Rule 121 of the Rules of Court. worse. and adds two others namely. appellant reiterates the grounds in his motion for new trial.000. SO ORDERED. it was impossible for her sisters or any one of them not to have been awakened when EDEN was allegedly . Siobal and Domingo Floresta. however. the sum of P75. He also averred that the trial court used its inherent power of contempt to intimidate private complainant. appellant contends that the trial court erred in: (a) denying his motion for new trial. appellant. appellant contends that EDEN’s testimony is not sufficient to convict. In his Appellant’s Brief filed before this Court. Quezon City. (b) consider the futility of Adoracion Cruz’s testimony. being abused by him. the OSG stresses that the record shows that said counsel tried his best. moreover. appellant asserts that EDEN’s testimony is unreliable because her affidavit of desistance must have necessarily been contradictory thereto. the former’s moral ascendancy and influence over the latter substitutes for violence or intimidation. the waiver of appellant’s presence during the hearing of 18 March 1995 did not prejudice him. On the contrary.[25]There was. the OSG maintains that court look with disfavor on retraction of testimonies previously given in court. in which case the court would have no other alternative but to grant him the period. EDEN simply kept quiet and allowed him to abuse her.[26] Hence the OSG invokes the principle that in a rape committed by a father against his own daughter. nothing unusual in EDEN’s silence. The latter’s request for a continuance because he had not yet conferred with appellant was not evidence of counsel’s lack of sincerity. as here.[27] As regards EDEN’s affidavit of desistance. and Fedelina to corroborate the statements of EDEN – which testimonies were in appellant’s favor.” EDEN’s positive identification of appellant as the author of the crime rendered appellant’s defense of alibi unavailing. because on that date. the 2-day period to prepare for trial provided in Section 9 of Rule 116 is merely directory and does not prohibit the court from proceeding with trial after arraignment. Thus in view of EDEN’s candid and categorical manner of testifying the OSG concluded that she was a credible witness. the OSG maintains that such was not at all improbable.[24] As to the commission of rape in a small room and in presence of other persons. as well. demolished whatsoever faith left on her charge against the accused. Moreover. the OSG points out that throughout all the hearings. it showed counsel’s awareness of his duty to confer with appellant to ferret out the relevant facts as regards the second witness for the prosecution. It would have been entirely different if the defense did not agree. Finally. As to the manner appellant’s counsel de oficio cross-examined the prosecution witnesses. Her “subsequent turn-around … that she was pressured and influenced to execute and sign the affidavit of desistance further confirmed her being untruthful and. neither did she shout for help or put up a fight that would have awakened her sisters. especially if the defense. Strangely. his daughter. she demonstrated clearly and vividly what transpired that fateful evening of 19 July 1994. the trial court informed him that it would appoint de oficio counsel for him if he so desired. to which appellant agreed. consented thereto. appellant never questioned the way his defense was being handled by his counsel de oficio. the defense presented EDEN to testify as to her affidavit of desistance. as she could only attempt to shout because appellant had succeeded in covering her mouth with his hands and exercised a high level of moral ascendancy over EDEN.” The Office of the Solicitor General (OSG) considers the first assigned error as devoid of merit. Likewise. When appellant appeared without counsel at the arraignment. for such can . in effect. The OSG then characterizes the second assigned error as “barren of merit. EDEN and her sisters allowed him to live and sleep with them again in their rented room even after the alleged rape. As to appellant’s other grievances. Notably. et al. when the accused is denied the right recognized by said rule. 1986. he was fully informed before giving his plea of its consequences. (R. this does not mean that the trial court failed to inform appellant of such right. 23 SCRA 259). The precise time the two counsel de oficio were appointed is not disclosed in the record either. 426 and People vs. At the recorded portion of the arraignment aspect of the proceedings on 22 December 1994.easily be secured from poor and ignorant witnesses usually for monetary consideration. Cachero. In People vs. ATTY. They do not categorically disclose that the trial informed appellant of his right to counsel of his own choice. 1966. Domenden. cited in RJ Francisco’s Criminal Procedure. FISCAL ROSARIO BARIAS: For the prosecution. 323 it was held.” The first assigned error does not persuade this Court. Mijares. 73 Phil. appellant countered that his consent to the appointment of counsel de oficio his arraignment did not relieve the court of its duty under Section 6 of Rule 116 of the Rules of Court to inform him of his right to counsel and that it would be grievous error to deny an accused such right. MARIETA AGUJA: . p. It would be a grievous error to proceed by sentencing the accused without due process of law and this is not complete. the appellant contends that said right: [H]as been held to be mandatory and denial of this right is reversible error and a ground for new trial. 404. (Interpreter calls the case). that: “The courts should comply with Rule 116. Third Ed. citing people vs. 47 OG 4606. Morave.J.. Your Honor. It is true that the transcript of the stenographic notes of the proceedings of 22 December 1994 and the order issued by the trial court after the conclusion of said proceedings only state that the court appointed de oficiocounsel with the consent of the said accused. 73 Phil. In his Reply Brief. Omission by courts whether voluntary should not truly be censured but also condemned.. Sec.[28] as well as the probability that it may later be repudiated. The records must show compliance therewith or that the accused renounced his right to be assisted by counsel.. This must be so “xxx to prevent that any accused be caught unaware and deprived of the means of properly facing the charges presented against him.” Discussing further the right to the 2-day period to prepare for trial. 349. Appellant then elaborated on this point as follows: This is not without judicial precedent. thus: COURT: Call the case. the two formally entered their appearance. Dumasig v. Francisco’s Criminal Procedure. However. p. This is demanded by the interest of justice and remove all doubt that if the accused had waived said right. 3. Third Ed. [33] It is settled that the failure of the record to disclose affirmatively that the trial judge advised the accused of his right to counsel is not sufficient ground to reverse conviction. the mere omission from the record brought here upon appeal of an entry affirmatively disclosing that he did so. Labial. the trial court is presumed to have complied with its four-fold duties under Section 6[32] of Rule 116 of the Rules of Court. (1) to inform the accused that he has the right to have his own counsel before being arraigned. ATTY. 440. we are ready to present our first witness.Respectfully appearing for the prosecution. The reason being that the trial court must be presumed to have complied with the procedure prescribed by law for the hearing and trial of cases. Miranda[36] this Court explicitly stated: . 58. the only question to be determined in this case is whether the failure of the record to disclose affirmatively that the trial judge advised the accused of their right to have counsel is sufficient ground to reverse the judgment of conviction and to send the case back for a new trial. namely. BALDADO: For the accused Your Honor. DE LA CRUZ: For the accused.S.[34] In U. v. Thus it has been held that unless the contrary appears in the record. Upon this point we are all agreed that in the absence of an affirmative showing that the court below did in fact fail to advise the accused of their rights under the provisions of Section 17 of General Orders No. (2) after giving such information.[35] this Court held: Adhering to the doctrine laid down in that case.[31] In other words. is not reversible error. Your Honor. or that it is positively proved that the trial court failed to inform the accused of his right to counsel. the presumptions that the law has been obeyed and official duty has been regularly performed by the trial court stand. as amended by section 1 of Act No. the court must assign counsel de oficio to defend him. The trial court’s order[30] of 22 December 1994 states that said de oficiocounsel were duly appointed by the Court with the consent of the accused. and that such a presumption can only be overcome by an affirmative showing to the contrary. Your Honor appointed by the court as counsel de oficio.[29] This obviously means that the appointment had taken place earlier. ATTY.” Since appellant has miserably failed to show that he was not informed of his right to counsel. appointed as counsel de oficio. In the absence of an affirmative showing to the contrary. the court below must be presumed in matters of this kind to have complied with the provisions of law prescribing the procedure to be followed in the trial had before him. and (4) if he so desires to have counsel but is unable to employ one. While in People v. the court must grant him reasonable time to do so. (3) if he so desires to procure the services of counsel. to ask accused whether he desires the aid of counsel. it will be presumed that the accused was informed by the court of such right. Your Honor under the control and direct supervision of the Trial Prosecutor. -. said counsel calls attention to the fact that the record is silent as to whether or not. This precise issue was determined in United States v. we should destroy public justice. expressly or impliedly.[42] Further.88). Labial. and not as de oficio.[43] In the instant case. We see no reason to modify it now. Time to prepare for trial. to ask him if he desires to have one. appellant was represented by Atty.[37] Besides.After a plea of not guilty. Much must be left to intendment and presumption. the trial court informed him of his right to be assisted by an attorney. coupled with said counsel’s extensive cross-examination of Dr. Cachero[40] cited by appellant are inapplicable. we take this opportunity to admonish trial courts to ensure that their compliance with their pre-arraignment duties to inform the accused of his right to counsel. he effectively waived such right. During the succeeding hearings. Temanil’s . one of whom extensively cross-examined the first witness for the prosecution. appellant did not ask for time to prepare for trial. hence. Labial (27 Phil. 722) and in United States vs. it will be presumed that the defendant was informed by the court of his right to counsel. Florante Baltazar. Section 9 of Rule 116 of the Rules of Court reads: Sec. a de oficio counsel will be appointed for him. the trial court appointed two de oficio counsel who assisted the appellant at his arraignment. must appear on record. may even be considered a waiver of his right to question the alleged failure of the trial court to inform of his right to counsel. such right may be waived. In the instant case. 87. In both casis the trial courts there clearly failed to inform the accused of their right to counsel nor appoint de oficio counsel during the arraignment. who entered his appearance as de parte.) The same doctrine was reiterated in People vs. Abuyen (52 Phil. 19). and to inform him that. Turning to the alleged violation of appellant’s right to the 2-day period to prepare for trial. “*** If we should insist on finding every fact fully recorded before a citizen can be punished for an offense against the laws. It is to be presumed that Atty.[41] Only when so demanded does denial thereof constitute reversible error and a ground for new trial. Domenden[39] and People v. for it is often less difficult to do things correctly than to describe them correctly. Custan (28 Phil.[38] The cases of People v. Temanil of the Public Attorney’s Office in Quezon City. counsel.However. At no time did he previously raise it in the trial court despite ample opportunity to do so.supra.” (United States vs. and give unbridled license to crime. 9. unless he is allowed to defend himself in person or he has counsel of his choice. His consent to be assisted by counsel de oficio. Dr. the accused is entitled to two (2) days to prepare for trial unless the court for good cause grants him further time.. at the time appellant was arraigned. under section 3 of Rule 112 of the Rules of Court. Baltazar. in the sense that unless the contrary appears in the records. It must be pointed out that the right must be expressly demanded. it is only in this appeal that appellant raised the issue of the failure of the trial court to inform him of the right to counsel. Nevertheless. . it is almost 1:00 o’clock in the afternoon and we are both hungry now. Temanil sufficiently cross-examined EDEN. Temanil made that statement after he cross-examined EDEN and after the judge realized that it was almost 1:00 o’clock in the afternoon and both of them were already hungry. Besides. Finally. a meticulous examination of the transcripts of the stenographic notes convinces this Court that Atty. Your Honor that from the start of the trial the witness appears to be fluent and suffers no difficulty in answering the questions. Your Honor. If he decided to terminate his cross-examination. COURT: Put that on record. even the questions propounded by the Private Prosecutor. but merely a room. Atty. suffice it to state that there was nothing to show that they were in fact willing to refute EDEN’s claim. the testimony of the barangay captain could not alter the fact that rape was committed in a rented room in a house along Makabayan Street in his barangay. thus: ATTY. The latter’s contention that his counsel was not ready at all times because at the hearing on 20 January 1995 he asked for a continuation as he has “not yet interviewed [his] client.[46] Neither is there merit in appellant’s claim that his counsel committed irregularities: (1) in not considering the futility of the testimony of Adoracion Cruz. he and his children were not renting the entire house. (2) in not presenting the barangay captain in the evidence in chief for the defense. TEMANIL: I just want to make it on record. Temanil. Temanil lacked the competence and skill to defend appellant. ATTY. Adoracion Cruz was presented to corroborate appellant’s alibi that he was in the province and not in their rented room from 17 to 21 July 1994. TEMANIL: I will just asked [sic] for continuance considering that I have not yet interviewed my client. and (3) in not crossexamining exhaustively EDEN. As to the presentation of EDEN’s mother and sister Fedelina as sur-rebuttal witnesses to disprove the claim of EDEN that they coerced her into signing the affidavit of desistance. contrary to appellant’s allegation. Atty. On the other hand. and EDEN’s mother and sister Fedelina in sur-rebuttal. formerly the Citizen’s Legal Assistance Office (CLAO). Appellant neither testified that he did not occupy a house numbered 30A nor denied that he was living with EDEN and her sisters in that room.services were obtained pursuant to the law creating the Public Attorney’s Office (PAO). which could probably be the unit numbered “30-A” referred to by EDEN.”[45] is misleading.[44] There is at all no showing that Atty. That is true. Your Honor. in their rented room in Barangay Obrero. would affect the result. the blush of conscious shame. the yawn. such a revelation divided her family and brought it shame and humiliation. Her story was made even more credible by the simplicity and candidness of her answers. the trial judge is in a better position to decide the question of credibility. as even a compassionate man may be reluctant to marry her because her traumatic experience may be psychological and emotional impediment to a blissful union. She must have been torn between the desire to seek justice and the fear that a revelation of her ordeal might mean the imposition of capital punishment on her father. the scant or full realization of the solemnity of an oath. i.it could have been due to the futility of any further cross-examination which might only prove favorable to the prosecution. unless there appears in the records some facts or circumstances of weight and influence which have been overlooked and. since he personally heard the witnesses and observed their deportment and manner of testifying. The beast in him bears no respect for time and place. To him appears the furtive glance. What appellant claims to be improbabilities in the testimony of EDEN are more apparent than real. on 19 July 1994. in view of the gravity of the offense charged and the extreme penalty of death imposed. This is founded on practical and empirical considerations. as well as by the fact that it came from an innocent girl writhing in emotional and moral shock and anguish. the sincere or flippant or sneering tone. this Court took painstaking effort and meticulous care in reviewing the transcripts of the stenographic notes of the testimonies of the witnesses. Quezon City. It was then improbable that EDEN fabricated a story of defloration and falsely charged her own father with a heinous crime. the carriage and mien. it drives him to commit rape . which others may have simply kept to themselves for the rest of their lives. The presence of her sisters in the small room did not at all make impossible the commission of rape. she did so inspired by no other motive than to obtain justice and release from the psychological and emotional burdens the painful experience had foisted upon her. the sigh. [48] On the other hand. If EDEN did testify regardless of these consequences and even allowed the examination of her private parts. She thereby jeopardized her chances of marriage. The second assigned error is equally unpersuasive.[47] He had before him the essential aids to determine whether a witness was telling the truth or lying.[49] At any rate. One of the highly revered dicta Philippine jurisprudence has established is that this Court will not interfere with the judgment of the trial court in passing upon the credibility of opposing witnesses. an appellate court has only the cold record. as it might have opened another window of opportunity for EDEN to strengthen her testimony. Moreover..e. The evil in man has no conscience. the heat. she made public a painful and humiliating secret. the hesitation. she often hides in nooks and crannies visible only to the mind’s eye of the judge who tried the case. It raises the issue of the credibility of EDEN as a witness. Truth does not always stalk boldly forth naked. the calmness. This Court is fully satisfied that EDEN told the truth that she was raped by her father. the candor or lack of it. By testifying in court. herein appellant. if considered. which generally does not reveal the thin line between fact and prevarication that is crucial in determining innocence or guilt. EDEN could not be expected to act with the equanimity of disposition and with nerves of steel. That threat alone coming from her father. It is enough that the intimidation produced fear – fear that if the victim did not yield to the bestial demands of the accused. who was both a father and mother to her since her mother was in Saudi Arabia and who provided her with the daily wherewithal to keep her alive. or to act like a mature and experienced woman who would know what to do under the circumstances. while others may openly welcome the intrusion.[51] rape was committed in a room occupied also by other persons. or to have courage and intelligence to disregard the threat. in a rape committed by a father against his own daughter. it must not be forgotten that at her tender age of 14 years. and inside a house where there are other occupants.anywhere – even in places where people congregate such as in parks. Moreover.[50] In People v. Some may shout. Intimidation in rape cases is not calibrated nor governed by hard and fast rules.[55] Neither does the fact that EDEN continued to live with appellant in the same rented room disprove the rape. Whether he was armed was of no moment. then offering none at all does not mean consent to the assault so as to make the victim’s submission to the sexual act voluntary. Where such intimidation existed and the victim was cowed into submission as a result thereof. yet the thought must have been irresistible and compelling that her assailant was her own father. some may faint. If resistance would nevertheless be futile because of intimidation. a person who wielded such moral ascendancy. thereby rendering resistance futile. something far worse would happen to her at that moment.[52] In any event.[53] Likewise. Nor is there merit in the insistent claim that EDEN’s affidavit of desistance “must have necessarily contradicted her previous testimony. affidavits. Instances are not few when daughters raped by their fathers stayed with the latter and kept in the deepest recesses of their hearts the evil deed even if the memory thereof haunted them forever. are generally considered inferior to the testimony given in open court. That EDEN was unable to resist or shout for help can easily be explained by the fact that appellant threatened to kill her. as in this case.” We have earlier quoted if full this affidavit of desistance. Plainly. Besides. the former’s moral ascendancy or influence over the latter substitutes for violence or intimidation. In the instant case. being taken ex parte. nowhere therein did she retract her previous testimony or claim that she was raped by her father. a less harsh life outside was uncertain. it would be the height of unreasonableness to expect the victim to resist with all her might and strength. EDEN’s other companions in the room when she was molested by appellant were young girls who were all asleep. along the roadside within school premises. Since it is addressed to the victim’s and is therefore subjective. this Court recognized their different and unpredictable reactions.[56] and . it must be viewed in light of the victim’s perception and judgment at the time of the commission of the crime. In any case. and some may be shocked into insensibility. psychologically and emotionally. Opena. was enough to render her incapable of resisting or asking for help. While she was hurt physically. EDEN withdrew her affidavit of desistance and solemnly declared that she was pressured by her mother and sister to sign it.[54] Even in cases of rape of mature women. 7659. The penalty therefor is death under the first circumstance mentioned in Article 335(7) of the Revised Penal Code. 7659. But the fundamental law of the land allows Congress. subject to the above modification as to the amount of indemnity. Branch 106.[58] hence the passage of R. To the appellant who inflicted his animal greed on his daughter in a disgusting coercion of incestuous lust. which provides. [57] This Court has no doubt that appellant is guilty as charged. for compelling reasons. The law may be exceedingly hard but so the law is written and the Court is duty-bound to apply it in this case. as amended by R. be forwarded without delay to the Office of the President for possible exercise of executive clemency pursuant to Article 83 of the Revised Penal Code. No.A.When the victim is under eighteen (18) years of age and the offender is a parent. in part. No. All that we concede to him is a modification of the award of “P75. relative by consanguinity or affinity within the third civil degree.” which is hereby reduced to P50.A. 7659.000. Q-94-59149 finding accused-appellant EDUARDO AGBAYANI y MENDOZA guilty beyond reasonable doubt as principal of the crime of rape defined and penalized under under Article 335 of the Revised Penal Code.000. since they can easily be secured from poor and ignorant witnesses. and imposing upon him the penalty of DEATH.affidavits or recantation have been invariably regarded as exceedingly unreliable. With costs de oficio. as amended by Section 25 of R. as well as the records of this case. as follows: The death penalty shall also be imposed if the crime of rape is committed with any of the following attendant circumstances: 1. This law may be difficult to accept for those who believe that the verdict of death for a sin or crime is God’s exclusive prerogative. thereby forsaking that which is highest and noblest in his human nature and reducing himself to lower than the lowliest animal. for he deserves no place in society. the full force of the law must be weighed against him. or the common-law spouse of the parent of the victim. . Two justices voted to impose upon the accused-appellant the penalty of reclusion perpetua. ascendant.A. Hoc quidem per quam durum est sed ita lex scripta est. and place the proceedings at the mercy of unscrupulous witnesses. No. Such a rule would make a solemn trial a mockery. WHEREFORE. judgment is hereby rendered AFFIRMING the decision of the Regional Trial Court of Quezon City. Upon the finality of this Decision. in Criminal Case No.00 as damages. 7659. let certified true copies thereof. step-parent. No.00 in accordance with current case law. as amended by R. guardian.A. It would be a dangerous rule to reject the testimony taken before a court of justice simply because the witness who gave it later on changed his mind for one reason or another. to impose capital punishment in cases of heinous crimes. the incumbent Mayor of San Ildefonso. and docketed as Criminal Cases Nos. G. petitioners. vs. DE LEON. Reyes filed a Motion to Defer Arraignment and Subsequent Proceedings to enable him "to review the evidence on record and determine once more the proper crimes chargeable against the accused. Provincial Prosecutor. 4 On November 12. 1993. and one Godofredo Diego were charged in three separate informations with homicide and two counts of frustrated homicide fot has been the rule that under the first paragraph of Section 14. respondent Prosecutor Dennis M. 1993. Camp Crame.: Submitted for resolution in the present special civil action are: (1) the basic petition for certiorari and mandamuswith a petition for habeas corpus.R. 33261. Cubao.SO ORDERED. No.R. 1 (2) the Urgent Motion 2 and Supplemental Urgent Motion 3 for Immediate Action on Petition for Habeas corpus. 369 of the Department of Justice. dated February 18. Quezon City. SP No. 7 Thereafter. Bulacan Provincial Prosecutor Liberato L. RICARDO F. respondents. REGALADO. Salva & Associates. Bulacan. Rule 110. Salazar. the amendment of the information may also be made even if it may result in altering the nature of the charge so long as it Regional Trial Court of Malolos. 1994. the proceedings were again ordered suspended by Judge Villajuan until after the prosecution's request for change of venue shall have been . Rizal. Villa-Ignacio for Contempt and to Annul Proceedings (with Immediate Prayer for another Cease and Desist Order). 1993 9 filed by respondent prosecutor. 1993. Bulacan. VILLA-IGNACIO of Pasig. and Lazaro Law Firm for petitioners. Emerito M. 5 Both accused posted their respective cash bail bonds and were subsequently released from detention. COURT OF APPEALS (17TH DIVISION). Camp Commander and Head of the PNP Custodial Group. Villa-Ignacio was designated Acting Provincial Prosecutor of Bulacan and was instructed to conduct a re-investigation of the aforesaid criminal cases filed against herein petitioners. petitioners Honorato Galvez. First Asst. Juanito L. Andrade. THE PEOPLE OF THE PHILIPPINES. to review the resolution issued by respondent Court of Appeals. 8 By virtue of a Manifestation with Ex-parte Motion dated November 23. and (3) the Urgent Petition to Declare Judge Jaime N. Branch 14." 6 which was granted by Judge Villajuan in an order dated November 16. 114046 October 24. and PNP P/SR. 1994 HONORATO GALVEZ and GODOFREDO DIEGO. in CA-G. J. On November 15. 3642-M-93 to 3644-M-93. Jr. DENNIS M. SUPT. pursuant to Department Order No. and First Assistant Provincial Prosecutor Dennis M. respondent court dismissed the petition in its questioned resolution of February 18. the arraignment was suspended and. an order was issued on January 20. 1994. 3642-M-93 to 3644-M-93. private complainants. at the same time. 12 This motion was granted by Judge Villajuan also on December 15. 19 In the meantime. 1993. the scheduled arraignment before Judge Pornillos were reset due to the absence of respondent prosecutor. and prior to the arraignment of herein petitioners before Judge Pornillos. said presiding judge issued an order setting the arraignment of the accused for December 27. Prosecutor Villa-Ignacio filed four new informations against herein petitioners for murder. a Motion to Quash the new informations for lack of jurisdiction was filed by petitioners before Judge Pornillos on January 3. hence this petition. No bail having been recommended for the crime of murder. I. Bello III. and setting the arraignment of the accused therein for February 8. and violation of Presidential Decree No. Regional Trial Court of Malolos. 1994. Atty. 17 Thereafter. and to prevent a miscarriage of justice. As earlier stated. 1993.resolved by the Supreme Court. Silvestre R. Judge Pornillos ordered the arrest of herein petitioners. 1993 and the cases were considered withdrawn from the docket of the court. 3642-M-93 to 3644-M-93. 1994. 11 On December 15.15 On December 23. 1994 issued by Judge Pornillos which denied petitioners' motion to quash filed in Criminal Cases Nos. prohibition and mandamus with respondent Court of Appeals. however. through their counsel. before petitioners could be arraigned in Criminal Cases Nos. 1866 for illegal possession of firearms 14 which were subsequently raffled to the sala of Judge Victoria Pornillos of Branch 10. 1993 which granted the motion to withdraw the original informations. two counts of frustrated murder. assailing the order dated January 24. 1993. 1994 by Judge Villajuan granting the motion for reconsideration filed by petitioners. 18 At the court session set for the arraignment of petitioners on January 24. (a) the first . 20 On said date. had filed with the Supreme Court a Petition for Change of Venue of Criminal Cases Nos. 13 On the same day. 3642-M-93 to 3644-M-93. 1993. petitioners filed before Judge Villajuan a Motion for Reconsideration of his order of December 15. On the Main Petition The main issue in this case involves a determination of the set of informations under which herein petitioners should be tried. 4004-M-93 and 4007-M-93. respondent prosecutor filed an Ex parte Motion to Withdraw Informations in said cases. purportedly to safeguard the lives of the victims and their witnesses. 16 On December 27. 10 It appears that on December 2. 1993. 4004-M-93 to 4007-M-93. ordering the reinstatement of Criminal Cases Nos. On even date. and the preliminary investigation being conducted by the former shall have been terminated. Bulacan and were docketed therein as Criminal Cases Nos. 1994. petitioners filed a petition for certiorari. that is. Judge Pornillos issued an order denying the motion to quash and. directed that a plea of not guilty be entered for petitioners when the latter refused to enter their plea. in the meanwhile. Whether the ex parte motion to withdraw the original informations is null and void on the ground that (a) there was no notice and hearing as required by Sections 4. and illegal possession of firearms in Criminal Cases Nos. Hence. 1994 in Criminal Cases Nos. the order granting the same is null and void. Rule 15 of the Rules of Court. so they contend. Several corollary but equally important issues have likewise been addressed to us for resolution. 5 and 6. We shall discuss these issues seriatim. 3. Whether the arraignment proceeding held on January 24. They postulate that the principle of nolle prosequi does not apply in this case since the withdrawal or dismissal of an information is addressed solely to the sound and judicious discretion of the court which has the option to grant or deny it and the prosecution cannot impose its opinion on the court. and 4. and (b) the appropriate remedy which should have been adopted by the prosecution was to amend the informations by charging the proper offenses pursuant to Section 14 of Rule 110. Rule 15 of the Rules of Court. 2. 3642-M-93 to 3644-M-93. that is. Whether Judge Pornillos was correct in denying the motion to quash and thereby acquired jurisdiction over the new informations considering that (a) the designated public prosecutor allegedly had no authority to file the second set of informations. from homicide to murder. the ex parte motion should be considered as a worthless scrap of paper and Judge Villajuan had no authority to act on it. 1. or (b) the subsequent informations for murder. and (b) the filing thereof constituted forum shopping. by adding the qualifying circumstance of treachery. . to wit: 1. It is further stressed that in case there is a need to change the nature of the offense charged. 4004-M93 to 4007-M-93. the only legal and proper remedy is through the filing of the corresponding amended information. as well as a violation of Sections 4. 5 and 6. and that the withdrawal of an information is allowed only where the new information involves a different offense which does not include or is not included in the offense originally charged. It is petitioners' submission that the prosecution's failure to serve them a copy of the motion to withdraw the original informations and to set said motion for hearing constitutes a violation of their right to be informed of the proceedings against them. frustrated murder. Petitioners advance the theory that respondent prosecutor should have amended the original informations instead of withdrawing the same and filing new ones. Whether the order granting the withdrawal of the original informations was immediately final and executory. Ergo. 4004-M-93 to 4007-M-93 was valid.set of informations for homicide and frustrated homicide in Criminal Cases Nos. Contrarily. The rule is now well settled that once a complaint or information is filed in court any disposition of the case. three of which charge graver offenses and the fourth. the original informations were reinstated in Branch 14 of the trial court.Normally. he could object to such dismissal and insist that the case be heard and decided on the merits. In actuality. It cannot deprive a competent court of jurisdiction over the case. even assuming the alleged procedural infirmity in his issuance of the order of dismissal. bail becomes a matter of discretion under either an amended or a new information. an additional offense. It really made no difference considering that where a capital offense is charged and the evidence of guilt is strong. and the ex parte motion to withdraw was filed and granted before they could be arraigned. This is especially so in this case since. or proof of service thereof. It has been held that — The order of the court granting the motion to dismiss despite absence of a notice of hearing. 3642-M-93 to 3644-M-93 does not impress us as a candid presentation of their real position. 21 However. on his order. there would obviously have been no cause for the instant petition. 22 Besides. if the accused should deem such conditional or provisional dismissal to be unjust and prejudicial to him. Petitioners could not be better off with amended informations than with the subsequent ones. they still stood to likewise be deprived of their right to bail once it was shown that the evidence of guilt is strong. rests in the sound discretion of the court. considering that in the original cases before Branch 14 of the trial court petitioners had not yet been placed in jeopardy. an accused would not object to the dismissal of an information against him because it is to his best interest not to oppose the same. Accordingly. Contrary to petitioners' submission. Although the prosecutor retains the direction and control of the prosecution of criminal cases even when the . their complaint about the supposed procedural lapses involved in the motion to dismiss filed and granted in Criminal Cases Nos. there would be no imperative need for notice and hearing thereof. the real grievance of herein accused is not the dismissal of the original three informations but the filing of four new informations. when petitioners were given by Judge Villajuan the opportunity to file a motion for reconsideration. They would want to ignore the fact that had the original informations been amended so as to charge the capital offense of murder. is merely an irregularity in the proceedings. The court still retains its authority to pass on the merits of the motion. or to appeal from the dismissal and not certiorari. the absence of notice and hearing does not divest a trial court of authority to pass on the merits of the motion. whether as to its dismissal or the conviction or the acquittal of the accused. Petitioners' contention that the dismissal of the original informations and the consequent filing of the new ones substantially affected their right to bail is too strained and tenuous an argument. Had these new informations not been filed. the same was thereby deemed cured. The remedy of the aggrieved party in such cases is either to have the order set aside or the irregularity otherwise cured by the court which dismissed the complaint. 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 determination of the case is within its exclusive jurisdiction and competence. Thereafter. frustrated murder. In such an instance. 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. 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.. such proposed course of action may be taken but shall likewise be addressed to the sound discretion of the court. xxx xxx xxx The rule therefore in this jurisdiction is that once a complaint or information is filed in Court any disposition of the case as to its dismissal or the conviction or acquittal of the accused rests in the sound discretion of the Court. and illegal possession of firearms. 23 The only qualification is that the action of the court must not impair the substantial rights of the accused or the right of the People to due process of law. The court is the best and sole judge on what to do with the case before it. For while it is true that the prosecutor has the quasijudicial discretion to determine whether or not a criminal case should be filed in court.: 24 Whether the accused had been arraigned or not and whether it was due to a reinvestigation by the fiscal or a review by the Secretary of Justice whereby a motion to dismiss was submitted to the Court. This prompted him to file an ex parte motion to withdraw the original informations for homicide and frustrated homicide. Mogul. the permission or consent of the court must be secured.case is already in court. etc. if after such re-investigation the prosecution finds a cogent basis to withdraw the information or otherwise cause the dismissal of the case. Although the motion did not state the reasons for the . before a re-investigation of the case may be conducted by the public prosecutor. We reiterate once again the doctrine we enunciated and explained in Crespo vs. he cannot impose his opinion upon the tribunal. et al. the court granted the motion of respondent prosecutor for the suspension of the proceedings until the re-investigation thereof shall have been terminated. And. the prosecutor arrived at a finding that petitioners should have been charged with murder. 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. once the case had already been brought therein any disposition the prosecutor may deem proper thereafter should be addressed to the court for its consideration and approval. 25 It is not denied that in the present case. and the accused cannot be convicted of the offense charged. was required under the circumstances. Rule 119 is virtually a restatement of Section 14. permission by the court to dismiss the original informations. from a realistic point of view. insisting that an amendment. the accused shall not be discharged. the court in the exercise of its discretion granted the same. is more directly and principally directed to the trial court to invest it with the requisite authority to direct by itself the dismissal and refiling of the informations therein contemplated. In such case. Rule 110. it may be contended that these rules speak of a dismissal by the court when there is a mistake in charging the proper offense. or of any other offense necessarily included therein. Section 14 of Rule 110 and Section 11 of Rule 119. This provision. It is true that Section 11. that would be a rare situation. that a mistake has been made in charging the proper offense. namely. Petitioners now question the propriety of the procedure adopted by the prosecution. We do not discount the possibility of either the prosecution or the defense initiating such dismissal and substitution at that stage. (Emphasis supplied. hence the trial court is now in a better position to conclude that manifestly the accused cannot be convicted of the offense charged or of one that it necessarily includes. as a consequence of which a new set of informations was thereafter filed and raffled to another branch of the court. it is silent with respect to the right of the prosecutor to ask for a dismissal or withdrawal thereof. — When it becomes manifest at any time before judgment. 11. if there appears to be good cause to detain him. but make no mention of a dismissal made upon application of the prosecution.withdrawal of the informations. The issue is thus focused on whether or not under the given situation the court acted correctly in dismissing the original informations rather than ordering the amendment thereof. When mistake has been made in charging the proper offense. nevertheless. It must here be emphasized that respondent prosecutor sought. 26 A perusal of the 1985 Rules on Criminal Procedure will show that there are only two provisions concerning the dismissal of an information other than on motion of the accused.) Rule 119 is the rule specifically governing the trial stage where evidence is necessarily being presented. . providing as it does that: Sec. and was subsequently granted. not a new information. therefore. It cannot therefore be validly claimed that the prosecutor exceeded his authority in withdrawing those informations because the same bore the imprimatur of the court. the court shall commit the accused to answer for the proper offense and dismiss the original case upon the filing of the proper information. It would primarily be the function of the court to motu proprioorder the dismissal of the case and direct the filing of the appropriate information. That is not necessarily so. although. But then. It has been observed that while the Rules of Court gives the accused the right to move for the quashal of the information. sole authority and discretion to enter anolle prosequi provided he does not act arbitrarily 28 and subject to the discretion of the court. In several cases." The situation under said Section 14 contemplates a longer time span. just like Section 11 of Rule 119 the permissible stage for effecting that substitution is "at any time before judgment. at any time before the accused pleads. we have also impliedly recognized the propriety of such a procedure particularly in those instances where the prosecution is allowed to dismiss or withdraw an information on the ground of insufficiency of evidence. It is interesting to note that in the American jurisdiction. the guilt of the accused. Section 14 thereof.27 As a matter of fact. realistically it will be the prosecutor who can initially determine the same. therefore. as he was then called. Of course. and should now be resolved. that a mistake has been made in charging the proper offense. — The information or complaint may be amended. the prosecuting attorney is given the broad power. on the other hand. in substance or form. . It necessarily follows. We have even gone further by imposing upon the fiscal. provides in its second paragraph the procedure and requisites for the substitution of a defective information by the correct one. provides the procedural governance for the prosecution of offenses. although requiring in all cases the approval of the court in the exercise of its judicial discretion. at least prima facie. such right is specifically recognized under Rule 48 (a) of the Federal Rules of Criminal Procedure which provides that the entry of a nolle prosequi by the Government is a permissible right. . the duty to move for the dismissal of the information if he is convinced that the evidence is insufficient to establish. . is when the fiscal may be allowed to move to dismiss an information and when he should merely move to amend it. . otherwise he would be recreant to his duties. without leave of court. by leave and at the discretion of the court. . in order that new informations can be filed. inclusive of the period from the filing of the information up to and before trial. and thereafter and during the trial as to all matters of form. That is why such error need not be manifest or evident. The problem that may be posited. Although. reads as follows: Sec. If it appears at any time before judgment that a mistake has been made in charging the proper offense. what is involved is a dismissal effected at the instance of the prosecutor by reason of a mistake in charging the proper offense. when the same can be done without prejudice to the rights of the accused. that fact may be perceived by the trial judge himself but. Since no evidence has been presented at that stage. 14. that the prosecutor can and should institute remedial measures for the dismissal of the original information and the refiling of the correct one. quoted infra. Section 14 of Rule 110. Amendment. again. nor is it required that such nuances as offenses includible in the offense charged be taken into account. 29 In this case now before us.Rule 110. which is invoked by petitioners. the error would appear or be discoverable from a review of the records of the preliminary investigation. the court shall dismiss the original complaint or information upon the filing of a new one charging . ." unlike the latter situation it is sufficient that "it appears . the then provincial fiscal. to wit: This clearly appears from the second part of Section 13 of Rule 106 which says that. and may also require the witnesses to give bail for their appearance at the trial. the amendment of the information may also be made even if it may result in altering the nature of the charge so long as it can be done without prejudice to the rights of the accused. The first paragraph provides the rule for amendment of the information or complaint. Consequently. Be that as it may. instead of an amendment. it is quite plausible under Section 14 of Rule 110 that. an amended information for murder was filed against the accused who were ordered re-arrested without the amount of bail being fixed. Hence. Under the second paragraph. The claim that such amendment can only refer to matters of specification affecting the elements constituting the crime is not correct. The Court ruled therein that the amendment was proper. the court can order the filing of another information to charge the proper offense. taking advantage of superior strength. This may be deduced from the pronouncement of the Court in the aforecited case of Dimalibot. provided the accused would not be placed thereby in double jeopardy and that could only be true if the offense proved does not necessarily include or is not necessarily included in the offense charged in the original information. since it is undisputed that the herein accused were not yet arraigned before the competent court when the complaint for homicide was amended so as to charge the crime of murder. an information for homicide may also be dismissed before the accused pleads. Upon the authority of said rules. after a review of the affidavits of the witnesses for the prosecution. if it appears before judgment that a mistake has been made in charging the proper offense. the court may dismiss the . Salcedo. 30 the accused therein were originally charged with homicide and were released on bail. provided the accused would not be placed thereby in double jeopardy. pursuant to Section 13. while the second paragraph refers to the substitution of the information or complaint. and employing means to weaken the defense of the victim. Rule 110 of the 1985 Rules on Criminal Procedure). Section 11. Rule 106 of the 1940 Rules of Court (now Section 14. for there is nothing in the rule to show that the nature of the amendment should only be limited to matters of specification. Rule 110. to give way to the filing of a new information for murder. the amendment could therefore be made even as to substance in order that the proper charge may be made. It has been the rule that under the first paragraph of Section 14. The change may also be made even if it may result in altering the nature of the charge so long as it can be done without prejudice to the rights of the defendant. discovered that the killing complained of was perpetrated with the qualifying circumstances of treachery. However.the proper offense in accordance with Rule 119. the new charge being a capital offense. in the case of Dimalibot vs. thus: Here these rules properly apply. Amendment may involve either formal or substantial changes. In determining. . 2. the rule is that where the second information involves the same offense. whether there should be an amendment under the first paragraph of Section 14. Madayag. hence the accused cannot claim double jeopardy. in substitution of information. an amendment of the information is sufficient. the accused could invoke double jeopardy. Amendment before plea has been entered can be effected without leave of court. for if the original information would be withdrawn. while substitution necessarily involves a substantial change from the original charge. there is no need for another preliminary investigation and the retaking of the plea of the accused. . therefore. et al. Section 14 It may accordingly be posited that both amendment and substitution of the information may be made before or after the defendant pleads. and 4. Where the amendment is only as to form. a substitution is in order. but they differ in the following respects: 1. where the new information charges an offense which is distinct and different from that initially charged. otherwise. 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. . vs. of Rule 110 was clarified to mean as follows: 31 however. but substitution of information must be with leave of court as the original information has to be dismissed.original information and order the filing of a new one provided the defendant may not be placed in double jeopardy. In the subsequent case of Teehankee. Jr. or a substitution of information under the second paragraph thereof. 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. If a new information may be ordered at any time before judgment no reason is seen why the court may not order the amendment of the information if its purpose is to make it conformable to the true nature of the crime committed. Rule 110.. . hence substantial amendments to the information after the plea has been taken cannot be made over the objection of the accused. or an offense which necessarily includes or is necessarily included in the first information. another preliminary investigation is entailed and the accused has to plead anew to the new information. On the other hand. 3. In any event, we are inclined to uphold the propriety of the withdrawal of the original informations, there having been no grave abuse of discretion on the part of the court in granting the motion and, more importantly, in consideration of the fact that the motion to withdraw was filed and granted before herein petitioners were arraigned, hence before they were placed in jeopardy. Thus, even if a substitution was made at such stage, petitioners cannot validly claim double jeopardy, which is precisely the evil sought to be prevented under the rule on substitution, for the simple reason that no first jeopardy had as yet attached. Consequently, we hold that although the offenses charged under the three new informations necessarily include those charged under the original informations, the substitution of informations was not a fatal error. A contrary ruling, to paraphrase from our former pronouncements, would sacrifice substantial justice for formal nuances on the altar of procedural technicalities. Furthermore, petitioner's right to speedy trial was never violated since the new informations were filed immediately after the motion to withdraw the original informations was granted. 2. The controversy over the jurisdiction of Judge Pornillos to entertain and act upon the new informations for murder, frustrated murder and illegal possession of firearms, is grounded on three points of disagreement. Firstly, it is argued that the new informations were prematurely filed considering that the order granting the withdrawal of the original informations had not yet become final and executory and that, as a matter of fact, the same was subsequently reconsidered and the case reinstated by Judge Villajuan. Therefore, so petitioners postulate, Judge Pornillos could not acquire jurisdiction over the same offense involving the same incident and the same accused. Secondly, petitioners contend that the dismissal of the original informations and the filing of new ones which were raffled to another branch of the court constituted forum shopping, and was tainted with malice considering the indecent haste with which the motion to withdraw the informations was filed, the order granting the same was issued, and the new informations were filed, all of which took place on the same day. Pursuant to the doctrinal ruling that the court first acquiring jurisdiction excludes the other courts, it is theorized that the cognizance of the case taken by Judge Villajuan barred Judge Pornillos from assuming jurisdiction thereover. Finally, the designation of respondent Prosecutor Dennis Villa-Ignacio (who was then First Assistant Provincial Prosecutor of Pasig, Rizal) as Acting Provincial Prosecutor of Bulacan was arbitrary and without any justifiable reason. It follows, therefore, so petitioners vigorously argue, that in the absence of such authority, the informations should be considered null and void by reason of which Judge Pornillos did not acquire jurisdiction over the same. On the other hand, respondents question the propriety of petitioners' filing of a petition for certiorari prohibition and mandamus in the Court of Appeals against the order of the lower court denying petitioners' motion to quash, claiming that the proper remedy was to proceed to trial on the merits and thereafter raise on appeal, as special defenses, the grounds invoked in the motion to quash. It is a general rule that a nolle prosequi or dismissal entered before the accused is placed on trial and before he is called on to plead is not equivalent to an acquittal, 32 and does not bar a subsequent prosecution for the same offense. 33 It is not a final disposition of the case. 34 Rather, it partakes of the nature of a nonsuit or discontinuance in a civil suit and leaves the matter in the same condition in which it was before the commencement of the prosecution. 35 A dismissal is different from an acquittal. An order of dismissal which is actually an acquittal is immediately final and cannot be reconsidered. 36 Furthermore, an acquittal is always based on the merits, that is, the defendant is acquitted because the evidence does not show that defendant's guilt is beyond reasonable doubt; but a dismissal does not decide the case on the merits or that the defendant is not guilty. Dismissals terminate the proceedings, either because the court is not a court of competent jurisdiction, or the evidence does not show that the offense was committed within the territorial jurisdiction of the court, or the complaint or information is not valid or sufficient in form and substance. 37 For dismissal to be a bar under double jeopardy, it must have the effect of acquittal. All these go to show, therefore, that the dismissal of Criminal Cases Nos. 3642-M-93 to 3644-M-93 did not amount to an acquittal of herein petitioners. Consequently, the same did not immediately become final, hence petitioners could still file a motion for the reconsideration thereof. Moreover, such dismissal does not constitute a proper basis for a claim of double jeopardy. 38 Since jeopardy had not yet attached, herein petitioners were not prejudiced by the filing of the new informations even though the order of dismissal in the prior case had not yet become final. Neither did it affect the jurisdiction of the court in the subsequent case. In American legal practice, where a motion for an order of nolle prosequi is made, the only power to deny the motion would be based on failure of the district attorney to judiciously exercise his discretion. 39 In most cases, the motion will be readily granted and should not be refused unless the court has some knowledge that it is based on an improper reason or a corrupt motive. But such a motion to dismiss will not also be approved unless the court is satisfied that the administration of justice requires that the prosecution be ended, or if there appears to be a clear violation of the law. 40 Whatever may be the reason therefor, a denial of the motion to withdraw should not be construed as a denigration of the authority of the special prosecutor to control and direct the prosecution of the case, 41 since the disposition of the case already rests in the sound discretion of the court. This brings us to the question as to whether or not an order of dismissal may be subsequently set aside and the information reinstated. Again, in American jurisprudence, the authorities differ somewhat as to whether a nolle prosequi may be set aside and the cause reinstated. 42 Some cases hold that the nolle prosequi may be recalled and that the accused may be tried on the same information, 43 but before it can be retraced, set aside, cancelled, or struck off, the permission or assent of the court must be had and obtained, and such cancellation or retraction must be duly entered. According to other authorities, however, the entry of an unconditional nolle prosequi, not on the ground that the information is insufficient on its face, is an end to the prosecution of that information, and suchnolle prosequi cannot afterward be vacated and further proceedings had in that case. 44 Still in some cases, it has been held that a nolle prosequi may be set aside by leave of court, so as to reinstate proceedings on the information, or unless it was entered by mistake. 45 In our jurisdiction, we follow the rule which allows an order of dismissal to be set aside by leave of court. In one case, it was held that in the absence of any statutory provision to the contrary, the court may, in the interest of justice, dismiss a criminal case provisionally, that is, without prejudice to reinstating it before the order becomes final or to the subsequent filing of a new information for the offense. 46 The rule that in cases of concurrent jurisdiction the court first acquiring jurisdiction will retain it to the end to the exclusion of other tribunals, is not to be given unyielding effect in all cases and it does not apply where the jurisdiction of the first court has come to an end in any legal way, such as by nolle prosequi. 47 The rule on exclusions is intended to prevent confusion and conflicts in jurisdiction and to prevent a person from being twice tried for the same offense, but no accused has a vested right to be tried in any particular court of concurrent jurisdiction; and when one court of concurrent jurisdiction voluntarily relinquishes it by a nolle prosequi or dismissal of the case, there can be no legal or logical reason for preventing the other court from proceeding. 48 With much more reason will this rule apply where only branches of the same court, and not different courts, are involved in the jurisdictional conflict. There was no forum shopping in the lower court with respect to the case involved. While the procedure adopted by the prosecution was somewhat cumbersome, it was not in bad faith and, accordingly, it did not affect the legality of the proceedings. There is no showing, and petitioners failed to prove otherwise, that the assignment by raffle of the new informations to another branch of the same court was intended to prejudice herein petitioners, or to place them under less favorable circumstances, or to find a court which would act favorably on the prosecution's case. The authority of the special prosecutor appointed by the Secretary of Justice to sign and file informations has long been recognized in this jurisdiction and it has been held that such information cannot be quashed on that account. There is nothing so sacrosanct in the signing of complaints, holding of investigations, and conducting prosecutions that only an officer appointed by the President or one expressly empowered by law be permitted to assume these functions. 49 And any irregularity in the appointment does not necessarily invalidate the same if he may be considered a de facto officer. 50 Of course, where the person who signed the information was disqualified from appointment to such position, the information is invalid and the court does not acquire jurisdiction to try the accused thereon. 51 Such is not, however, the situation obtaining in the case at bar. It will be noted that respondent prosecutor was designated by the Secretary of Justice to handle the re-investigation and prosecution of the case against petitioners pursuant to Department Order No. 369. Petitioners failed to show any irregularity in the issuance of said directive. " Indeed.. The power of supervision and control vested in the Secretary of Justice under P. or shall fail to discharge any of the duties of his position. Pertinently. the power of supervision and control vested in the Secretary of Justice under Presidential Decree No. the panel of prosecutors had complete control of the investigation and prosecution of the case. The power of supervision and control vested in the Secretary of Justice includes the authority to act directly on any matter within the jurisdiction of the Prosecution Staff. Creation of the National Prosecution Service. P. where the power of the Secretary of Justice to designate acting fiscals or prosecutors to handle a particular case was limited to instances "when a provincial fiscal shall be disqualified by personal interest to act in a particular case or when for any reason he shall be unable.D.e. in Aguinaldo. 3. when Judge Pornillos entered a plea of not guilty for them after they refused to plead. Section 1679 of the Revised Administrative Code of 1917. however. et al. the Regional State Prosecution Office or the Office of the Provincial or City Fiscal and to review. Supervision and Control of the Secretary of Justice. 1275. which shall be primarily responsible for the investigation and prosecution of all cases involving violations of penal laws.At any rate. 1275 had thus been broadened beyond the confines of the old law. No. . Section 1679 of the Revised Administrative Code. and Provincial and City Fiscal's Offices as are hereinafter provided. that Department of Justice Order No. to be composed of the Prosecution Staff in the Office of the Secretary of Justice and such number of Regional State Prosecution Offices. without furnishing them copies of the information with the list of witnesses. which were allegedly in palpable violation of Section 1. Petitioners similarly dispute the legality of their arraignment on January 24. wherein the power of the Secretary was then limited only to certain instances. 1275 issued on 11 April 1978 which provides: Sec. 1. 1994.D. Domagas. No. the limitation upon which petitioners rely no longer subsisted under P.D. et al. Rule . No. after merely reading the informations against them and asking whether they understood the same. . 85 was issued pursuant to. 1275 had been broadened beyond the confines of the old law. — There is hereby created and established a National Prosecution Service under the supervision and control of the Secretary of Justice. i.. among others. 52 we said: The Court notes. . modify or revoke any decision or action of the Chief of said staff or office. vs. that is. Having been duly designated in accordance with law. It actually calls for a literal application thereof. a plea of not guilty shall be entered for him. and the information was read to them in the vernacular. the court must enter a plea of not guilty. Consequently. Any explanation or defense which petitioners would want to invoke can be properly raised during the trial. A writ of certiorari reaches the record but not the body. Nonetheless. the warrant of arrest issued on the bases of said informations filed therein and the subsequent detention of herein petitioners pursuant thereto are valid. 55 . it is the duty of the accused. We have earlier declared that Branch 10 of the trial court acquired jurisdiction over the new set of informations. In that way and in that way only can an issue be created upon which the trial shall proceed. the alleged defect in their arraignment on January 24. The writs of habeas corpus and certiorari may be ancillary to each other where necessary to give effect to the supervisory powers of the higher courts. In criminal cases. 53 Section 1 (c) of Rule 116 is quite explicit that where the accused refuses to plead. if the accused refuses to plead. 54 However. II. under such mandatory language. in addition to the other pleas authorized by law. petitioners may be prosecuted thereunder. A writ of habeas corpus reaches the body and the jurisdictional matters. considering that Branch 10 of the same trial court handling Criminal Cases Nos. 4004-M-93 to 4007-M-93 legally acquired jurisdiction over the new informations which we have likewise declared valid. but they cannot refuse to enter their plea. 1994 which was merely read in open court. habeas corpus does not lie where the petitioner has the remedy of appeal or certiorari because it will not be permitted to perform the functions of a writ of error or appeal for the purpose of reviewing mere errors or irregularities in the proceedings of a court having jurisdiction over the person and the subject matter. hence their detention should be deemed illegal. Petitioners aver that they were requesting for the suspension of the arraignment as they wanted to have a final copy of the order of January 24. Hence. What instead has to be resolved is the corollary issue of whether the petition for habeas corpus was properly filed together with their present petition for certiorari andmandamus. In conclusion. The words are so plain and unambiguous that no construction is necessary. Hence. On the Petition for Habeas corpus This petition is predicated mainly on petitioners' asseveration that the court which issued the warrant for their arrest had no jurisdiction over the case. 1994 with the assistance of counsel de oficio. to plead whether he is guilty or not of the crime charged. 1994 is deemed to have been cured when they were again arraigned on February 18.116. a writ of habeas corpus may be used with the writ of certiorari for the purpose of review. and to take the necessary steps to question the same by way of a motion for reconsideration or an appeal. but not the record. 59 we held that: The criminal case before the respondent Judge was the normal venue for invoking the petitioner's right to have provisional liberty pending trial and judgment.R. The correct course was for petitioner to invoke that jurisdiction by filing a petition to be admitted to bail. et al. The original jurisdiction to grant or deny bail rested with said respondent. the orderly course of trial should be pursued and the usual remedies exhausted before the writ may be invoked. 57 In the absence of special circumstances requiring immediate action. Bulacan is hereby directed to transfer all the aforementioned criminal cases filed against Mayor Honorato Galvez. etc. not without first applying to the Court of Appeals if appropriate relief was also available there. 1994. the Executive Judge of the Regional Trial Court of Malolos. requiring Judges Felipe N. Bulacan. with the following directive: ACCORDINGLY. III. 56 It has to be an exceptional case for the writ of habeas corpus to be available to an accused before trial. Villajuan and Victoria Villalon-Pornillos to cease and desist from hearing the criminal cases involving herein petitioners which were pending before them. claiming a right to bail per se by reason of the weakness of the evidence against him. hence their petition therefor has to be denied. this Court issued a temporary restraining order. 1994. Salazar. now in the Regional Trial Court of Malolos. Only after that remedy was denied by the trial court should the review jurisdiction of this Court have been invoked. another resolution was issued in said cases. a court will not grant the writ and discharge the prisoner in advance of a determination of his case in court. without prejudice to the final determination as to which of the two (2) sets of information will be upheld or prevail. to the Executive Judge. In addition. 60 Subsequently. et al. a petition for habeas corpus is not the appropriate vehicle for asserting a right to bail or vindicating its denial... Habeas corpus is not ordinarily available in advance of trial to determine jurisdictional questions that may arise. petitioners have dismally failed to adduce any justification or exceptional circumstance which would warrant the grant of the writ.Neither can we grant the writ at this stage since a writ of habeas corpus is not intended as a substitute for the functions of the trial court. In the absence of exceptional circumstances. 94-1-13RTC which is a petition for change of venue filed by the Vinculados. SP No. On the Motion to Cite for Contempt The records show that on February 24. Regional Trial Court of Quezon City for raffle as one (1) single case among its branches and for the branch concerned. and even then. 33261 have been resolved with finality. 58 In the case under consideration. 61 . pursuant to its resolution in Administrative Matter No. In the case of Enrile vs. to proceed with all deliberate dispatch after the issues raised in CA-G. dated March 1. after raffle. 1994. Petitioners now assert that Judge Salazar and Prosecutor Villa-Ignacio proceeded with the trial of the cases despite the aforestated directives in the above cited resolutions. 1994 62 filed by the Solicitor General wherein the latter manifested his conformity to the agreement made between the prosecution and the defense before Judge Salazar. to allow both of them to subsist will only serve to confuse and complicate the proceedings in the cases therein. the resolutions of this Court in the petition for change of venue. no cogent reason exists for the suspension of the proceedings before the court below. the defense through Justice Alfredo Lazaro. the evidence of the prosecution and defense will more or less be the same and can be utilized for the charges therein. as well as the cease and desist order issued therein. Jr. Counsel for petitioners. frustrated murder and illegal possession of firearms as having amended and superseded the original three informations for homicide and frustrated homicide. and this Honorable Court agreed that the trial in these cases shall proceed on condition that: (a) the defense shall not be deemed to have waived any issue or objection it has raised before the Supreme Court in G. there being no substantial rights of herein petitioners which may be affected thereby. presided over by Judge Jaime N. For that matter. retired Justice Alfredo Lazaro. Q-94-55481 to Q-94-55487 were assigned to and are now pending trial on the merits before Branch 103 of the Regional Trial Court of Quezon City. takes issue with said agreement on the pretension that the same is not the true agreement of the parties. but he failed to state what they actually agreed upon. By no stretch of the imagination can we interpret the same to include Judge Jaime N. the pertinent part of which agreement is as follows: 1. while it may well be that both sets of information validly exist for the nonce. Salazar. the seven informations which were docketed as Criminal Cases Nos. therefore. the three informations for homicide and frustrated homicide should be ordered withdrawn from the Quezon City trial court's docket. . As a final word. During the hearing on May 26. it becomes exigent to now consider and declare the four informations for murder. are clearly directed against the two aforenamed regional trial judges in Malolos. Correspondingly. the prosecution. We find no merit in the motion to cite them for contempt. Withal. and (b) that the trial shall also be without prejudice to whatever decision and resolution the Supreme Court may render in the case before it. No. of Quezon City.As a consequence. Bulacan. Whichever set of informations prevails. Hence. Jr. Salazar. through Senior State Prosecutor Dennis Villa-Ignacio. 114046. The records reveal that there was a manifestation dated May 31. the issues involved in this petition for certiorari do not necessarily require a suspension of the proceedings before the present trial court considering that the main petition hinges only on a determination of which set of informations shall constitute the indictments against petitioners and for which charges they shall stand trial. Brushing aside procedural technicalities.R. Sr. Marcelo charged the petitioners with falsification of public documents committed by forging the signature of Jose P. respondents. the suspension of the criminal proceedings — and the reversal . CELIA C. the motion to cite respondent judge and prosecutor for contempt and to annul proceedings. and ORDERING the withdrawal and invalidation of the three informations for homicide and frustrated homicide against petitioners from the docket of Branch 103 of the Regional Trial Court of Quezon City. Marcelo. and raffled to Branch 96 thereof (hereinafter Bersamin court). CABURNAY. On 6 June 1991. MARFIL. DENYING. the petitioners filed with the Office of the City Prosecutor of Quezon City a Motion for Review seeking the deferment of the filing of the information — or if one had been filed. Marcelo. The VTA’s were purportedly executed in Quezon City and acknowledged before petitioner Dionilo Marfil. SANTIAGO. the NBI and PCCL. PEDRO T.. DIONILO D. No. for lack of merit. THE PEOPLE OF THE PHILIPPINES. HON. PASCUAL. a notary public. THE COURT OF APPEALS. petitioners. G. SO ORDERED. Marcelo.. On 30 May 1991.” and recommended the filing of the case in court. Assistant City Prosecutor Domingo Israel found “more than sufficient evidence” of the forgery of the signature of Jose P. Q-9121285. in six voting trust agreements (VTA’s). Submitted in support of the affidavit-complaint were the findings of the National Bureau of Investigation (NBI) and of the PC/PNP Crime Laboratory that the signature on the VTA’s purporting to be that of Jose P. Jose T. docketed as Criminal Case No. and the specimen or standard signature of the latter were not written by one and the same person. 1994 DAVIDE. as “found and concluded by two (2) national police agencies. and THE QUEZON CITY PROSECUTOR. Branch 101. J. After conducting a preliminary investigation. Sr. an information for falsification of public documents was filed with the Regional Trial Court (RTC) of Quezon City.: Facts: In a complaint-affidavit sworn to on 18 March 1991 and filed with the Office of the City Prosecutor of Quezon City. MARCELO. and DANIEL T. Marcelo v. 106695 August 4.R. Sr. vs. Court of Appeals (Case Digest) EDWARD T. JR. in his capacity as The Presiding Judge of the Regional Trial Court of Quezon City. judgment is hereby rendered DISMISSING the petition for certiorari and mandamus together with the petition for habeas corpus.WHEREFORE. recommending the reversal of the Israel resolution and the withdrawal of the information in Criminal Case No. the petitioners filed a Manifestation and Motion informing the Bersamin court of the reversal and praying for the dismissal of the case. the Review Committee handed down a resolution. Q-91-21285 because of the resolution of the review committee. Judge Bersamin. In fine. Then on 5 December 1991. agreeing with the findings and conclusions of the Review Committee. the private complainant filed with the Secretary of Justice an appeal from the 15 November 1991 resolution of the Review Committee. issued an order. On 27 January 1992. which is the logical consequence of the grant of the motion to withdraw. the withdrawal of the information rendered moot the motion to dismiss. Ruling: SC ruled that the trial court in a criminal case which takes cognizance of an accused’s motion for review of the resolution of the investigating prosecutor or for reinvestigation and defers the arraignment until resolution of the said motion must act on the resolution reversing the investigating prosecutor’s finding or on a motion to dismiss based thereon only upon proof that such resolution is already final in that no appeal was taken therefrom to the Department of Justice. Bello III handed down a resolution granting the complainant’s appeal. In the meantime too. Jamolin which prayed for the withdrawal of the information in Criminal Case No. On 15 November 1991. Q-91-21285.of the Israel resolution. The private prosecutor opposed this motion. bars the filing of a new information for the same offense after the Secretary of Justice reversed the resolution of the review committee. This was followed on 10 December 1991 by the motion of Assistant City Prosecutor Conrado M. which relied on the reversal by the Review Committee of the Office of the City Prosecutor of the investigating prosecutor’s resolution to file the information. . approved by Acting City Prosecutor Lydia Navarro on 29 November 1991. then Secretary of Justice Silvestre R. reversing the 15 November 1991 Resolution of the Review Committee. ISSUE: whether a pre-arraignment dismissal of a criminal case by the trial court. the Motion to Dismiss of the accused and the Motion to Withdraw Information of the public prosecutor are hereby granted and this case is hereby dismissed without costs. and ordering the filing of a new information. there no longer remained any case to dismiss. specifically on 10 December 1991. It may be observed that the granting of both motions is a serious contradiction in that upon withdrawal of the information. the dispositive portion of which reads: ACCORDINGLY. On 13 December 1991. : The reversal of the 28th November 1996 decision[1] of the Court of Appeals setting aside that of the Regional Trial Court (“RTC”). It would appear that on 06 October 1982.respondents. correctly denied the petitioners’ motion to quash in Criminal Case No. GABRIELA M. Bulacan. Lucia. Bulacan. the instant petition is DENIED. DECISION VITUG. The complaint. later amended on 12 October 1983. Q-92-28104 straightened the course of criminal justice which had earlier gone awry due to the precipitate action of the Bersamin court. did not bar the filing of a new information as directed by the Secretary of Justice in his Resolution of 27 January 1992. Branch 19. Bulacan. Lucia. Angat.R. Nor may it be said that the prosecutor who filed the information had no authority to do so. SO ORDERED.21285. is sought in this petition for review on certiorari.The withdrawal of the information in Criminal Case No. 2882. EMILIA MARCELO and RUBEN MARCELO. 27681. SP No. SOTERA PAULINO MARCELO. of Malolos. Petitioners seek the reinstatement of the RTC decision which has ordered respondents Fernando Cruz and Servando Flores to return the ownership and possession of a portion of unregistered and untitled land located in Sta. Sotera . SIMEONA CUENCO. Bulacan. therefore. The Santiago court. J. petitioners. COURT OF APPEALS. HON. owned by the late Jose Marcelo and his spouse. filed with the Regional Trial Court of Malolos. or even the dismissal of the said case as decreed by the Bersamin court. herein petitioners. Q-91. It must also be noted that the petitioners had already been arraigned in Criminal Case No. The challenged decision of the Court of Appeals in CA-G. the filing of the new information in Criminal Case No. to herein petitioners.R. an action for the recovery of a portion of unregistered land in Sta. heirs of the deceased Jose Marcelo. 2880 and No. On the contrary. 27681 is hereby AFFIRMED. Q-92-28104 and the Court of Appeals committed no reversible error in dismissing the petition in CA-G. No jeopardy had attached as a result of the earlier termination of Criminal Case No. asked for its dismissal for a cause other than that which would constitute double jeopardy. ANGELES. Lucia. declared for taxation purposes under Tax Declarations No. FERNANDO CRUZ and SERVANDO FLORES. Angat. Q-91-21285 because the petitioners therein had not been arraigned and had. Q-92-28104 and had participated in the trial on the merits by attending the reception of the testimonies of the prosecution witnesses and even terminating the cross-examination of some of them. in fact. SP No. WHEREFORE. vs. averred that two parcels of land in Sta. the land sold to defendant Fernando Cruz contained 6.540 square meters of plaintiffs’ property) Defendant Fernando Cruz heretofore purchased the said property from Engracia dela Cruz and Vicente Marta and Florentino all surnamed Sarmiento. that as stated in their document (Exh 2). E) covering the property in the name of Jorge Sarmiento and Engracia Cruz covered an area of 6. they attempted to cultivate the disputed portion sometime in 1968. B). assailing at the same time the jurisdiction of the trial court to act on the complaint which. that on . 8505 (Exh.800[3] square meters. includes the encroached portion (7. F). “Defendant Fernando Cruz sold his property with an area of 13. B-1). but were barred from doing so by defendant Servando Flores who claimed that the area was part of the land he bought from co-defendant Fernando Cruz. that defendant Fernando Cruz caused the entire parcel to be surveyed sometime in 1967 (Exhs.000 square meters of ‘palayero’ or riceland and 7. to the extent of 7. both defendants testified to refute plaintiffs’ evidence. C) which sale.856 square meters (Exh. it was claimed. 4482 (Exh. they discovered in 1967 that a portion of said property had been encroached by defendant Fernando Cruz. Plaintiffs caused the relocation survey of said property and per plan of Lot 3096 and Lot 3098 of the Angat Cadastre as surveyed for the heirs of Jose Marcelo (Exh.540[2] square meters thereof. The said property was subsequently sold by defendant Fernando Cruz to defendant Servando Flores.856 square meters was declared by said Fernando Cruz in his name which circumstance. They invariably declared that the portion sought to be recovered by plaintiffs is part of the land which defendant Fernando Cruz acquired in 1960 from the Heirs of Jorge Sarmiento. 2882 (Exh. thus: “Evidence adduced by the plaintiffs through the testimony of plaintiff Gabriela Angeles showed that the parcel of land subject of litigation covering Lot 3098 and embraced under Tax Declaration No. 1968 (Exh. 3 & 4). “According to Gabriela. The appellate court adopted the summary of evidence made by the trial court. 1960 (Exh. had effectively asserted a cause of action for ejectment (unlawful detainer). respondent Cruz and Flores denied the allegations of petitioners. by respondents Fernando Cruz and Servando Flores. A) was originally owned by spouses Jose Marcelo and Sotera Paulino and they had been in continuous possession of said property since 1939.856 square meters of ‘parang’ or pasture land. “On the other hand.Paulino-Marcelo.856 square meters to defendant Servando Flores pursuant to a deed of sale (Kasulatan ng Bilihan) dated November 3. had been encroached. As soon as the said property was sold to Fernando Cruz. the adjoining property described and classified as ‘parang’ with an area of 7. pursuant to a ‘Kasulatan ng Partisyon sa Labas ng Hukuman at Bilihang Patulayan’ dated November 19. 7540 square meters of Lot 3098 had been encroached by defendant Fernando Cruz as indicated in the shaded portion of said plan (Exh.000 square meters. D) covering an area of 6. which he then declared for taxation purposes under Tax Declaration No. The Tax Declaration No. Following the death of plaintiff’s father in 1965. In their answer. increased his landholding to 13. F). 1960 (Exh. This explains the unnecessary increase of his property from 6. was denied. in its now assailed decision. “The counterclaim is hereby dismissed for lack of factual and/or legal basis.November 3. D).540 square meters which defendant Fernando Cruz declared the same in his name in 1961. F). Tero.856 square meters.540 square meters to the plaintiffs as indicated in the relocation survey plan.000 square meters which he purchased from the Sarmientos pursuant to extrajudicial partition with sale and embraced under Tax Declaration No. the motion. judgment is hereby rendered against the defendants ordering the following: “a. 1968 defendant Fernando Cruz sold the whole lot to defendant Servando Flores (Exh.00. to 13. “b To return the ownership and possession of 7. petitioners assail the holding of the Court of Appeals that the action initiated in 1982 by petitioners against respondent Flores would not prosper on the theory that Flores already has acquired ownership of the disputed land by ordinary acquisitive prescription. the trial court found and ratiocinated: “The crux of the matter at issue apparently resolves on the so-called pasture land (parang) supposedly sold by the Sarmientos and Engracia de la Cruz to defendant Fernando Cruz. 131 SCRA 105 considering that respondents never . E). 2882 (Exh. The plan of Lot 3096 and Lot 3098 of the Angat Cadastre (Exhs. Petitioners moved for a consideration. A). the said ‘parang’ is a part and parcel of plaintiffs’ property to which they had been in possession thereof prior to World War II and evidenced by Tax Declaration No. and To pay attorney’s fees in the amount of P5. the dispositive portion of its decision concluded: “WHEREFORE. I). The respondent court erred in not applying the doctrine laid down by this Honorable Court in Tero vs. This is evident as indicated by the fact that the same was only declared by Fernando Cruz in his name in 1961 as evidenced by the tax declaration issued in his favor (Exh. who thereupon occupied and cultivated it.”[4] Evaluating the evidence of the contending parties.”[5] The trial court thereupon ruled in favor of petitioners. 4882 (Exh. On the other hand. however. Petitioners argue that – “1.”[6] Respondents Cruz and Flores went to the Court of Appeals. B and B-1) inevitably indicated that what has been encroached by defendants refers to the ‘parang’ of 7. “No actual and/or moral damages (sic) is awarded for lack of factual evidence. 4882 (Exh.000. The said 'parang' was never included and/or embraced in the Tax Declaration No. the appellate court reversed the judgment of the court a quo. E) of the Sarmientos at the time of the said sale in favor of defendant Fernando Cruz pursuant to an extrajudicial partition with sale dated November 19. In this latest recourse. Kina Miguel Illescas. respondent Cruz declared both parcels. Contrary to the insistence of petitioners. and that the “parang. Bulacan.540 square meters lawfully. kina Fabian Garcia at Juan Geronimo. y Juan de la Cruz. Humahangga sa Norte. whereas the petitioner proved the 7.” containing 7.856 square meter property. under a “Kasulatan ng Partisyon sa Labas ng Hukuman at Bilihang Patuluyan. 4482.800 square meters which he then sold to respondent Flores.. this agreement provided thus: “1.231 square meters of their parents in their possession since 1939. “2. Oeste. as the respondent court already stated that what was sold to respondent Cruz was the 6. Maria Sarmiento and Florentino Sarmiento. P.I. subalit ito’y mayroong kasamang parang na hindi lamang naipatala niyang nakaraang pasukan ng lupa sa tanggapan ng Assessor Provincial. Este. Walang mejoras at ang hangganan sa paligid ay makikilala sa pamamagitan ng matutuwid na sikang o pilapil na buhay. The petition must be denied. Na akong si Engracia de la Cruz at ang aking yumao ng asawang si Jorge Sarmiento (nuong nabubuhay ito) ay nakapagpundar ng isang lupa na ang buong description ay gaya ng sumusunod: “Isang parselang lupang PALAYERO na may kasamang PARANG (Cogonales) na matatagpuan sa Barrio Ng Santa Lucia. kay Antonio de la Rosa. it said: .” covers only the “palayero” or riceland. Ciriaco Reyes. The trial court itself likewise found that the sale by the Sarmientos to respondent Cruz covered both the riceland and the pasture land.e. kaya’t ngayon ay magalang naming hinihiling na matala ang naturang parang. the “Kasulatan ng Partisyon sa Labas ng Hukuman at Bilihang Patuluyan.”[8] (Emphasis supplied) Shortly after the execution of the deed of sale in his favor.” executed on 19 March 1960 by Engracia dela Cruz (widow of Jorge Sarmiento) and her children Vicente Sarmiento. which measure about 6. and substitute its own perception of the facts contrary to the incontrovertible evidence. amillarado P270. i. pertained not only to the “palayero” but also to the “parang” as well. has not been included. “2. hence respondents can not account as to how they acquire said lot. klasipikado 2-b.000 metros cuadrados. The respondent court erred in disregarding the findings of facts of the trial court.856 metros cuadrados.856 square meters. the palayero and the parang. Angat.”[7] Petitioners assert that the property sold by the Sarmientos to respondent Cruz on 19 November 1960. Juan de la Cruz hoy Jose Marcelo y Mariano de la Cruz hoy Felip de Leon. at ang parang ay may sukat na 7.acquired the 7. Ayon sa Tax No. for taxation purposes in 1960 in the Office of the Provincial Assessor and forthwith a new tax declaration was issued in his name for the entire 13.00 Tax No. Sur. 4482 ay lupang palayero lamang ang nakatala. “Ang Palayero ay may sukat na 6.000 square meters.540 square meters formed part of 19. Engracia de la Cruz and her children Vicente. a lessee. 1134. such possessory acts. that the possession be “in good faith and with just title. acquisitive prescription can only be extraordinary in character. Biarnesa. by a usufructuary. to constitute the foundation of a prescriptive right. In order to ripen into ownership. mere possession with a juridical title. on 03 November 1968. public peaceful and uninterrupted. Flores had been in possession of the entire area in the concept of an owner and holding it in that capacity for almost fourteen (14) years before petitioners initiated their complaint on 06 October 1982.[18] In Doliendo vs. an agent or a pledgee. 1960 x x x.” Thus: . as aforesaid. [15] without good faith and just title.such as. but that the grantor is neither the owner nor in a position to transmit the right. [17] There is. no matter how long. and Florentino. all surnamed Sarmiento. possession must be in the concept of an owner. not being in the concept of an owner. do not start the running of the period of prescription.[11] unless the juridical relation is first expressly repudiated and such repudiation has been communicated to the other party.”[16] The good faith of the possessor consists in the reasonable belief that the person from whom the thing is received has been the owner thereof and could thereby transmit that ownership. It is worthy to note that the ownership of the adjoining property by defendant Fernando Cruz originated from an extrajudicial partition with sale (Kasulatan ng Partisyon sa Labas ng Hukuman at Bilihang Patuluyan dated November 19. From that time on. As regards. x x x”[9] In turn. to exemplify. Article 1134 of the Civil Code provides: “ART. must be en concepto de dueno. that possession should be adverse. Acquisitive prescription is a mode of acquiring ownership by a possessor through the requisite lapse of time. 4482 and a pasture land (parang) containing an area of 7.000 square meters and embraced under Tax Declaration No. Ordinary acquisitive prescription requires possession of things in good faith and with just title for the time fixed by law. real or immovable property. Ordinary acquisitive prescription demands.856 square meters.[13]Possession.[10] Thus. if not. cannot ripen into ownership by acquisitive prescription.“x x x. to use the common law equivalent of the term.[12] Acts of possessory character executed due to license or by mere tolerance of the owner would likewise be inadequate. or. sold to defendant Fernando Cruz a rice land containing an area of 6.[14] Acquisitive prescription of dominion and other real rights may be ordinary or extraordinary. a trustee. Ownership and other real rights over immovable property are acquired by ordinary prescription through possession of ten years. the 13. upon the other hand.[19] the Supreme Court has explained the law in Article 1130 of the Civil Code which states that the “title for prescription must be true and valid. just title when the adverse claimant comes into possession of the property through any of the modes recognized by law for the acquisition of ownership or other real rights.” Respondent Flores immediately took possession of the property to the exclusion of all others and promptly paid the realty taxes thereon. Marta.856 square meters of land to respondent Flores under a “Kasulatan ng Bilihan. respondent Cruz sold. Under the said document. et.’ It is evident that by a ‘titulo verdadero y valido’ in this connection we are not to understand a ‘titulo que por si solo tiene fuerza de transferir el dominio sin necesidad de la prescricion’ (a title which of itself is sufficient to transfer the ownership without the necessity of the lapse of the prescription period).’ a titulo colorado’ being one ‘which a person has when he buys a thing. This is so because the said portion of 7. this cannot be said of appellant Flores’ possession of the property. petitioners vs.’ (Viso Derecho Civil. the whole area consisting of the riceland and pasture land was already covered by a tax declaration in the name of Fernando Cruz (Exh. from one whom he believes to be the owner. it explained: “In the instant case. 3&4). the disputed portion referred to as “parang” was included in the sale to appellant Flores. al. Hon. appellant Servando Flores took possession of the controverted portion in good faith and with just title.”[21] This Court finds no cogent reasons to reverse the above findings of the appellate court and thus gives its affirmance to the assailed decision. as might happen when one is in possession of a thing in the belief that it had been bequeathed to him. appellant Flores’ possession of the entire parcel which includes the portion sought to be recovered by appellees was not only in the concept of an owner but also public.“We think that this contention is based on a misconception of the scope and effect of the provisions of this article of the Code in its application to ‘ordinary prescription. Peter Paul Dimatulac and Veronica Dimatulac. I) As explicitly mentioned in the document of sale (Exh. Parenthetically. SO ORDERED. WHEREFORE. and we accept the opinion of a learned Spanish law writer who holds that the ‘titulo verdadero y valido’ as used in this article of the code prescribes a ‘titulo colorado’ and not merely ‘putativo. although in fact it did not. at the time of the sale.’ and a ‘titulo putativo’ ‘being one which is supposed to have preceded the acquisition of a thing. While it is true that the possession of the entire area by his predecessor-in-interest (Fernando Cruz) may not have been peaceful as it was indeed characterized with violence which resulted in the death of Jose Marcelo. F) and further surveyed in his favor (Exhs. in good faith. the petitioner for review on certiorari is DENIED.540 square meters was an integral part of that bigger tract of land which he bought from Fernando Cruz under public document (Exh. I) executed in 1968. peaceful and uninterrupted. Hence. 541)”[20] The records of the case amply supports the holding of the appellate court that the requirements for ordinary prescription hereinabove described have indeed been duly met. No costs.respondents. Parte Segunda. Sensinando Villon. in respect of which no evidence to the contrary appears on record. Facts: . p. Private Prosecutor Amado Valdez then filed a Motion to issue hold departure order and Urgent Motion to defer proceedings.Mandap. Mandap. A complaint for murder was filed in theMTC and after preliminary investigation. Hence. The Secretary of Justice then set aside his order and theappeal was held not and academic due to the previous arraignment of the accused for homicide. Secretary Guingona of the DOJ resolved the appeal in favor of the petitioners. .The motion for reconsideration was also denied. However. thePetitioner appealed the resolution of Alfonso-Flores tothe Secretary of Justice. Judge David then issued a resolution findin greasonable ground that the crime of murder has been committed and that the accused is probably guilty hereof. she conducted a reinvestigation and resolved that the Yabuts and Danny were in conspiracy.SP03 Virgilio Dimatulac was shot dead at his residence inPampanga. An information forhomicide was also filed before the Regional Trial Court. or upon motion of the private respondents.Judge Roura voluntarily inhibited himself and was replaced by Judge Villon. They also filed a Petition for prohibition with the Court of Appeals. Judge Villon denied the Motion to set aside arraignment. He also stated that he will nolonger allow the private prosecutor to participate. along with the other accused. Issues: Whether the Office of the Provincial Prosecutor committed grave abuse of discretion in reinvestigating the case without having therespondents within the custody of the law and forfiling the information pending the appeal of the resolution with the DOJ. The Petitioners filed with the RTC a Manifestation submitting documentary evidence to support theircontention that the offense committed was murder. ProvincialProseutor Maranag ordered for the release of David. Magat. and committed homicide. The Yabuts opposed the Manifestation because they have already been arraigned and they would be put under double jeopardy. Judge Roura deferred the resolution of the first Motion and denied the second. this petition for certiorari/prohibition and mandamus. Though it was not clear whether Pampanga AssistantProvincial Prosecutor Sylvia Alfonso-Flores acted motu proprio. He also set the arraignment of the accused. Judge Villon ordered for the resetting of the arraignment. The petitioners filed a Motion to inhibit Judge Roura for hastily setting the date for arraignment pending the appeal in the DOJ and for prejudging the matter. Public Prosecutor Datu filed a Manifestation and Comment with the trial court and opposed the inhibition of Roura. Before the information for homicide was filed. Judge Raura approved the cash bonds of the Yabuts and r ecalled the warrants of arrest against them. and Yambao were arrestedand it was only Yambao who submitted his counter-affidavit. The Yabuts entered a plea of not guilty. JudgeDesignate David issued warrants of arrest against theaccused. He also ruled that treachery was present. Magat. The petitioners then filed a Urgent Motion to set aside arraignment. and Naguit. Only David. Rule 112 ofthe Rules of Court. 121245 August 23.. TOLENTINO.R. 5. Branch 274. HONORABLE RAUL E. the Presiding Judge of the Regional Trial . the dismissal of the case is null and void and double jeopardy cannot be invoked by the accused. Whether the Secretary of Justice committed grave abuse of discretion in reconsidering his order. vs. petitioner. intervenor. The DOJ was also in grave abuse of its discretion for setting aside its order. Since the accused were out on bail. No. 1995HUBERT G. Hence. respondents. 121234 August 23. PABLO FORMARAN. 121297 August 23. GATCHALIAN. 4.HONORABLE RAUL E.Rule 112 states that the prosecutor is not bound by thefindings of the judge who conducted the investigation. 1995 MICHAEL A. theresolution should be based on the review of the record andevidence transmitted. JR. LEJANO. Alfonso-Reyes was guilty of having acted with graveabuse of discretion for conducting a reinvestigation despitethe fact that the Yabuts were still at large. J.R. 1995 ANTONIO L. No. the Presiding Judge of the Regional Trial Court of Parañaque. Judge Roura acted with grave abuse of discretion fordeferring the resolution to the motion for a hold departureorder. There is nothing in the law whichprohibits the filing of an appeal once an information is filed. P. it has relinquished its power of control and supervision of the Public Prosecutor. vs. petitioner. WEBB.failed to file their counter-affidavits. DE LEON. petitioner. she should have sustained therecommendation since all the accused. except Yambao. and HONORABLE AMELITA G. Decision: Petition is GRANTED. G. HONORABLE RAUL E. Thoughhe is not bound to the resolution of the DOJ. the Presiding Judge of the Regional Trial Court of Parañaque. The filing of an appeal is provided in Sec. ESCANO. Villon acted with grave abuse of discretionin proceeding with the arraignment and for denyingthe Motions to set aside the arraignment. and NATIONAL BUREAU OF INVESTIGATION. Branch 258. DE GUIYAB. G. HONORABLE ZOSIMO V. No. It is impossible forAlfonso-Reyes to not have known the appeal filed with theDOJ. the Presiding Judge of the Regional Trial Court of Parañaque. In doing so. PEOPLE OF THE PHILIPPINES. the Presiding Judge of the Regional Trial Court of LAURO VIZCONDE. vs. Hence. The state has been deprived of due process. DE LEON. the Motion shouldhave been granted since they could have easily fled. he should haveperused the documents submitted. ZENON L.R. DE LEON.Whether Hon. Branch 259. Though Sec. ROBERTO LAO. Michael Gatchalian. During the preliminary investigation.. who narrated the manner of how Biong investigated and tried to cover up the crime at bar. de Leon and Amelita Tolentino in Criminal Case No.: Before the Court are petitions for the issuance of the extraordinary writs of certiorari. PUNO. Branch 274. 7 (2) the sworn statements of two (2) of the former housemaids of the Webb family in the persons of Nerissa E. Zuño to conduct the preliminary investigation 3 of those charged with the rape and killing on June 30. and the sworn statements of Normal White. a security guard and Manciano Gatmaitan. 1991 he was a passenger of United Airlines Flight No. the Presiding Judge of the Regional Trial Court of Parañaque. 808 bound for New York and who expressed doubt on whether petitioner Webb was his co-passenger in the trip. 4her mother Estrellita Nicolas-Vizconde. a former live-in partner of Gerardo Biong. petitioner Webb filed with the DOJ Panel a Motion for Production And Examination of Evidence and Documents for the NBI to produce the following: . Vizconde. J. BF Homes. 1995 of their principal witness. JOVENCITO ZUÑO. the National Bureau of Investigation (NBI) filed with the Department of Justice a letter-complaint charging petitioners Hubert Webb. 1991 of Carmela N. two of the Vizconde maids. 10 The genital examination of Carmela confirmed the presence of spermatozoa. PEOPLE OF THE PHILIPPINES.. 95-404. the Presiding Judge of the Regional Trial Court of Parañaque. Antonio J. ROBERTO LAO. The autopsy reports of the victims were also submitted and they showed that Carmela had nine (9) stab wounds. 1 From the records of the case. 9 (5) the sworn statements of Belen Dometita and Teofilo Minoza. DE GUIA. ZENON L. HONORABLE ZOSIMO V. the NBI presented the following: (1) the sworn statement dated May 22. Estrellita twelve (12) and Jennifer nineteen (19). and NATIONAL BUREAU OF INVESTIGATION.Court of Parañaque. PABLO FORMARAN. and HONORABLE AMELITA G.respondents. Metro Manila. Rosales and Mila S. 1994. an engineer. Forthwith. 5 and her sister Anne Marie Jennifer 6 in their home at Number 80 W. St. the Department of Justice formed a panel of prosecutors headed by Assistant Chief State Prosecutor Jovencio R. Branch 259. (2) enjoin the respondents from conducting any proceeding in the aforementioned criminal case. 8 (3) the sworn-statement of Carlos J. Branch 258. TOLENTINO. ESCANO. prohibition and mandamuswith application for temporary restraining order and preliminary injunction to: (1) annul and set aside the Warrants of Arrest issued against petitioners by respondent Judges Raul E. and (3) dismiss said criminal case or include Jessica Alfaro as one of the accused therein. LEONARDO GUIYAB. Alfaro who allegedly saw the commission of the crime. Parañaque. JR. Gaviola. it appears that on June 19. 11 Before submitting his counter-affidavit. (4) the sworn statement of Lolita Birrer. Vinzons. 2 with the crime of Rape with Homicide. Maria Jessica M. Cristobal who alleged that on March 9. Lejano and six (6) other persons. 12 His alibi was corroborated by Honesto Aragon. he submitted documentary evidence that he bought a bicycle and a 1986 Toyota car while in the . of obtaining the original of said sworn statement. (h) transmittal letter to the NBI. Sylvia Climaco. (e) Investigation records of NBI on Engr. et al. that petitioner Webb failed to obtain from the NBI the copy of the Federal Bureau of Investigation (FBI) Report despite his request for its production. (i) The names of NBI officials/agents composing the Task Force Jecares. It appears. for in the course of its proceedings. Jr. The motion was granted by the DOJ Panel and the NBI submitted photocopies of the documents. He succeeded. (c) Sworn Statements of Gerardo C. Atty. (j) Statements made by other persons in connection with the crime charged. Lecinia Edrosolano. 951099 in the Regional Trial Court (RTC) of Makati. 1991 and returned to the Philippines on October 27. 1991). Federal Bureau of Investigation on the admission to and stay of Hubert Webb in the United States from March 9. SN-91-17 of the Medico Legal Officer.. Regional Deputy Director. It alleged it lost the original of the April 28. including the report of the investigation conducted by Superintendent Rodolfo C.. Cabanayan. however. 13 To further support his defense.. interview. (f) List of names of 135 suspects/persons investigated by the NBI per Progress Report dated September 2. The original was then submitted by petitioner Webb to the DOJ Panel together with his other evidence. 1992. among others. including their respective positions and duties. 63. Petitioner Webb claimed during the preliminary investigation that he did not commit the crime at bar as he went to the United States on March 1. produced a copy of said original in compliance with a subpoena duces tecum. Edgardo Venture and Pamela Francisco. Arlis Vela. Sonia Rodriguez. 1995 sworn statement of Alfaro. Biong (other than his Sworn Statement dated October 7. (g) Records of arrest.(a) Certification issued by the U. Arturo L. 1992. (b) Laboratory Report No. Gina Roque.S.D. 1991 submitted by Atty. M. Br. investigation and other written statements of Jessica Alfaro (other than the May 22. 1991 to October 22. Supervising Agent. Sison. for the purpose. Danilo Aguas. NCRC. This compelled petitioner Webb to file Civil Case No. 1995 Sworn Statement) conducted by the NBI and other police agencies. (d) Photographs of fingerprints lifted from the Vizconde residence taken during the investigation. Prospero A. Mercader. Dr. in Bicutan. Carlos and Andrew Syyap. Miguel Rodriguez and Gerardo Biong — submitted sworn statements. who issued the warrants of arrest against the petitioners. and a motion to dismiss denying their complicity in the rape-killing of the Vizcondes. 95-404 and raffled to Branch 258 presided by respondent judge Zosimo V. pairing judge of Judge Escano. The other respondents — Hospicio "Pyke" Fernandez. 16 Only the respondents Joey Filart and Artemio "Dong" Ventura failed to file their counter-affidavits though they were served with subpoena in their last known address. 1995. On August 11. On August 11. 15 Petitioner Webb likewise submitted the letter dated July 25. Robert Heafner. 1991 as a passenger in United Airlines Flight No. citing certain records tending to confirm. 1991. In their petitions at bar. however. and (4) the DOJ Panel unlawfully intruded into judicial prerogative when it failed to charge Jessica Alfaro in the Information as an accused. California on March 9. 18 On the same date. 1995. Muntinlupa watching video tapes. 17 In his sworn statement. responses. 1991 until 3 o'clock in the morning of the following day. On August 8. 808. Legal Attache of the US Embassy. I Petitioners fault the DOJ Panel for its finding of probable cause. A8818707 on June 14. 1995 sworn statement of Jessica Alfaro is inherently weak . They insist that the May 22. it filed the corresponding Information 19 against petitioners and their coaccused with the Regional Trial Court of Parañaque. He claimed that his co-petitioner Lejano was with him. the DOJ Panel issued a 26-page Resolution "finding probable cause to hold respondents for trial" and recommending that an Information for rape with homicide be filed against petitioners and their co-respondents. Escano. Petitioners Gatchalian and Lejano likewise gave themselves up to the authorities after filing their petitions before us.United States on said dates 14 and that he was issued by the State of California Driver's License No.. (3) the DOJ Panel denied them their constitutional right to due process during their preliminary investigation. Taguig. It was. 1995 of Mr. his arrival at San Francisco. We find the petitions bereft of merit. among others. The case was re-raffled to Branch 274. 1995. The case was docketed as Criminal Case No. petitioner Gatchalian alleged that from 11 o'clock in the evening of June 29. the respondent judge Raul de Leon. Judge Escano voluntarily inhibited himself from the case to avoid any suspicion about his impartiality considering his employment with the NBI before his appointment to the bench. Antonio "Tony Boy" Lejano. petitioners contend: (1) respondent Judges de Leon and Tolentino gravely abused their discretion when they failed to conduct a preliminary examination before issuing warrants of arrest against them: (2) the DOJ Panel likewise gravely abused its discretion in holding that there is probable cause to charge them with the crime of rape with homicide. Peter Estrada. petitioner Webb voluntarily surrendered to the police authorities at Camp Ricardo Papa Sr. at New Alabang Village. he was at the residence of his friends. presided by Judge Amelita Tolentino who issued new warrants of arrest against the petitioners and their co-accused. Michael Gatchalian. Procedure. in such number of copies as there are respondents. Within ten (10) days from receipt thereof.and uncorroborated. the investigating officer shall either dismiss the same if he finds no ground to continue with the inquiry." Section 3 of the same Rule outlines the procedure in conducting a preliminary investigation. or if subpoenaed. 3. 1995 sworn statements. state prosecutor or government official authorized to administer oath. the respondent shall submit counter-affidavits and other supporting documents. plus two (2) copies for the official file. the investigating officer shall base his resolution on the evidence presented by the complainant. attaching thereto a copy of the complaint. They hammer on alleged material inconsistencies between her April 28. They assail her credibility for her misdescription of petitioner Webb's hair as semi-blonde. does not submit counter-affidavits within the ten (10) day period. He shall have the right to examine all other evidence submitted by the complainant. The said affidavits shall be sworn to before any fiscal. (d) If the respondent cannot be subpoenaed. (c) Such counter-affidavits and other supporting evidence submitted by the respondent shall also be sworn to and certified as prescribed in paragraph (a) hereof and copies thereof shall be furnished by him to the complainant. . or. a notary public. and should be held for trial. affidavits and other supporting documents. — Except as provided for in Section 7 hereof. (b) Within ten (10) days after the filing of the complaint. We start with a restatement of the purpose of a preliminary investigation. who must certify that he personally examined the affiants and that he is satisfied that they voluntarily executed and understood their affidavits. or issue a subpoena to the respondent. no complaint or information for an offense cognizable by the Regional Trial Court shall be filed without a preliminary investigation having been first conducted in the following manner: (a) The complaint shall state the known address of the respondent and be accompanied by affidavits of the complainant and his witnesses as well as other supporting documents. . They also criticize the procedure followed by the DOJ Panel when it did not examine witnesses to clarify the alleged incredulities and inconsistencies in the sworn statements of the witnesses for the NBI. 1995 and May 22. . thus: Sec. in their absence or unavailability. whether there is a sufficient ground to engender a wellgrounded belief that a crime cognizable by the Regional Trial Court has been committed and that the respondent is probably guilty thereof. Section 1 of Rule 112 provides that a preliminary investigation should determine " . Applying these basic norms. and the investigating officer shall resolve the case within ten (10) days therefrom. . against unreasonable searches and seizures of whatever nature . the investigation shall be deemed concluded. thus: 26 xxx xxx xxx To illustrate. . they may submit questions to the investigating officer which the latter may propound to the parties or witnesses concerned. He shall certify under oath that he. the investigating officer shall determine whether or not there is sufficient ground to hold the respondent for trial. we are not prepared to rule that the DOJ Panel gravely abused its discretion when it found probable cause against the petitioners. 21 Probable cause to warrant arrest is not an opaque concept in our jurisdiction. he shall prepare the resolution and corresponding information. or as shown by the record. the following are some examples of inconsistencies in the two sworn statements of Alfaro: . . . Petitioners belittle the truthfulness of Alfaro on two (2) grounds: (a) she allegedly erroneously described petitioner Webb's hair as semi-blond and (b) she committed material inconsistencies in her two (2) sworn statement. Section 4 of Rule 112 then directs that "if the investigating fiscal finds cause to hold the respondent for trial.24 The terms are legally synonymous and their reference is not to a person with training in the law such as a prosecutor or a judge but to the average man on the street." 20 An arrest without a probable cause is an unreasonable seizure of a person. the average man weighs facts and circumstances without resorting to the calibrations of our technical rules of evidence of which his knowledge is nil. during which the parties shall be afforded an opportunity to be present but without the right to examine or cross-examine. 25 It ought to be emphasized that in determining probable cause. an authorized officer. and violates the privacy of persons which ought not to be intruded by the State. has personally examined the complainant and his witnesses. If the parties so desire. 22Other jurisdictions utilize the term man of reasonable caution 23 or the term ordinarily prudent and cautious man. that there is reasonable ground to believe that a crime has been committed and that the accused is probably guilty thereof .(e) If the investigating officer believes that there are matters to be clarified. he may set a hearing to propound clarificatory questions to the parties or their witnesses." The need to find probable cause is dictated by the Bill of Rights which protects "the right of the people to be secure in their persons . (f) Thereafter. . Rather. Continuing accretions of case law reiterate that they are facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been committed by the person sought to be arrested. he relies on the calculus of common sense of which all reasonable men have an abundance. . Upon the evidence thus adduced. and in the floor.: 27 xxx xxx xxx . her mouth gagged and she was moaning and I saw tears on her eyes." In its Resolution. 1991. She just said "on the following day I read in the newspaper that there were three persons who were killed . viz.On whether Alfaro knew Carmela before the incident in question First Affidavit: She had NOT met Carmela before June 29. on top of Carmela and pumping." On whether Alfaro saw the dead bodies First Affidavit: She did not see the three dead persons on that night. which was only a little more than a meter high. Second Affidavit: She saw Hubert Webb "with bare buttocks." Second Affidavit: They "entered the gate which was already open." Second Affidavit: "I peeped through the first door on the left." On the alleged rape of Carmela Vizconde First Affidavit: She did not see the act of rape." On how Webb. 1991. Lejano. I saw Hubert on top of Carmela. bloodied. . Second Affidavit: "I met her in a party sometime in February. . and Ventura entered the Vizconde house First Affidavit: "by jumping over the fence. I saw two bodies on top of the bed. Second Affidavit: "I proceeded to the iron grill gate leading to the dirty kitchen. the DOJ Panel ruled that these alleged misdescription and inconsistencies did not erode the credibility of Alfaro." On whether Alfaro entered the Vizconde house First Affidavit: She never entered the house. We quote the pertinent ruling. 1084). another counsel for respondent Webb submitted his memorandum suggesting that the instant complaint "should not be decided within the month to give time to the NBI to coordinate with the FBI on the latter's inquiry into the whereabouts of Hubert Webb . .-based witnesses. The maxim falsus in uno. criminal undertakings are only rarely documented by agreements in writing. 210 SCRA 402 [1992]." In said memorandum." (Angelo vs. InAngelo. 94 Phil. Furthermore. it is a well-established doctrine that conspiracy need not be proved by direct evidence of prior agreement to commit the crime. citations omitted. Neither can we discredit Alfaro merely because of the inconsistencies in her two sworn statements.S. It is merely a latinism describing the conclusion reached by a court in a particular case after ascribing to the evidence such weight or lack of weight that the court deemed proper. Thus. in the nature of things. such circumstance is not sufficient to discredit the entire testimony of the witness. falsus in omnibus is not a rule of law. 86 SCRA 699). counsel for respondent Webb calls for the application of the maxim falsus in uno. It is not a legal presumption either. let alone a general rule of law which is universally applicable. Granting. Indeed. that a part of the witness' testimony is untrue. As held in Angelo: There is no rule of law which prohibits a court from crediting part of the testimony of a witness as worthy of belief and from simultaneously rejecting other parts which the court may find incredible or dubious. conspiracy may be inferred from the conduct of the accused before. showing that the several accused had acted in concert or in unison with each other. the Court continued. 1995. and to check on our U. the Court refused to discredit the testimony of a witness accusing therein petitioner for the slaying of one Gaviano Samaniego even though said witness failed to name Angelo in his affidavit which was executed five (5) months earlier. "only rarely would such a prior agreement be demonstrable since. Molleda. On August 7. among others. Lumahang. granting for purposes of argument merely that she is a co-conspirator. it is well to note that confessions of a co-conspirator may be taken as evidence to show the probability of the co-conspirator's participation in the commission of the crime (see People vs. In the case before us. evincing a common purpose or design. This is untenable. complainant reasoned out that Alfaro was then having reservations when she first executed the first statement and . Court of Appeals. .As regards the admissibility of Alfaro's statements. People vs. during and after the commission of the crime. falsus in omnibus arising from the inconsistencies of Alfaro's statements. held back vital information due to her natural reaction of mistrust. This being so, the panel believes that the inconsistencies in Alfaro's two sworn statements have been sufficiently explained especially specially so where there is no showing that the inconsistencies were deliberately made to distort the truth. Consequently, the probative value of Alfaro's testimony deserves full faith and credit. As it has been often noted, ex parte statements are generally incomplete because they are usually executed when the affiant's state of mind does not give her sufficient and fair opportunity to comprehend the import of her statement and to narrate in full the incidents which transpired (People vs. Sarellana, 233 SCRA 31 [1994]; Angelo vs. Court of Appeals, supra). In the case at bar, there is no dispute that a crime has been committed and what is clear before us is that the totality of the evidence submitted by the complainant indicate a prima faciecase that respondents conspired in the perpetration of the imputed offense. We note that the May 22, 1995 sworn statement of Alfaro was given with the assistance of counsel 28 and consists of six (6) pages, in single space reciting in rich details how the crime was planned and then executed by the petitioners. In addition, the DOJ Panel evaluated the supporting sworn statements of Nerissa Rosales and Mila Gaviola, former housemaids of the Webbs, Carlos J. Cristobal, a passenger in United Airlines Flight No. 808 and Lolita Birrer, a paramour of Gerardo Biong. The Panel assayed their statements as follows: 29 xxx xxx xxx According to Nerissa E. Rosales, a former housemaid of the Webb family, on June 29, 1991, between 7:00 o'clock and 8:00 o'clock in the evening, Hubert was at home inside his room with two male visitors. She knew it because she and her co-housemaid, Loany, were instructed by Hubert to bring them three glasses of juice. It was the last time she saw Hubert and was later told by then Congressman Webb that Hubert was in the United States. While Mila S. Gaviola, another former housemaid of the Webb family and who served as a laundry woman, claims, aside from corroborating the statement of Nerissa Rosales, that on June 30, 1991, she woke up at around 4:00 in the morning and as what she used to do, she entered the rooms of the Webbs to get their clothes to be washed. As a matter of fact, in that early morning, she entered Hubert's room and saw Hubert, who was only wearing his pants, already awake and smoking while he was sitting on his bed. She picked up Hubert's scattered clothes and brought them together with the clothes of the other members of the family to the laundry area. After taking her breakfast, she began washing the clothes of the Webbs. As she was washing the clothes of Hubert Webb, she noticed fresh bloodstains in his shirt. After she finished the laundry, she went to the servant's quarters. But feeling uneasy, she decided to go up to the stockroom near Hubert's room to see what he was doing. In the said stockroom, there is a small door going to Hubert's room and in that door there is a small opening where she used to see Hubert and his friends sniffing on something. She observed Hubert was quite irritated, uneasy, and walked to and from inside his room. On that day, she noticed Hubert left the house at around 1:00 in the afternoon and came back at around 4:00 in the same afternoon and went inside his room using the secret door of the house. It was the last time that she saw Hubert until she left the Webb family. On the other hand, Carlos J. Cristobal alleged that on March 9, 1991, at about 10:00 in the morning, he was at the Ninoy Aquino International Airport as he was then scheduled to take the United Airlines Flight No. 808 at 2:00 in the afternoon for New York. At the airport's lobby, he saw then Congressman Freddie Webb with a male companion. He greeted him and Webb answered: "Mabuti naman, at ito, ihahatid ko ang anak ko papuntang Florida." He knew Freddie Webb because he often watched him then in a television show "Chicks to Chicks." He observed that the man whom Freddie Webb referred to as his son, was of the same height as Freddie. The son referred to has fair complexion with no distinguishing marks on his face. He (son of Webb) was then wearing a striped white jacket. When he and his children were already inside the plane, he did not see Freddie anymore, but he noticed his son was seated at the front portion of the economy class. He never noticed Freddie Webb's son upon their arrival in San Francisco. He claims that, while watching the television program "DONG PUNO LIVE" lately, he saw the wife of Freddie Webb with her lawyer being interviewed, and when she described Hubert as "moreno" and small built, with a height of five feet and seven inches tall, and who was the one who left for United States on March 9, 1991, he nurtured doubts because such description does not fit the physical traits of the son of Freddie, who left with him for United States on the same flight and date. Lolita Birrer, alleged that she know Gerardo Biong because she had an affair with him for almost three (3) years and in fact, she had a child with him who is now four (4) years old. Their relationship started in February, 1991 until she broke up with him in September 1993. She recalls that on June 29, 1991, at around 6:00 p.m., Biong invited her to play mahjong at the canteen of a certain Aling Glo located at the back of the Parañaque Municipal Hall. At about 2:30, in the early morning of January 30, 1991, the radio operator of the Parañaque police told Biong that he has a phone call. Before Biong went to the radio room, she was instructed to take him over and after somebody won the game, she followed Biong at the radio room where she overheard him uttering, "Ano?, Saan? Mahirap yan, Paano, o sige, aantayin kita, O ano?, dilaw na taxi, o sige." When he put the phone down, Biong told her, "Mayroon lang akong rerespondehan, ikaw muna ang maupo" and then, he went outside the canteen apparently waiting for somebody. Twenty minutes later, a taxi, colored yellow, arrived with a male passenger sitting at the backseat and parked near the canteen. After it made some signals by blinking its headlight, Biong rode thereat at the front seat beside the driver and then, they left. She was not able to recognize the male passenger because the window of the taxi was tinted. Biong came back at around 7:00 of the same morning and when he arrived, he immediately washed his hands and face, and took his handkerchief from his pocket which he threw at the trash can. She asked him why he threw his handkerchief and he answered, "Hmp . . . amoy tae." She inquired what happened in BF Homes and he replied, "Putang inang mga batang iyon, pinahirapan nila ako." Biong later invited her for breakfast, but they first went to his office where she observed him doing something in his steel cabinet while he appeared to be uneasy. Moments later, Galvan, another policeman of Parañaque, arrived and said, "Oy Biong, may tatlong patay sa BF, imbestigahan mo" to which Biong answered, "Oo susunod na ako." Biong went to the office of Capt. Don Bartolome who offered to accompany him and with whom she asked permission to go with them. Before they proceeded to the place where the killings happened, she asked Biong if he knew the exact address and the latter immediately responded, "Alam ko na yon." She was surprised because Galvan never told him the place of the incident. As soon as they arrived at the Vizconde's residence, Biong instructed the housemaids to contact the victim's relatives, while the security guard fetched the barangay chairman and the president of the Homeowners Association. When all these persons were already in the house, Biong started recording the wounds of the victim. Inside the master's bedroom, she saw Biong took a watch from the jewelry box. Because she could not tolerate the foul odor, she and Capt. Bartolome went out of the room and proceeded to the dining area. On top of the dining table, she saw the scattered contents of a shoulder bag. Moments later, Biong came out from the room and proceeded to the front door to remove the chain lock; asked the keys from the housemaid and it was only then that the main door was opened. Biong noticed a stone in front of the broken glass of the door and requested Capt. Bartolome to go inside the servant's quarters as he doubted the housemaids' claim that they heard nothing unusual. Using the handle of his gun, Biong broke the remaining glass of the door panel. Bartolome then came out of the room and told Biong that he can hear the sound of the glass being broken. At the garage, Biong also noticed same marks on the hood of the car. On the following day, at around 12:00 noon, Biong arrived in her house together with the Vizconde housemaids. When Biong was preparing to take a bath, she saw him remove from his pocket the things she also saw from Vizconde's residence, to wit: calling cards, driver's license, ATM card, a crossed check worth P80,000.00, earrings, a ring, bracelet, necklace, and the watch he took from the jewelry box inside the room After the father of Gatchalian talked to Colonel Pureza. People vs.00 at a pawnshop in front of Chow-Chow restaurant in Santos Avenue. which the latter claimed to have been given to him by the person who called him up in the early morning of June 30. 1991. xxx xxx xxx . alibi deserves scant consideration in the face of positive identification especially so where the claim of alibi is supported mainly by friends and relatives (People vs. she saw Biong took from his locker at the Parañaque Police Station an imported brown leather jacket. after a careful and thorough evaluation of the records. 181 SCRA 316 and a long line of cases). The DOJ Panel then weighed these inculpatory evidence against the exculpatory evidence of petitioners. Parañaque. Gatchalian's defense of alibi was not corroborated by Lejano. Apolonia. Alibi cannot prevail over the positive identification made by a prosecution witness. 233 SCRA 687 [1994]). whom he claimed was with him watching video tapes at the Syyap residence. The next day. believes that they cannot outweigh the evidence submitted by the complainant. 235 SCRA 124 [1994]. Since then. the latter called up and instructed Biong to bring Gatchalian to him (Colonel Pureza) and that was the last thing she remembered regarding this case. like alibi. Similarly. She observed that Biong seemed not interested in pursuing the investigation of the Vizconde case. Indeed. she was surprised that Biong halted the investigation when Gatchalian was profusely sweating while being interrogated.of the Vizcondes. In fact." respondent Lejano proffered no evidence to substantiate his claim of alibi. Onpaid. the panel. Other than claiming that he "was not and could not have been at or near the area of the Vizconde residence at the time of the alleged commission of the crime. Biong has been wearing said jacket until they broke up sometime in 1993. Verily. It ruled:30 xxx xxx xxx The voluminous number of exhibits submitted by respondent Webb to support his defense of denial and alibi notwithstanding.000. denial. denial is a self-serving negative which cannot be given greater evidentiary weight than the declaration of a credible witness who testified on affirmative matters (People vs. Carizo. Surprisingly. 233 SCRA 62 [1994]). These jewelry items were later pawned by Biong for P20. Lucas. when Biong and this group picked up Mike Gatchalian and brought him to the Parañaque Police Station. is weak and becomes even more weaker when arrayed against the positive identification by the witness for the prosecution (People vs. In the case at bar. not on evidence establishing absolute certainty of guilt.On the other hand. the issuance of receipt evidencing the purchase of a bicycle in California is no conclusive proof that the name appearing thereon was the actual buyer of the merchandise. If the evidence on hand already yields a probable cause. the investigator need not hold a clarificatory hearing. Given these conflicting pieces of evidence of the NBI and the petitioners. . Considering the low quantum and quality of evidence needed to support a finding of probable cause. there is no showing that he could not have been in the country on the dates above mentioned. 31 while probable cause demands more than "bare suspicion. neither on evidence establishing guilt beyond reasonable doubt and definitely. While respondent Webb may have submitted proof tending to show that he was issued a California driver's license on June 14. we also hold that the DOJ Panel did not. The decision to call witnesses for clarificatory questions is addressed to the sound discretion of the investigator and the investigator alone. The material dates in this case are June 29 and 30. 1992 and found the same wanting to exonerate him of the offense charged. 1991. we hold that the DOJ Panel did not gravely abuse its discretion when it found probable cause against the petitioners. II . the DOJ Panel correctly adjudged that enough evidence had been adduced to establish probable cause and clarificatory hearing was unnecessary. 1991. As well put in Brinegar v. Neither do we find merit in the allegation that respondent Webb personally bought a bicycle on June 30. 1991 in California in view of his positive identification by Alfaro and the two (2) househelps of the Webb family who testified that he was here in the country on said dates. 1991 to October 26. United States. Preliminary investigation is not a part of trial and it is only in a trial where an accused can demand the full exercise of his rights. probable cause merely implies probability of guilt and should be determined in a summary manner. It is not a pronouncement of guilt. Probable cause need not be based on clear and convincing evidence of guilt. respondent Webb seeks to enhance the acceptability of his alibi in the form of documents tending to show that he was thousands of miles away when the incident occurred. gravely abuse its discretion in refusing to call the NBI witnesses for clarificatory questions." it requires "less than evidence which would justify . conviction. To repeat. Additionally. A finding of probable cause needs only to rest on evidence showing that more likely than not a crime has been committed and was committed by the suspects. We have carefully deliberated and argued on the evidence submitted by respondent Webb in support of his absence from the country since March 9. such as the right to confront and cross-examine his accusers to establish his innocence." A finding of probable cause merely binds over the suspect to stand trial. . (2) the failure of said judges to issue orders of arrest. section 6 of Rule 112 simply provides that "upon filing of an information. 4 and 5 of Rule 126 provide: xxx xxx xxx .We now come to the charge of petitioners that respondent Judge Raul de Leon and." In contrast. Section 2 of Article III of the Constitution provides: Sec. the Regional Trial Court may issue a warrant for the arrest of the accused. Thus. and (4) that even Gerardo Biong who was included in the Information as a mere accessory had a "NO BAIL" recommendation by the DOJ Panel. in arrest cases there must be probable cause that a crime has been committed and that the person to be arrested committed it. our Rules of Court do not provide for a similar procedure to be followed in the issuance of warrants of arrest and search warrants." Worthy to note. respondent Judge Amelita Tolentino issued warrants of arrest against them without conducting the required preliminary examination. In search cases. (3) the records submitted to the trial court were incomplete and insufficient from which to base a finding of probable cause. The aforequoted provision deals with the requirements of probable cause both with respect to issuance of warrants of arrest or search warrants. The issuance of a warrant of arrest interferes with individual liberty and is regulated by no less than the fundamental law of the land. and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable. and that the items will be found in the place to be searched. two conclusions must be supported by substantial evidence: that the items sought are in fact seizable by virtue of being connected with criminal activity. The similarities and differences of their requirements ought to be educational. Sections 3. and thus one can exist without the other. The right of the people to be secure in their persons. thus: 32 "It is generally assumed that the same quantum of evidence is required whether one is concerned with probable cause to arrest or probable cause to search. 2. Petitioners support their stance by highlighting the following facts: (1) the issuance of warrants of arrest in a matter of few hours. the procedure to be followed in issuing search warrants is more defined. It is not also necessary that a particular person be implicated. houses. But each requires a showing of probabilities as to somewhat different facts and circumstances. With respect to warrants of arrest. and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce and particularly describing the place to be searched and the persons or things to be seized. later. which of course can exist without any showing that evidence of the crime will be found at premises under that person's control. papers. Some of them are pointed out by Professors LaFave and Israel. By comparison. Petitioners postulate that it was impossible to conduct a "searching examination of witnesses and evaluation of the documents" on the part of said judges. — If the judge is thereupon satisfied of the facts upon which the application is based.Sec. calls for an interpretation of the constitutional provision on the issuance of warrants of arrest. The addition of the word "personally" after the word "determined" and the deletion of the grant of authority by the 1973 Constitution to issue warrants to "other responsible officers as may be authorized by law. record. personally examine in the form of searching questions and answers. 33 thus: xxx xxx xxx The second issue. and particularly describing the place to be searched and the persons or things to be seized. Issuance and form of search warrant. — The judge must. which must be substantially in the form prescribed by these Rules. — A search warrant shall not issue but upon probable cause in connection with one specific offense to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce. and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce. Examination of complainant. Sec. Sec. he must issue the warrant. 5. This is not an accurate interpretation. before issuing the warrant. in writing and under oath the complainant and any witnesses he may produce on facts personally known to them and attach to the record their sworn statements together with any affidavits submitted. papers and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable. . Makasiar. 3. 4. The right of the people to be secure in their persons. raised by Beltran. and particularly describing the place to be searched and the things to be seized. Requisites for issuing search warrant. houses." has apparently convinced petitioner Beltran that the Constitution now requires the judge to personally examine the complainant and his witnesses in his determination of probable cause for the issuance of warrants of arrest. 2. or that there is probable cause to believe that they exist. The pertinent provision reads: Art. Sec. III. We discussed the difference in the Procedure of issuing warrants of arrest and search warrants in Soliven vs. Our Allado ruling is predicated on the utter failure of the evidence to show the existence of probable cause. the DOJ Panel submitted to the trial court its 26-page report. the judge is not required to personally examine the complainant and his witnesses. Sound policy dictates this procedure. Apparently. They also reject petitioners' contention that a judge must first issue an order of arrest before issuing a warrant of arrest. They just personally review the initial determination of the prosecutor finding a probable cause to see if it is supported by substantial evidence. Not even the corpus delicti of the crime was established by the evidence of the prosecution in that case. There is no law or rule requiring the issuance of an Order of Arrest prior to a warrant of arrest. In the case at bar.What the Constitution underscores is the exclusive and personal responsibility of the issuing judge to satisfy himself of the existence of probable cause. and our case law 34 repudiate the submission of petitioners that respondent judges should have conducted "searching examination of witnesses" before issuing warrants of arrest against them. the Rules of Court. the painstaking recital and analysis of the parties' evidence made in the DOJ Panel Report satisfied both judges that there is probable cause to issue warrants of arrest against petitioners. judges merely determinepersonally the probability. he may disregard the fiscal's report and require the submission of supporting affidavits of witnesses to aid him in arriving at a conclusions as to the existence of probable cause. The sufficiency of the review process cannot be measured by merely counting minutes and hours. judges do not conduct a de novo hearing to determine the existence of probable cause. or (2) if on the basis thereof he finds no probable cause. Diokno 37 is misplaced. not the certainty of guilt of an accused. In doing so. the two (2) sworn statements of Alfaro and the sworn statements of Carlos Cristobal and Lolita Birrer 35 as well as the counter-affidavits of the petitioners. Again. Following established doctrine and procedure. issue a warrant. the Constitution. otherwise judges would be unduly laden with the preliminary examination and investigation of criminal complaints instead of concentrating on hearing and deciding cases filed before their courts. Clearly then. Given the clear insufficiency of the evidence on record. we stress that before issuing warrants of arrest. we stressed the necessity for the trial judge to make a further personal examination of the complainant and his witnesses to reach a correct assessment of the existence or non-existence of . on the basis thereof. he shall: (1) personally evaluate the report and the documents submitted by the fiscal regarding the existence of probable cause and. The fact that it took the respondent judges a few hours to review and affirm the probable cause determination of the DOJ Panel does not mean they made no personal evaluation of the evidence attached to the records of the case. In satisfying himself of the existence of probable cause for the issuance of a warrant of arrest. 36 Petitioners' reliance on the case of Allado vs. his "Counter-Affidavit" on July 14.. The records will show that the DOJ Panel did not conduct the preliminary investigation with indecent haste. It was therefore unnecessary for the respondent judges to take the further step of examining ex parte the complainant and their witnesses with searching questions. 4. Mercader. viz. Petition) and a "Motion to Resolve" on August 1. The corpus delicti of the crime is a given fact. Petitioner Webb actively participated in the preliminary investigation by appearing in the initial hearing held on June 30. Petitioners were afforded all the opportunities to be heard. 1995 (pp. rests on a different factual setting. We reject these contentions. petitioner Webb filed a "Petition for Injunction. without ruling on the admissibility and credence of the two (2) conflicting and inconsistent sworn statements of the principal witness. to produce the first sworn statement of Alfaro for submission to the DOJ Panel. The alibi defense of petitioner Webb is also disputed by sworn statements of their former maids. Jr. Petition) The said court dismissed the petition after Mercader produced and submitted to the DOJ Panel the first sworn statement of Alfaro. Jr. III Petitioners also complain about the denial of their constitutional right to due process and violation of their right to an impartial investigation. 1995 (p. "L-1" and "L-2" of the Supplemental Petition dated August 14. They also assail the prejudicial publicity that attended their preliminary investigation. Arturo L.probable cause before issuing warrants of arrest against the accused. 1995. Certiorari. (Attached hereto is a copy of the order of . 6. and by filing a "Motion for Production and Examination of Evidence and Documents" on June 27.: Again. 1995 (p. (p. 1995). Alfaro. Petition). 1995 (p. 1995 and in the second hearing on July 14. a "Reply to the compliance and Comment/Manifestation to the Motion for Production and Examination of Evidence" on July 5. Petition). 4. There is an eyewitness account of the imputed crime given by Alfaro. Numerous letter-requests were also sent by the petitioner Webb's counsel to the DOJ Panel requesting the latter to furnish him a copy of the reports prepared by the FBI concerning the petitioner's whereabouts during the material period (Annexes "L". however. 1995. The case at bar. a "Comment and Manifestation" on July 7. Petitioners were given fair opportunity to prove lack of probable cause against them. They decry their alleged hasty and malicious prosecution by the NBI and the DOJ Panel. there is no merit in this contention. Branch 63 of Makati in order to compel said Atty. As priorly discussed. The fairness of this opportunity is well stressed in the Consolidated Comment of the Solicitor General. In fact. 6-7. not satisfied with the decision of the DOJ Panel not to issuesubpoena duces tecum to Atty. Prohibition and Mandamus" with the Regional Trial Court. Mercader. Petition). the various types of evidence extant in the records of the case provide substantial basis for a finding of probable cause against the petitioner. 6. Verily. Exceptions. 1995. dated June 25. During the period of twentyseven (27) days. twenty-seven (27) days elapsed before the resolution was promulgated. This directly disputes the allegation of the petitioners that the resolution was done with indecent haste in violation of the rights of the petitioners. (p.Judge Ruben A. If the appellant is arraigned during the pendency of the appeal.g. the petitioners were free to adduce and present additional evidence before the DOJ Panel. 8. (p. 7. Branch 63 dated July 28. 1995. Notwithstanding the showing of manifest error or grave abuse of discretion. 4. the panel even announced that any party may submit additional evidence before the resolution of the case. Petition) From the time the panel declared the termination of the preliminary investigation on July 14. — No appeal may be taken from a resolution of the Chief State Prosecutor/Regional State Prosecutor/Provincial or City Prosecutor finding probable causeexcept upon showing of manifest error or grave abuse of discretion. Non-Appealable Cases. RTC-Makati. comparison of the photo-copies of the submitted documents with the originals on July 17. 1995. 1995. This notwithstanding the directive of Section 3(f) Rule 112 of the Revised Rules of Court that the investigating officer shall resolve the case within ten (10) days from the termination of the preliminary investigation. and the information eventually filed in the Regional Trial Court of Parañaque on August 10. e. series of 1993.: Sec. The DOJ Panel precisely allowed the parties to adduce more evidence in their behalf and for the panel to study the evidence submitted more fully. 1995) marked as Annex "F. viz. . 1995. Mendiola. no appeal shall be entertained where the appellant had already been arraigned. Petitioners cannot also assail as premature the filing of the Information in court against them for rape with homicide on the ground that they still have the right to appeal the adverse resolution of the DOJ Panel to the Secretary of Justice. 1993. petitioners cannot now assert that they were denied due process during the conduct of the preliminary investigation simply because the DOJ Panel promulgated the adverse resolution and filed the Information in court against them. 17 Resolution) In addition to these. 223. We quote its pertinent sections. (p. Petition) The panel even entertained the "Response" submitted by accused Miguel Rodriguez on July 18. The filing of said Information is in accord with Department of Justice Order No. the panel continued to conduct further proceedings. said appeal shall be dismissed motu propio by the Secretary of Justice." It must also be pointed out that despite the declaration by the DOJ Panel that the preliminary investigation was to be terminated after the hearing held on July 14. if qualified as determined in this Act and by the Department. however. The period shall be interrupted only by the filing of a motion for reconsideration within ten (10) days from receipt of the resolution and shall continue to run from the time the resolution denying the motion shall have been received by the movant or his counsel. State Witness. An accused discharged from an information or criminal complaint by the court in order that he may be a State Witness pursuant to Sections . (d) his testimony can be substantially corroborated on its material points. 6981. 10. Alfaro qualified under its Section 10. The non-inclusion of Alfaro is anchored on Republic Act No. and (f) he has not at anytime been convicted of any crime involving moral turpitude. (b) there is absolute necessity for his testimony. can apply and. the said DOJ Order No. shall not hold the filing of the information in court.C. Sec. (e) he does not appear to be most guilty. entitled "An Act Providing For A Witness Protection. — Any person who has participated in the commission of a crime and desires to a witness for the State.An appeal/motion for reinvestigation from a resolution finding probable cause. Next. (Emphasis supplied) Without doubt then. — The appeal must be filed within a period of fifteen (15) days from receipt of the questioned resolution by the party or his counsel. or its equivalent under special laws. Security And Benefit Program And For Other Purposes" enacted on April 24. petitioners fault the DOJ Panel for not including Alfaro in the Information considering her alleged conspiratorial participation in the crime of rape with homicide. (c) there is no other direct evidence available for the proper prosecution of the offense committed. which provides: xxx xxx xxx Sec.P. 223 allows the filing of an Information in court after the consummation of the preliminary investigation even if the accused can still exercise the right to seek a review of the prosecutor's recommendation with the Secretary of Justice. 2. shall be admitted into the Program whenever the following circumstances are present: (a) the offense in which his testimony will be used is a grave felony as defined under the R. 1991. When to appeal. We thus hold that it is not constitutionally impermissible for Congress to enact R. Section 12 of the said law mandates her non-inclusion in the criminal Complaint or Information. . the court. the sole prerogative of courts and beyond executive and legislative interference. It is urged that they constitute ". 12. Nothing in this Act shall prevent the discharge of an accused so that he can be used as a Witness under Rule 119 of the Revised Rules of Court.A. what and whom to charge. the prosecution of crimes appertains to the executive department of government whose principal power and responsibility is to see that our laws are faithfully executed. In truth. Moreover. is given the power to discharge a state witness only because it has already acquired jurisdiction over the crime and the accused. — The certification of admission into the Program by the Department shall be given full faith and credit by the provincial or city prosecutor who is required NOT TO INCLUDE THE WITNESS IN THE CRIMINAL COMPLAINT OR INFORMATION and if included therein." The argument is based on Section 9. Effect of Admission of a State Witness into the Program. The discharge of an accused is part of the exercise of jurisdiction but is not a recognition of an inherent judicial function. to petition the court for his discharge in order that he can be utilized as a State Witness.9 and 10 of Rule 119 of the Revised Rules of Court may upon his petition be admitted to the Program if he complies with the other requirements of this Act. an intrusion into judicial prerogative for it is only the court which has the power under the Rules on Criminal Procedure to discharge an accused as a state witness. the Rules of Court have never been interpreted to . Rule 119 38which gives the court the prerogative to approve the discharge of an accused to be a state witness. No. The right to prosecute vests the prosecutor with a wide range of discretion — the discretion of whether. The court shall order the discharge and exclusion of the said accused from the information. Under this provision. A necessary component of this power to execute our laws is the right to prosecute their violators. The validity of these provisions is challenged by petitioner Webb. Admission into the Program shall entitle such State Witness to immunity from criminal prosecution for the offense or offenses in which his testimony will be given or used and all the rights and benefits provided under Section 8 hereof. 39 Section 9 of Rule 119 does not support the proposition that the power to choose who shall be a state witness is an inherent judicial prerogative. Petitioner's argument lacks appeal for it lies on the faulty assumption that the decision whom to prosecute is a judicial function. the exercise of which depends on a smorgasbord of factors which are best appreciated by prosecutors. 6981 vesting in the Department of Justice the power to determine who can qualify as a witness in the program and who shall be granted immunity from prosecution. Upon qualification of Alfaro to the program. . thus: xxx xxx xxx Sec. petitioners charge the NBI with violating their right to discovery proceedings during their preliminary investigation by suppressing the April 28. For a more effective administration of criminal justice. it is a substantive right. 6981 is one of the much sought penal reform laws to help government in its uphill fight against crime. The argument is novel in this jurisdiction and as it urges an expansive reading of the rights of persons under preliminary investigation it deserves serious consideration. for fear of reprisal and economic dislocation. and hence formally at risk of incarceration or some other penalty. 42 But these provisions apply after the filing of the Complaint or Information in court and the rights are accorded to the accused to assist them to make an intelligent plea at arraignment and to prepare for trial. No. liberty and property. is not a mere formal or technical right. 45 "the right to have a preliminary investigation conducted before being bound over for trial for a criminal offense. In the case at bar. Instead. 6981 cannot therefore succeed." A preliminary investigation should therefore be scrupulously conducted so that the constitutional right to liberty of a potential . our Rules on Criminal Procedure do not expressly provide for discovery proceedings during the preliminary investigation stage of a criminal proceeding. usually refuse to appear and testify in the investigation/prosecution of criminal complaints/cases. 1995 original copy of the sworn statement of Alfaro and the FBI Report.: "Witnesses. negate its use by a person under investigation when indispensable to protect his constitutional right to life. the object of a preliminary investigation is to determine the probability that the suspect committed a crime. 44 As this Court emphasized in Rolito Go vs. liberty and property to real risk of loss or diminution.A. No. a non-bailable offense when the evidence of guilt is strong. Rule 112 installed a quasi-judicial type of preliminary investigation conducted by one whose high duty is to be fair and impartial. the risk to the liberty of petitioners cannot be understated for they are charged with the crime of rape with homicide. Because of such refusal. criminal complaints/cases have been dismissed for insufficiency and/or lack of evidence. our Rules have discarded the pure inquisitorial system of preliminary investigation. To start with. there was a necessity to pass a law protecting witnesses and granting them certain rights and benefits to ensure their appearance in investigative bodies/courts.A. one certain cause of which is the reticence of witnesses to testify. Further. viz. The rationale for the law is well put by the Department of Justice. Court of Appeals.be beyond change by legislation designed to improve the administration of our justice system. Preliminary investigation is not too early a stage to guard against any significant erosion of the constitutional right to due process of a potential accused. 43 This failure to provide discovery procedure during preliminary investigation does not." 40 Petitioner Webb's challenge to the validity of R. Attuned to the times. R. however. As aforediscussed. We hold that the finding of a probable cause by itself subjects the suspect's life. 41 Sections 10 and 11 of Rule 117 do provide an accused the right to move for a bill of particulars and for production or inspection of material evidence in possession of the prosecution. Fortunately. It is also implicit in section (3) (a) of Rule 112 which requires during the preliminary investigation the filing of a sworn complaint. .accused can be protected from any material damage. prosecutors should not treat litigation like a game of poker where surprises can be sprung and where gain by guile is not punished. the Court is not without enlightened precedents from other jurisdictions. submitted a photocopy of Alfaro's April 28. on July 4. . were able to obtain a copy of the original from Atty. unquestionable materiality to the issue of their probable guilt. the DOJ Panel accepted the original of Alfaro's April 28. 1995 could have resulted in the reasonable likelihood that the DOJ Panel would not have found probable cause. state the known address of the respondent and be accompanied by affidavits of the complainant and his witnesses as well as other supporting documents . 51 Petitioners thus had the fair chance to explain to the DOJ Panel then still conducting their preliminary investigation the exculpatory aspects of this sworn statement. evolved jurisprudence firming up the prosecutor's duty to disclose to the defense exculpatory evidence in its possession. the NBI. 52 On the other hand. It explained it cannot produce the original as it had been lost. To be sure. . But given the right of petitioners to compel the NBI to disclose exculpatory evidence in their favor. 1995 sworn statement as a part of their evidence. 1995 sworn statement of Alfaro and the FBI Report during their preliminary investigation considering their exculpatory character. upon request of petitioners. the NBI. 951099. the DOJ Panel still found probable cause to charge them despite the alleged material discrepancies between the first and second sworn statements of Alfaro. petitioners. 50 As petitioners admit. and hence. . this finding of probable cause cannot be struck down as done with grave abuse of discretion. Unfortunately for petitioners." Its progeny is the 1935 case ofMooney v. 1995. For reasons we have expounded. We uphold the legal basis of the right of petitioners to demand from their prosecutor. irrespective of the good faith or bad faith of the prosecution." In laying down this rule. . the original copy of the April 28. Arturo Mercader in the course of the proceedings in Civil Case No. 1995 sworn statement. the FBI Report while corroborative of the alibi of petitioner Webb cannot by itself reverse the probable cause finding of the DOJ Panel in light of the totality of evidence presented by the NBI. 1995. Maryland 46 the United States Supreme Court held that "suppression of evidence favorable to an accused upon request violates due process where the evidence is material to guilt or punishment. on July 28. Thus." Indeed. which shall ". The right is rooted on the constitutional protection of due process which we rule to be operational even during the preliminary investigation of a potential accused. In the 1963 watershed case of Brady v. Holohan 47 which laid down the proposition that a prosecutor's intentional use of perjured testimony to procure conviction violates due process. we are not prepared to rule that the initial nonproduction of the original sworn statement of Alfaro dated April 28. 48 The rationale is well put by Justice Brennan in Brady 49 — "society wins not only when the guilty are convicted but when criminal trials are fair. From this unbroken. petitioners raise the effect of prejudicial publicity on their right to due process while undergoing preliminary investigation. The process of pinpointing where the balance should be struck has divided men of learning as the balance keeps moving either on the side of liberty or on the side of order as the tumult of the time and the welfare of the people dictate. v. their lawyers and their sympathizers — have participated in this media blitz. petitioners touch on some of the most problematic areas in constitutional law where the conflicting demands of freedom of speech and of the press. media coverage of trials of sensational cases cannot be avoided and oftentimes. even the principal actors in the case — the NBI. hostility. or decisions based on secret bias or partiality. Our daily diet of facts and fiction about the case continues unabated even today. The dance of balance is a difficult act to follow. To work effectively. we come to the argument of petitioner that the DOJ Panel lost its impartiality due to the prejudicial publicity waged in the press and broadcast media by the NBI. In floating this issue. Inc." Offutt v. few cases can match the high volume and high velocity of publicity that attended the preliminary investigation of the case at bar. In democratic settings. 99 L Ed 11. its excessiveness has been aggravated by kinetic developments in the telecommunications industry. thus giving assurance that the proceedings were conducted fairly to all concerned and discouraging perjury. In the seminal case of Richmond Newspapers. and emotion. We find no procedural impediment to its early invocation considering the substantial risk to their liberty while undergoing a preliminary investigation. a community reaction of outrage and public protest often follows. For sure. the significant community therapeutic value of public trials was recognized: when a shocking crime occurs. Again. In addition. and an accused's right to a fair and impartial trial collide and compete for prioritization.Finally. 53 it was wisely held: xxx xxx xxx (a) The historical evidence of the evolution of the criminal trial in Anglo-American justice demonstrates conclusively that at the time this Nation's organic laws were adopted. which can best be provided by allowing people to observe such process. and thereafter the open processes of justice serve an important prophylactic purpose. 75 S Ct 11. it must be concluded that a . United States. supported by reasons as valid today as in centuries past. criminal trials both here and in England had long been presumptively open. the misconduct of participants. the public's right to information. The possibility of media abuses and their threat to a fair trial notwithstanding. the respondents. Virginia. Indeed. it is important that society's criminal process "satisfy the appearance of justice. uncontradicted history. providing an outlet for community concern. Commentators still bombard the public with views not too many of which are sober and sublime. criminal trials cannot be completely closed to the press and the public. 14. 348 US 11. A trial courtroom is a public place where the people generally — and representatives of the media — have a right to be present. various fundamental rights. and where their presence historically has been thought to enhance the integrity and quality of what takes place. the DOJ Panel is composed of an Assistant Chief State Prosecutor and Senior State Prosecutors. the First Amendment can be read as protecting the right of everyone to attend trials so as to give meaning to those explicit guarantees. of the publicity that attended the investigation of petitioners fatally infected the fairness and impartiality of the DOJ Panel. (b) The freedoms of speech. in the context of trials. e. et al. by the barrage of publicity. 80 S Ct 1038. which people have exercised for centuries. To be sure. we find nothing in the records that will prove that the tone and content. without the freedom to attend such trials. Cf. Thus. (c) Even though the Constitution contains no provision which by its terms guarantees to the public the right to attend criminal trials. not simply that they might be.presumption of openness inheres in the very nature of a criminal trial under this Nation's system of justice. their 26-page Resolution carries no indubitable indicia of bias for it does not appear that they considered any extra-record evidence except evidence properly adduced by the parties. et al. Indeed. Moreover. In guaranteeing freedoms such as those of speech and press. Be that as it may. important aspects of freedom of speech and of the press could be eviscerated. expressly guaranteed by the First Amendment. not expressly guaranteed. the First Amendment right to receive information and ideas means. Alejandro. share a common core purpose of assuring freedom of communication on matters relating to the functioning of government. for these are basically unbeknown and beyond knowing. United States. we recognize that pervasive and prejudicial publicity under certain circumstances can deprive an accused of his due process right to fair trial. Petitioners cannot just rely on the subliminal effects of publicity on the sense of fairness of the DOJ Panel. In the case at bar.. 54 we held that to warrant a finding of prejudicial publicity there must be allegation and proof that the judges have been unduly influenced.g. that the guarantees of speech and press. The length of time the investigation was conducted . in Martelino. press. and assembly.. Their long experience in criminal investigation is a factor to consider in determining whether they can easily be blinded by the klieg lights of publicity. the right of assembly is also relevant. vs. standing alone. Levine v. have been recognized as indispensable to the enjoyment of enumerated rights. 362 US 610. prohibit government from summarily closing courtroom doors which had long been open to the public at the time the First Amendment was adopted. The right to attend criminal trials is implicit in the guarantees of the First Amendment. 4 L Ed 2d 989. having been regarded not only as an independent right but also as a catalyst to augment the free exercise of the other First Amendment rights with which it was deliberately linked by the draftsmen.. No. Branch XIV. the judiciary always stands as a silent accused. too much of its heat can bring to flame an accused's right to fair trial. and NERO DESAMPARADO alias TOTO DESAMPARADO alias WALDAS. we note. 81389 February 21. J. JR. At no instance.respondents.. G. the business of the judiciary is to assure fulfillment of the promise that justice shall be done and is done — and that is the only way for the judiciary to get an acquittal from the bar of public opinion. SO ORDERED. Florido for private respondents. Without imposing on the trial judge the difficult task of supervising every specie of speech relating to the case at bar. did petitioners seek the disqualification of any member of the DOJ Panel on the ground of bias resulting from their bombardment of prejudicial publicity. We stress that probable cause is not synonymous with guilt and while the light of publicity may be a good disinfectant of unfairness. The Solicitor General for petitioner. 55 The Court reminds judges that our ability to dispense impartial justice is an issue in every trial and in every criminal prosecution. DACUDAO. and REY CHRISTOPHER PACLIBAR. Costs against petitioners. It all remains to state that the Vizconde case will move to a more critical stage as petitioners will now have to undergo trial on the merits.R.: The question presented for resolution in this petition for certiorari and prohibition is whether or not the prosecution was deprived of procedural due process on account of the grant of bail to the accused without any hearing on the motion for bail. HON. it behooves her to be reminded of the duty of a trial judge in high profile criminal cases to control publicity prejudicial to the fair administration of justice. . Bernardito A. the petitions are dismissed for lack of showing of grave abuse of discretion on the part of the respondents. petitioner. More than convicting the guilty and acquitting the innocent. GUTIERREZ. 1989 PEOPLE OF THE PHILIPPINES. vs. Presiding Judge of the Regional Trial Court of Cebu. RENATO C.despite its summary nature and the generosity with which they accommodated the discovery motions of petitioners speak well of their fairness. The facts have been summarized as follows. IN VIEW WHEREOF. against accused Rey Christopher Paclibar and Nero Desamparado for the death of Cesarlito Nolasco. Upon arraignment. 1987. From the foregoing Order. The case was docketed as Criminal Case No. which constitute the essential evidence (so far) of the prosecution in this case. respondent Judge summarily issued the following Order: ORDER Considering the motion for bail and the opposition thereto. this Court hereby resolves to grant the motion for bail presented by Atty. 4. an Information for Murder with the qualifying circumstances of treachery and evident premeditation was filed before the Regional Trial Court of Cebu. furnishing the Provincial Fiscal of Cebu with a copy thereof. 1987. as follows: WHEREFORE. 3. it is respectfully prayed of this Honorable Court to: 1. on the basis of the complaint at bar and the sworn statement of Patrolman Elpidio Desquitado.1.000. Bernardito A. private prosecutor Alex R. CBU-11463. On August 11.00. accused Rey Christopher Paclibar filed a motion for bail. SO ORDERED. Tadeo Abello and Romeo Torrizo all of the Integrated National Police. and without conducting a hearing in the application for bail. HENCE. On September 29. On September 18. Monteclar filed a motion for reconsideration alleging that "THE GRANTING OF BAIL TO THE ACCUSED WITHOUT A HEARING IS VIOLATIVE OF PROCEDURAL DUE PROCESS. 2. in the light of the foregoing. 1987. 2. Florida and to this end hereby fixes the bailbond for the accused Rey Christopher Paclibar at P50. . accused Rey Christopher Paclibar entered a plea of 'not guilty' to the offense charged. presided by respondent Judge Renato C. and. Branch XIV. Reconsider its order dated 29th September l987 granting bail to the accused Rey Christopher Paclibar and set it aside for being null and void. Dacudao. To order the immediate hearing of the Motion to Bail to determine whether the evidence for the prosecution would warrant the denial of bail. Bantayan (Cebu) Police Station. NULL AND VOID and thus praying. M. Desquitado. Attys. as this evidence consists simply of the sworn statement of Pat. Cebu. Petition) . pending the presentation by the Prosecution of evidence. witnesses (sic) the slaying of the deceased Lito Nolasco by the accused Rey Christopher Paclibar. Acting on the motion for reconsideration and the opposition thereto filed by accused Rey Christopher Paclibar.'3. 1987 which was predicated upon the postulate that the Prosecution evidence thus far attached to the records does not make out a very strong case for murder. 1987 the following order: ORDER 'The Court hereby resolves to hold in abeyance its resolution on the Prosecution's motion for reconsideration of the Court's order dated September 29. The accused is similarly notified. To recommit the accused to jail (CPDRC) immediately until such time the Honorable Court shall have resolved the Motion to Bail. and that therefore the accused should not have been admitted to bail. 1987 granting bail to the accused. 'In the meantime reset the continuation of the hearing of this case on December 16. none of whom.' 5. the Court sees no reason to reconsider its order of September 29. Tadeo Abello and Romeo Torrizo of the INP. Rollo) The petitioner now advances the following issue: that "Respondent Judge acted without jurisdiction and with grave abuse of discretion in refusing to recommit the accused Rey Christopher Paclibar to jail during the pendency of the hearing of the motion to bail. in support of its proposition that the evidence of guilt against the accused in this case is strong. 95-98. Fiscal Napoleon Alburo. Alex Monteclar and Bernardito Florida as well as Atty. Unless and until the prosecution adduces the requisite evidence. respondent judge issued on November 20.' (pp. 'SO ORDERED. 6. Bantayan. Notify the bondsman of the accused." (p. 'The Court hereby gives the prosecution five (5) days from receipt of this order within which to submit a pleading or motion for reconsideration of the ruling of the Court. Amado Olis are all notified of this order in open court. 1987 at 2:30 P. by their own account. which it promised to present. San Diego (26 SCRA 522 [1968]). To appreciate the strength or weakness of the evidence of guilt. must be considered null and void. In the interest of a speedy determination of the case. the prosecution must be consulted or heard.Before resolving this issue. whether the prosecution was deprived of procedural due process. The court granted bail on the sole basis of the complaint and the affidavits of three policemen. Hence. the court's order granting or refusing bail must contain a summary of the evidence for the prosecution followed by its conclusion whether of not the evidence of guilt is strong. as it turned out later. Whether or not the evidence of guilt is strong for each individual accused still has to be established unless the prosecution submits the issue on whatever it has already presented. The answer is in the affirmative. and the order of the court granting bail should be considered void on that ground. however. Thus. otherwise. It is equally entitled as the accused to due process. At the very least. Whatever the court possessed at the time it issued the questioned ruling was intended only for prima facie determining whether or not there is sufficient ground to engender a wellfounded belief that the crime was committed and pinpointing the persons who probably committed it. the Provincial Fiscal himself. held: The question presented before us is. within a reasonable time. as in the criminal case involved in the instant special civil action. The court's discretion to grant bail in capital offenses must be exercised in the light of a summary of the evidence presented by the prosecution. 1968. We are of the considered opinion that whether the motion for bail of a defendant who is in custody for a capital offense be resolved in a summary proceeding or in the course of a regular trial the prosecution must be given an opportunity to present. the prosecution should be denied such an opportunity. and. granting bail to the . and considering the stand taken by the Office of the Solicitor General whom we asked to comment. in People v. having been issued in violation of procedural due process. all the evidence that it may desire to introduce before the court should resolve the motion for bail. this Court. instead of the private prosecutor with the conformity of one of the Assistant Provincial Fiscals of Cebu. 9 and 12. 9 and 12. If. The orders complained of dated October 7. the Solicitor General who appears in criminal cases or their incidents before the Supreme Court. The orders of October 7. without bothering to ask the prosecution for its conformity or comment. should have raised the issue before us. It is the Government's counsel. 1968. with the conformity of the Solicitor General. it would be uncontrolled and might be capricious or whimsical. over its strong objections. not one of whom apparently witnessed the killing. The respondent court acted irregularly in granting bail in a murder case without any hearing on the motion asking for it. with a warning to the private prosecutor and the Assistant Provincial Fiscal to follow the correct procedure in the future. we have decided to resolve this petition on its merits. there would be a violation of procedural due process. we must stress that a private prosecutor in a criminal case has no authority to act for the People of the Philippines before this Court. the weight of the evidence against him. 13 of the Constitution. In Art. this rule does not apply when special circumstances warrant immediate or more direct action. They only contain the court's conclusion that the evidence of guilt is not strong. The effort of the court to remedy the situation by conducting the required hearing after ordering the release of the accused may be a face-saving device for the Judge but it cannot serve the purpose of validating the void order granting bail and stamping an imprimatur of approval on a clearly irregular procedure.five defendants are defective in form and substance because they do not contain a summary of the evidence presented by the prosecution. the opportunity to correct the errors imputed to it. Rule 144." Bail is not a matter of right as regards persons charged with offenses punishable by reclusion perpetua when the evidence of guilt is strong. and whether or not the accused is under bond in other cases. 156 SCRA 529 [1987]) However. It contends that certiorari will not lie unless the inferior court has. v. 114 of the Rules of Criminal Procedure requires a hearing before resolving a motion for bail by persons charged with offenses punishable by reclusion perpetua where the prosecution may discharge its burden of showing that the evidence of guilt is strong. Sec. British Assurance Co. Among them are the nature and circumstances of the crime. Art. Rules of Court) It is highly doubtful if the trial court can appreciate these guidelines in an ex-parte determination where the Fiscal is neither present nor heard. Section 19 [1]. the defense interposes an objection to the petition on the ground that it is premature and therefore. it does not follow that all persons accused of any crime whatsoever now have an absolute right to bail. Intermediate Appellate Court. The case at bar. In the case at bar. is punishable by reclusion perpetua. 524. the orders complained of cannot. The defense counsel insists that the accused should be entitled to bail considering the abolition of the death penalty in the 1986 Constitution. 150 SCRA 520 [1989]). (Cebu Institute of Technology [CIT] v. (at p. A motion for reconsideration may be dispensed with in cases like this where execution has been ordered and the need for relief is extremely urgent (Phil. whether or not the accused is a fugitive from justice. He advances the argument that due to the abolition of the death penalty. character and reputation of the accused. 5. Thus. through a motion for reconsideration. 111. the petitioner is left with no plain. (Section 6. Ople. Inc. Art. speedy. "capital offenses" is replaced by the phrase "offenses punishable by reclusion perpetua. This is erroneous because although the Constitution states that the death penalty may not be imposed unless a law orders its imposition for heinous crimes (Constitution. the probability of the accused appearing at the trial.. In its comment. murder is no longer a capital offense being no longer punishable with death. III. and adequate remedy in the ordinary course of law considering . Sec. should be dismissed. be allowed to stand. Being thus defective in form and substance. The general rule is that a motion for reconsideration should first be availed of before a petition for certiorari and prohibition is filed. also on this ground. which is murder. Emphasis supplied) Certain guidelines in the fixing of a bailbond call for the presentation of evidence and reasonable opportunity for the prosecution to refute it. in the case of Gaspar v. No. 1991. The order granting bail is SET ASIDE and the accused is ordered recommitted to jail pending the hearing on the bail application. as amended. J. as amended. Moreover. Jaime Manuel y Ohide was charged with violation of Section 16. however. vs. The information against him reads: . 61. G. p. Briefly. Republic Act No.that the respondent court insists on the continuation of the hearing of the criminal case even while the accused is free to roam around." WHEREFORE. 99287 June 23. JR. RA 6425. Metro Manila dated February 25 and March 13. Rollo). National Capital Region at Pasig. MARTIN S. "no actual double jeopardy exists where the petitioner had not yet pleaded guilty to the offense. Sandiganbayan (144 SCRA 415 [1986]). 60. Rollo) Finally. petitioner. We note. respondents. that when the same was filed with the Regional Trial Court. The amendment or changing of an information prior to the plea of the accused is allowed there being no prejudice to him. MEDIALDEA. SO ORDERED. p. AND JAIME MANUEL. 1992 PEOPLE OF THE PHILIPPINES. Thus. and the recommended Information was also for homicide (Annex B. this Court held that. Jaime Manuel y Ohide" for violation of Section 16. 1990. there is an allegation that the accused is harassing. it was already an Information for murder.: This petition for certiorari seeks to reverse the decision and the order of the Regional Trial Court. the antecedent facts of the case are as follows: On August 24.R. Article 111. HON. Rollo). the defense contends that the Judge did not commit any error because actually the complaint in the Municipal Circuit Trial Court is for homicide only (Annex A. VILLARAMA. respectively in Criminal Case No. 87-88. 6425. threatening and coercing witnesses who are now afraid to testify. (pp. the petition is hereby GRANTED. The penalty prescribed in the said section is imprisonment ranging from six years and one day to twelve years and a fine ranging from six thousand to twelve thousand pesos. 1345-D entitled "People of the Philippines v.. " p. as pointed out by the prosecution. On January 30. 1991. there is nothing in the said provision which requires that the same be availed of prior to the presentation of the evidence for the prosecution. trial ensued. if the violation or failure involves a regulated drug. It is conceded though. the prosecutor filed his Opposition to the Request to Plead Guilty to a Lesser Offense (annex "E. Rollo) postponing the promulgation of decision to February 25. On November 21. the prosecution rested its case. custody and control 0. On February 21. counsel for private respondent verbally manifested in open court that private respondent was willing to change his former plea of "not guilty" to that of "guilty" to the lesser offense of violation of Section 17. 1991. that such is a . 6425. 15. 1990. Also.08 grams of Methamphetamin Hydrocloride (Shabu) wrapped with an aluminum foil. 1991. The accused simply wants to avail of Section 2. Rollo) During the arraignment. veterinarian. On February 20. and set the promulgation of decision on January 30." p. that the Rules on Criminal Procedure does not fix a specific period within which an accused is allowed to plead guilty to a lesser offense. Philippines. on the said date. dentist. respondent Judge postponed the promulgation of the decision to February 18. Fernando Fernandez of the PAO. (2) the possibility of conviction of private respondent of the crime originally charged was high because of the strong evidence of the prosecution. 20. manufacturer. (p. the private respondent filed his Request to Plead Guilty to a Lesser Offense. the above-named accused. the accused entered a plea of not guilty. 1991. p. 1991 to give private respondent another opportunity to secure the consent of the prosecutor.A. and (3) the valuable time which the court and the prosecutor had expended would be put to waste. 21. the respondent Judge issued an order (Annex "B. which is a regulated drug. as amended. Rollo) on the grounds that: (1) the prosecution already rested its case on November 21. without the corresponding license or prescription did then and there willfully. private respondent filed his Reply to Opposition with Leave of Court to Plead Guilty to a Lesser Offense (annex F. That same day. The said section provides a penalty ofimprisonment ranging from six months and one day to four years and a fine ranging from six hundred to four thousand pesos shall be imposed upon any pharmacist. on February 25. in the Municipality of San Juan. 1991. 1991. CONTRARY TO LAW. 1990. Rollo). 19. respondent Judge rendered a decision granting the accused's motion. respondent Judge issued another order (Annex "D. among other matters. 17. Rule 116 of the Rules.That on or about the 21st day of August. 1990. physician. 1991. 1991 to give private respondent further opportunity to secure the consent of the prosecutor. wholesaler who violates or fails to keep the records required under Section 25 of the Act. alleging therein. Subsequently. Rollo) directing private respondent to secure the consent of the prosecutor to the change of plea. Thereafter. Metro Manila. On January 9. As pointed out by Atty. No. paragraph 7 of the Revised Penal Code." p. unlawfully and feloniously have in his possession. to wit: It may well be appropriate at this time to state that the accused is not availing of the "voluntary plea of guilt" as a mitigating circumstance envisioned under Article 13. and within the jurisdiction of this Honorable Court. R. On February 18. hereby APPROVES and GRANTS the Motion at bar. as amended.08 grams of methamphetamine hydrochloride (shabu) subject matter of this case be confiscated and forfeited in favor of the Government and be turned over to the Dangerous Drugs Board Custodian. Article III. the prosecutor filed a Motion for Reconsideration of the aforestated decision but the same was denied in the order of March 13. possession of regulated drugs. speedy and inexpensive determination of every action and proceeding and also for humanitarian considerations." Is the fiscal the offended party? Moreover as the records show. Moreover. No. Pursuant to Section 20. to be disposed of according to law. WHEREFORE. In the service of his sentence. 1966) Let it be made of record however that the Court is not putting a premium on the change of heart of the accused in mid-stream. this Court. Article IV of Republic Act No. SO ORDERED. if only to apprise the public. as amended.waste of time on the part of the Office of the Provincial Prosecutor and of the Court. pp. such an admission of guilt by the accused indicates his submission to the law and a moral disposition on his part to reform. (Rollo. L-19091. 1991. finding the accused JAIME MANUEL Y CHIDE @ Manny guilty beyond reasonable-doubt of the crime of violation of Section 17. 6425. having in mind Section 2 of Rule 1 which provides that the rules shall be liberally construed in order to promote their object and to assist the parties in obtaining just.00) with subsidiary imprisonment in case of insolvency and to pay the costs. NBI. Rule 116 of the Rules should not be interpreted to the letter in "victimless crimes" such as this case. It would perhaps be in consonance with justice that a guideline be laid down by the said Office. 6425.000. to pay a fine of Two Thousand Pesos (P2. June 30. the Office of the Provincial Fiscal has not been very consistent on this "lesser offense plea" thing. Coronel. the accused shall be credited in full with the period of his preventive imprisonment. let the 0.R. which states: It is the considered view of this Court that Section 2. he is hereby sentenced to a straight prison term of two (2) years and one (1) day of prision correccional. the Court and the accused on when said consent is to be given by the fiscal as a matter of course and when it will be withheld. (Vide: People vs. G. For to leave the same undefined is in the . Republic Act No. nonetheless. which is more of a "social disease" case so to speak and in the light of (the) provision itself that "with the consent of the offended party and the fiscal. 24-25) Forthwith. shall be equivalent to a conviction of the offense charged for purposes of double jeopardy. 2. Ordinarily. Plea bargaining in criminal cases. The petition is meritorious. It usually involves the defendant's pleading guilty to a lesser offense or to only one or some of the counts of a multi-count indictment in return for a lighter sentence than that for the graver charge (ibid). not conducive to a "just. provides: Sec. WHETHER OR NOT RESPONDENT JUDGE ERRED IN CONVICTING PRIVATE RESPONDENT OF THE LESSER OFFENSE OF VIOLATION OF SECTION 17. pp. may be allowed by the trial court to plead guilty to a lesser offense. Thus. with the consent of the offended party and the fiscal. (Rollo. 6425. — The accused. 1037). However. pp. Section 2 thereof. 1979. 86). speedy and inexpensive determination of every action and proceeding. AS AMENDED. p.mind of this Court. However. Rule 116 of the Rules of Court. Plea of guilty to a lesser offense. this petition raising the following issues: I. the acceptance of an offer to plead guilty to a lesser offense under the aforequoted rule is not demandable by the accused as a matter of right but is a . or is cognizable by a court of lesser jurisdiction than the trial court. the law still permits the accused sufficient opportunity to change his plea thereafter. A conviction under this plea. 74-75) In the resolution of January 20. is a process whereby the accused and the prosecution work out a mutually satisfactory disposition of the case subject to court approval (see Black Law Dictionary. INSTEAD OF THE OFFENSE ORIGINALLY CHARGED OF VIOLATION OF SECTION 16 OF THE SAME LAW. 41-42) Hence. plea-bargaining is made during the pre-trial stage of the criminal proceedings. (Rollo. REPUBLIC ACT NO. SO ORDERED. WHETHER OR NOT RESPONDENT JUDGE ERRED IN GRANTING PRIVATE RESPONDENT'S REQUEST TO PLEAD GUILTY TO A LESSER OFFENSE BECAUSE THE REQUEST WAS FILED OUT OF TIME AND THE CONSENT THERETO OF THE PROSECUTOR AND THE OFFENDED PARTY WAS NOT OBTAINED.. II. We issued a temporary restraining order to enjoin the respondent Judge from enforcing the questioned judgment in the aforesaid criminal case (Rollo. No amendment of the complaint or information is necessary. 1992. p. regardless of whether or not it is necessarily included in the crime charged. 5th Ed. IN VIEW OF THE ABSENCE OF A VALID CHANGE OF PLEA. Parohinog (G. No. Consequently. 83 SCRA 437. et al. February 26. it is his duty to always prosecute the proper offense. The consent of both the Fiscal and the offended party is a condition precedent to a valid plea of guilty to a lesser offense (see Manuel v. et al. supra.e. waste of valuable time already spent by the court and prosecution) interposed by the Fiscal which was the least persuasive. Velasco. The provision of Section 2. Velasco. We held that the rules allow such a plea only when the prosecution does not have sufficient evidence to establish guilt of the crime charged. In such situation. Kayanan (L-39355. 1978.matter that is addressed entirely to the sound discretion of the trial court (Manuel v... Rule 116) under which a plea for a lesser offense is allowed was not and could not have been intended as a procedure for compromise. In his concurring opinion inPeople v. in People v. jurisprudence has provided the trial court and the Office of the Prosecutor with yardstick within which their discretion may be properly exercised. 1991). The counsel for the private respondent argues that only the consent of the fiscal is needed in crimes involving. G. then Justice Antonio Barredo explained clearly and tersely the rationale of the law: . Nos. October 15. . not any lesser .R. May 31. G. v. the respondent judge's acceptance of the private respondent's change of plea is improper and irregular. et al. As soon as the fiscal has submitted his comment whether for or against the said motion. 1991. Absent any finding on the weight of the evidence in hand. February 28. the only basis on which the fiscal and the court could rightfully act in allowing the appellant to charge his former plea of not guilty to murder to guilty to the lesser crime of homicide could be nothing more nothing less than the evidence already in the record. the private respondent (accused) moved to plead guilty to a lesser offense after the prosecution had already rested its case. 377). L-47462. 1980. Thus. Sandiganbayan. . No. We do not agree. 92362-67. In the case at bar. 6). The Fiscal has full control of the prosecution of criminal actions (Cinco. it behooves the trial court to assiduously study the prosecution's evidence as well as all the circumstances upon which the accused made his change of plea to the end that the interests of justice and of the public will be served. As evident from the foregoing. p. the judgment under review dwelt solely on only one of the three objections (i. En Banc Resolution).R. The reason for this being that Section 4 of Rule 118 (now Section 2. A reading of the disputed rulings in this case failed to disclose the strength or weakness of the prosecution's evidence. The reason for this is obvious. 94732. (A)fter the prosecution had already rested. 96 SCRA 373. et al. the trial court need not wait for a guideline from the Office of the Prosecutor before it could act on the accused's motion to change plea. It must be recalled that the other two grounds of objection were that the prosecution had already rested its case and that the possibility of conviction of the private respondent of the crime originally charged was high because of the strong evidence of the prosecution. Apparently.. Rule 116 is clear.R. much less bargaining. 450). violation of RA 6425 as amended because there is no offended party to speak Of and that even the latter's consent is not an absolute requirement before the trial court could allow the accused to change his plea. As a result. the counsel for the private respondent maintains that the private respondent's change of plea and his conviction to the lesser offense of violation of Section 17. Rule 116 of the Rules of Court applies in cases where both the fiscal and the offended party consent to the private respondent's change of plea. No. (b) . the government files the criminal action in the name of the People of the Philippines. . . The Fiscal who represents the government is duty bound to defend the public interests. is the ultimate victim of the drug menace. 377. 145 SCRA 50. Samio. will have to be secured from the Fiscal who acts in behalf of the government. Ale. 58). Instead. therefore.or graver one. — xxx xxx xxx However. Such pernicious effect is felt not only by the addicts themselves but also by their families. G. Lastly. double jeopardy. to the point that it is as though he were the person directly injured by the offense (see United States v. the conviction of the accused shall not be a bar to another prosecution for an offense which necessarily includes the offense charged in the former complaint or information under any of the following instances: (a) . v. the offended party in this case. the private respondent cannot claim this privilege. p. RA No. threatened by crime. The right against double jeopardy given to the accused in Section 2. The state is. the consent of the offended party. i. 7.e. 104 Phil. Since this is not the situation here. The threat posed by drugs against human dignity and the integrity of society is malevolent and incessant (People v. . et al. 6425 as amended is no longer open to review otherwise his constitutional right against double jeopardy will be violated. . when the evidence in his hands can only sustain the former (seePeople v. Former conviction or acquittal. Revilla. 696). the more pertinent and applicable provision is that found in Section 7. the state. 691. Rule 117 which states: Sec.R. 1986. October 14. . 395-396). the family. xxx xxx xxx . (c) the plea of guilty to the lesser offense was made without the consent of the Fiscal and of the offended party. also Vda.. . supra. society's survival is endangered because its basic unit. 393. It would not also be correct to state that there is no offended party in crimes under RA 6425 as amended. As guardian of the rights of the people. they are made so by law because they infringe upon the rights of others. 70998. 3 Phil. Parohinog. Such supposition has no basis. concurring opinion of then Justice Barredo. Viewed in this light. et al. While the acts constituting the crimes are not wrong in themselves. de Bagatua. ordered to indemnify the victim Lucelle Serrano. The Indictments Upon the sworn complaint of the victim Lucelle Serrano. ACCORDINGLY. For each count of rape. No costs.2 In the same decision..R. 2004 THE PEOPLE OF THE PHILIPPINES. Manuel y Ohide) are REVERSED and SET ASIDE. the private respondent could still be prosecuted under the original charge of violation of Section 16 of RA 6425 as amended because of the lack of consent of the Fiscal who also represents the offended party. SO ORDERED. The temporary restraining order issued in this case is made permanent.000 for each count of rape and P20. the appellant.. the petition is hereby GRANTED. Branch 156 dated February 25 and March 13.e. Metro Manila. likewise.000 for each count of acts of lasciviousness. the above-named . 131799-801 February 23. appellant. SR. as minimum. 97-385 to 97-388 finding appellant Feliciano Ulit y Tampoy guilty beyond reasonable doubt of two counts of qualified rape. Nos. 1345-D (People v. in Criminal Cases Nos. the trial court's approval of his change of plea was irregular and improper. eight (8) months and one (1) day of prision mayor in its medium period. 1997 of the Regional Trial Court of Makati City. as maximum. in the City of Makati. G. National Capital Region at Pasig. Philippines. J. four Informations were filed against her uncle.: Before the Court on automatic review is the Decision1 dated December 17. appellee vs. The judgment and order of the Regional Trial Court. the state. FELICIANO ULIT y TAMPOY.Under this rule. while for each count of acts of lasciviousness. six (6) months and twenty (20) days of reclusion temporal in its medium period. More importantly. The docket number and the accusatory portion of each Information reads: Criminal Case No.i. the appellant was convicted of two counts of acts of lasciviousness. Branch 62. 1991. respectively in Criminal Case No. to fifteen (15) years. 6425 as amended. The said criminal case is hereby remanded to the trial court for continuation of trial on the original charge of violation of Section 16 of Republic Act No. 97-385 That sometime in the month of November 1996. DECISION CALLEJO. the amount of P50. the appellant was sentenced to suffer imprisonment "from eight (8) years. a place within the jurisdiction of this Honorable Court." The appellant was. the trial court sentenced him to suffer the supreme penalty of death. 5 Criminal Case No. 97-388 That on or about the 2nd day of March 1997. to her damage and prejudice. the above-named accused. the above-named accused. violence and intimidation. to her damage and prejudice. did then and there willfully. Philippines. 97-387 That sometime in the month of December 1996. while armed with a knife. pleaded not guilty during the arraignment. unlawfully and feloniously have carnal knowledge of the complainant LUCELLE SERRANO y ULIT. by then and there dragging her inside a bathroom and repeatedly kissing her on her checks [sic].3 Criminal Case No. 97-386 That sometime in the month of February 1997.6 The appellant. without her consent and against her will. unlawfully and feloniously commit acts of lasciviousness upon complainant LUCELLE SERRANO y ULIT. in the City of Makati. Philippines. the above-named accused.accused. an eleven (11) year old girl. Metro Manila. without her consent and against her will.4 Criminal Case No. a place within the jurisdiction of this Honorable Court. a place within the jurisdiction of this Honorable Court. by means of force. in the City of Makati. unlawfully and feloniously have carnal knowledge of the complainant LUCELLE SERRANO y ULIT. violence and intimidation. did then and there willfully. without her consent and against her will. an eleven (11) year old girl. while armed with a knife. her relative by consanguinity within the third civil degree. assisted by counsel. by means of force. CONTRARY TO LAW. hence her relative by consanguinity within the third civil degree. violence and intimidation. Metro Manila. an eleven (11) year old girl. CONTRARY TO LAW. CONTRARY TO LAW. did then and there willfully. with lewd design by means of force. to her damage and prejudice. who is the uncle of the complainant LUCELLE SERRANO y ULIT. a place within the jurisdiction of this Honorable Court. an eleven (11) year old girl. violence and intimidation. . by then and there kissing her and touching her sexual organ. without her consent and against her will. hence. Joint trial of all the cases ensued. did then and there willfully. who is the uncle of complainant LUCELLE SERRANO y ULIT. Metro Manila. to her damage and prejudice. CONTRARY TO LAW. unlawfully and feloniously commit acts of lasciviousness upon complainant LUCELLE SERRANO y ULIT. Philippines. in the City of Makati. with lewd design by means of force. This illness is characterized by intense fear and feeling of helplessness whenever she recalls her traumatic experience of being raped. It causes her intense psychological distress whenever asked to talk about the rape scene or incident. On clarificatory questions by the court. On May 5. Lucelle did not answer. During the hearing on October 20. Lucelle testified that she was born on February 19. 1986. 1997. Lucelle refused to take the witness stand. On direct examination. 1997. 7104 San Maximo Street. When asked if she wanted to continue with her testimony. the prosecutor asked Lucelle to identify her signature in her sworn statement9 and to affirm the truth of its contents.7 In November 1996. 1997. Instead of asking questions to elicit the facts and circumstances before and during the commission of the crimes. She cried profusely in open court. mental status examination and psychological evaluation. this patient is suffering from Post-Traumatic Stress Disorder. Lucelle was questioned by the prosecution on direct examination. did something to her. Her father was working at a construction firm. At present. she avoids recollections of the trauma. She requires psychiatric treatment at the Out-Patient Section. she did not respond. the appellant. She did so. she is still manifesting symptoms described above. The appellant mounted her.8 During the trial on July 14. Lucelle was undergoing psychiatric treatment at the Philippine General Hospital. Rochelflume Samson examined Lucelle and submitted her Report dated August 29. the prosecution presented Lucelle anew to continue with her testimony on direct examination. the trial court ordered that Lucelle be subjected to physical and psychological examinations at the National Center for Mental Health (NCMH). When the prosecution asked her what happened. 1997. 1997.10 On cross-examination. She declared that the appellant raped her in November 1996 and many other times thereafter in her residence at No. 1997. but still." and then manifested to the court that he had no more questions for the witness on direct examination. she remained silent. She would be having difficulties testifying in court because of this. her uncle. 1986. the appellant was employed at the Department of . again. The trial was reset anew to July 9 and 14. In the meantime. When trial resumed on June 9. the prosecution presented her as its first witness. In November 1996.In the meantime. she gave no answer. 1997. Thus. The trial was reset to July 21. poked a knife at her and threatened her. Lucelle testified that the appellant was her mother’s older brother. removed her pants. 1997 with the following remarks and recommendation: Based on clinical history. she was not enrolled in any school. Dr. When asked by the court if she wanted to proceed with the trial. Makati City. The public prosecutor then marked the sworn statement in evidence as Exhibit "H. The trial was reset to June 2 and 9. Lucelle testified that she was born on February 19. he noticed blood stains on Lucelle’s short pants.m. Marina allowed her niece Lucelle to sleep in her bedroom. Also during the month of November 1996. Lucelle was born on February 19. He poked the weapon on the left side of her neck. who lived with her. he was in bed and noticed that the appellant was in the bedroom of his cousin-inlaw. Makati City. armed with a bladed weapon (balisong). her brother. Marina. When he asked her why she refused to accept the money. Lucelle replied that she was afraid to tell him because she might be killed. When she opened her eyes. In her sworn statement. Lucelle did not respond. Her sister Marina and the appellant. she was sleeping in a room in the house. the appellant continued kissing her whenever her parents were out of the house. he gave her P5. Celso Serrano. the appellant. He removed her panties. Lucelle’s father. Lourdes went to Marina’s bedroom and saw Lucelle in bed (papag). Sometime in February 1997. worked as a maid in Bel Air Subdivison. she saw her uncle. on February 19. The family slept together in the evenings in the sala of the house while Marina slept in her bedroom. he would kill her. She was awakened when she felt someone kissing her on the cheek. 7104 San Maximo Street. was not there either. When asked why she did not respond to the questions propounded to her during the previous hearings and why she had been crying in open court. and that her aunt. who usually also slept in the sala.m. 7104 San Maximo Street. testified that sometime in November 1996. Lucelle was in the room when the appellant entered and kissed her and mashed her private parts. the appellant again abused her (sinalbahe) while she was in the same room. also resided in the same house. inside the room of her aunt Marina in her grandmother’s house at No. Olympia. Her mother worked for one of her father’s cousins. On re-direct examination. he went to the bathroom. while her grandmother. Lucelle replied that she was afraid of her uncle. Lourdes Serrano testified that she was Lucelle’s mother. Guadalupe Ulit. undressed himself and mounted her. The appellant. the appellant.m. the appellant entered. Lourdes noticed that Lucelle was not at her side.11 Lucelle alleged that sometime in November 1996. Makati City. left the room. and her Ate Sharon were inside the room. Sometime later. At times. He warned her that if she told her parents. covered . 1997. one early Sunday morning. He then heard his wife ask the appellant where he had come from and the latter replied that he just came from the roof of the house. It was about 6 o’clock in the evening. 1997. at dawn. The appellant. At 11:00 p. at No. pushed her inside and kissed her on her cheeks several times.Environment and Sanitation in Makati City. thereafter. She felt pain in her private part and cried. the prosecution elicited from Lucelle that the appellant raped her in November 1996 at 11:00 p. When asked where her aunt and Ate Sharon were when she was being raped in her aunt’s room. Lucelle refused to accept the money. Olympia. On another occasion. on March 2. It was about 11 o’clock in the evening. In December 1996.00 with which to buy sanitary napkins. When she declared that she had her monthly period. At 9:00 p. He suggested that she wash herself but she just nodded her head. 1986. He then inserted his penis into her vagina.12 She and her husband Celso Serrano and their daughter Lucelle resided with her mother. He again warned her not to divulge to her parents what he did to her. Lucelle urinated in the bathroom and when she was about to go out. to Barangay Chairman Romeo Medina. Lucelle was crying and looked pale. Nita responded that the appellant was using it. Thereafter. on March 2. She then asked her cousin Nita if she had seen Lucelle. When Lourdes asked Nita if Lucelle was inside the bathroom. she and her husband were having dinner when she noticed that Lucelle was nowhere to be found. the appellant was brought to the Makati City Police Headquarters where Celso. she saw Lucelle lying sideways with her knees up to her chin (nakabaluktot). Nita replied in the negative. 1997. Dr. When Lourdes asked Lucelle why she was crying. On their way. She wanted to talk to the appellant but decided against it when she saw him seated in the sala. Lourdes left the room and went back to the sala. Celso and Lourdes brought Lucelle on March 5. When Lourdes removed the blanket. Momentarily. 1997. Lourdes further testified that at 9:00 p. went under the papag. When the appellant saw Lourdes. Lucelle told the barangay chairman that the appellant sexually abused her. She looked for her daughter in the house. despite her resistance. NBI Medico-Legal Officer. the barangay chairman ordered him and Barangay Tanod Antonio Echavez to invite and bring the appellant to the barangay hall. and furtively left the room.15 On July 28. He was in his short pants and his shirt was on his shoulder. Lourdes filed a complaint with the barangay chairman against the appellant for sexually molesting Lucelle. When Lourdes asked Lucelle what happened. Lourdes saw the appellant emerge from the bathroom.13 The appellant signed his statement in the presence of the barangay chairman and the barangay tanods. 1997. Lucelle was trembling with fear. when they reached the barangay headquarters. testified that on March 12. Believing that the appellant had been abusing their daughter. 1997. but failed to find her. she did not respond. A Sinumpaang Salaysay was prepared in the Office of the Barangay Chairman in which the appellant admitted that he raped Lucelle in February 1997. The appellant later told her sister Lourdes that he did not do anything to Lucelle. 1997. However. he slid down from the bed.m. playing with his balisong. SPO4 Lilia Hogar of the Women’s Desk Unit took the sworn statements of Lourdes and Lucelle. Lourdes was flabbergasted when she saw Lucelle come out of the bathroom after the appellant. The barangay chairman asked the appellant if he raped Lucelle and the latter replied that he did. she conducted genital and vaginal examinations on Lucelle and .14 She conducted a custodial investigation of the appellant who was without counsel during which the latter admitted having raped the victim. she told her mother that she had just urinated. Soreta-Umil. Armie M. Beside her was the appellant who was wearing a pair of short pants and undershirt.with a blanket. He was perspiring profusely. Lourdes and Lucelle filed a complaint against him for rape and acts of laciviousness. Lucelle adamantly refused to tell her parents what the appellant did to her. and that he threatened to kill her and her family if she divulged the incidents to her parents. 1997. and on March 2. Barangay Tanod Fernando David testified that on March 6. From the barangay headquarters. SPO4 Hogar also prepared a report on her investigation of the victim’s complaint. protruding.6 cms. objected to the admissibility of Lucelle’s sworn statement on the ground that she was incompetent to give the same because of her mental illness. light-brown. intact but distensible. No extragenital physical injuries noted. After the prosecution had rested its case. Breasts. and its orifice wide (2. fully grown. conical. 1997 for the appellant to adduce his evidence.8 cm. Labia minora. coaptated. lax. 0.) Hymen. Rugosities. 97-385 and 97-387 from "not guilty" to "guilty. in diameter) as to allow complete penetration by an average-sized adult Filipino male organ in full erection without producing any genital injury. distensible. Weight: 78 lbs. cooperative. gaping. tall. The trial court suspended the proceedings and gave the appellant forty-five minutes to . thick.5 cms. 2. firm. the trial court admitted the statement as part of David’s testimony. Nipples. Normally developed. 2. The trial court admitted the sworn statement of Lucelle in evidence as part of her testimony. Nevertheless. in diameter. MG-97-355 which contained the following findings: GENERAL PHYSICAL EXAMINATION: Height: 141 cm. When the case was called for trial on that date.submitted Living Case Report No. the appellant objected to its admission on the ground that the appellant was not assisted by counsel and that. conscious. he was forced and coerced into signing the same. fairly nourished. The appellant’s counsel.5 cms. likewise. his counsel manifested to the court that the appellant was changing his plea in Criminal Cases Nos. Areolae. ambulatory subject. coherent. GENERAL EXAMINATION: Pubic hair. in diameter. 97-386 and 97-388 because the prosecution failed to prove his guilt beyond reasonable doubt for the crimes charged therein.16 When the prosecution offered in evidence the appellant’s Sinumpaang Salaysay before the barangay chairman17as part of the testimony of Barangay Tanod Fernando David. intact. Vaginal walls. admits a tube 2. moderate. Vestibular mucosa. the trial court reset the hearing to November 5." He also manifested that he would no longer adduce any evidence in his defense in Criminal Cases Nos. CONCLUSIONS 1. Fourchette.) No evident sign of extragenital physical injuries noted on the body of the subject at the time of examination. light-brown. Labia majora. lax. Hymen. pinkish. shallow. Hymenal orifice. developing. in diameter. the prosecution has proven beyond reasonable doubt the guilt of the accused. as amended. and. 97-387 and 97-388. In Criminal Case Nos.confer with his counsel. as principal in two counts of acts of lasciviousness defined under Article 336 of the Revised Penal Code and penalized under Section 5(b) of R. and. the prosecutor adduced proof beyond reasonable doubt of the guilt of the appellant for qualified rape in Criminal Cases Nos. and indemnify the victim LUCELLE SERRANO. six (6) months and twenty (20) days of reclusion temporal in its medium period. 97-385 and 97-386.18 The trial court declared that even prescinding from the appellant’s plea of guilty. premises considered. LUCELLE SERRANO. the said cases were brought to this Court on automatic appeal. in the amount of P20. 97-385 and 97-387 with the assistance of the same counsel and entered his plea of guilty to the charges. the prosecution has proven beyond reasonable doubt the guilt of the accused. In view of the trial court’s imposition of the death penalty on the appellant in Criminal Cases Nos. He is hereby declared CONVICTED in each of the two cases. as maximum. the trial court rendered judgment convicting the appellant of all the crimes charged. Accordingly he is sentenced to suffer the supreme penalty [of] DEATH in each of the two cases. the appellant reiterated his earlier manifestation. to fifteen (15) years. 1997. He is hereby declare[d] CONVICTED in each of the cases. 97-387 and 97-388. FELICIANO ULIT Y TAMPOY. to wit: . The appellant assails the decision of the trial court with the lone assignment of error. On December 15. 7610. In Criminal Case Nos. When trial resumed. as minimum. eight (8) months and one (1) day of prision mayor in its medium period. he is sentenced to suffer in each of the cases an indeterminate prison term from eight (8) years. 2. 97-385 and 97-386. The decretal portion of the decision reads: WHEREFORE. The appellant was re-arraigned in Criminal Cases Nos. SO ORDERED. indemnify the victim. for acts of lasciviousness. 97-385 and 97-386. When told by the court that he could be sentenced to death for the rape charges. accordingly. and to no longer present any evidence in his defense in the other two cases. FELICIANO ULIT Y TAMPOY. The trial court ruled that although Lucelle did not testify on the contents of her sworn statement19 the same were admissible in evidence as part of the res gestae.000 as moral damages for each of the cases. the appellant stood pat on his decision to plead guilty in Criminal Cases Nos.A. 97-385 and 97-387.000 as moral damages for each of the cases. as principal in the two counts of statutory rape defined and penalized under Article 335 of the Revised Penal Code. in the amount of P50. judgment is hereby rendered as follows: 1. The appellant did not appeal from the decision in Criminal Cases Nos. for rape. Undoubtedly. however. The court must require the prosecution to present evidence in his behalf and allow him to do so if he desires. and the appellate tribunal may consider and correct errors though unassigned and even reverse the decision of the trial court on the grounds other than those the parties raised as errors. He asserts that he was so remorseful for the crimes he committed and that he pleaded guilty in Criminal Cases Nos.24 The raison d’etre for the rule is that the courts must proceed with extreme care where the imposable penalty is death. the rape of his niece. i. The court must conduct a searching inquiry into the voluntariness and full comprehension [by the accused] of the consequences of his plea. The court must require the prosecution to present evidence to prove the guilt of the accused and precise degree of his culpability." it behooved the trial court to conduct a searching inquiry into the voluntariness and full comprehension of the consequences of his plea as mandated by Section 6. Improvident pleas of guilty to a capital offense on the part of the accused must be averted since by admitting his guilt before the trial court. When the appellant informed the trial court of his decision to change his plea of "not guilty" to "guilty. 7659. 97-388 so that the proceedings before the court would be shortened and simplified. Camay. In Criminal Case No. 97-385 was Imprudently Made.25 There is no hard and fast rule as to how the trial judge may conduct a searching inquiry. Nevertheless.21 An appeal thus opens the whole case for review. that he be spared the death penalty. Experience has shown that even innocent persons have at times pleaded guilty. that the focus of the inquiry must be on the voluntariness of the plea and the full or complete comprehension by the accused of .THE TRIAL COURT ERRED IN SENTENCING THE ACCUSED FELICIANO ULIT WITH A DEATH PENALTY DESPITE HIS ADMISSION OF GUILT. He pleads. he no longer presented any evidence in Criminal Case No.22 Appellant’s Plea of Guilty in Criminal Case No. as amended by Republic Act No. 97-385 and 97-387.e. the appellant was charged with a capital offense. however. the appeal in a criminal case is a review de novo and the court is not limited to the assigned errors. considering that the execution of such sentence is irrevocable. the appellant was charged with qualified rape.23 this Court enumerated the following duties of the trial court under the rule: 1.20 The appellant does not contest his conviction for rape in Criminal Cases Nos. It has been held. In People vs. the accused would forfeit his life and liberty without having fully understood the meaning. significance and the dire consequences of his plea. who was a minor. punishable by death under Article 335 of the Revised Penal Code. 97-385 and 97-386. 97-385. Rule 116 of the Revised Rules of Criminal Procedure. and the validity of the proceedings in the said cases in the trial court. and 3.. 2. and (c) under what conditions he was detained and interrogated during the investigations.28 we held that the trial court is also required to probe thoroughly into the reasons or motivations. as well as the facts and circumstances for a change of plea of the accused and his comprehension of his plea. (5) Require the accused to fully narrate the incident that spawned the charges against him or make him reenact the manner in which he perpetrated the crime. (b) whether he had the assistance of a competent counsel during the custodial and preliminary investigations. It is the duty of the judge to see to it that the accused does not labor under these mistaken impressions. (3) Elicit information about the personality profile of the accused. such as his age. (2) Ask the defense counsel a series of questions as to whether he had conferred with. These the court shall do in order to rule out the possibility that the accused has been coerced or placed under a state of duress either by actual threats of physical harm coming from malevolent or avenging quarters. Ostia. In People vs. and completely explained to. Not infrequently indeed an accused pleads guilty in the hope of a lenient treatment or upon bad advice or because of promises of the authorities or parties of a lighter penalty should he admit guilt or express remorse. Aranzado. This is evident by the transcript of stenographic notes taken on November 5. (4) Inform the accused the exact length of imprisonment or nature of the penalty under the law and the certainty that he will serve such sentence. explain to him the elements of the crime for which he is charged as well as the nature and effect of any modifying circumstances attendant to the commission of the offense. as well as the qualifying and special qualifying circumstances. and inform him of the imposable penalty and his civil liabilities for the crime for which he would plead guilty to. or cause him to supply missing details or significance. which may serve as a trustworthy index of his capacity to give a free and informed plea of guilty.29 In this case. and educational background. socio-economic status. MANALO . inclusive of mitigating and aggravating circumstances.26 we formulated the following guidelines as to how the trial court may conduct its searching inquiry: (1) Ascertain from the accused himself (a) how he was brought into the custody of the law. the accused the meaning and consequences of a plea of guilty. 1998: ATTY. the trial court failed to make a searching inquiry into the appellant’s voluntariness and full comprehension of his plea of guilty.27 In People vs.his plea of guilty so that it can truly be said that it is based on a free and informed judgment. Your Honor. that you would like to change your plea from not guilty to that of guilty and that you are no longer presenting evidence in Criminal Cases Nos. COURT You better confer with your client and explain to him the consequences of his intended change of plea from not guilty to that of guilty. 97-387. Your Honor. COURT (to the accused) Is your counsel’s manifestation true. COURT .Your Honor. for Acts of Lasciviousness. accused informed this representation that he will no longer present evidence and instead willing to change his plea from not guilty to that of guilty. earlier your counsel informed the court that you would like to change your plea from not guilty to that of guilty. This accused’s representation is therefore praying that he be allowed to change his plea from that of not guilty to guilty. ATTY. for rape and Criminal Case No. The Court will call your case again. in Criminal Case No. 97-386 and 97-388? ACCUSED Yes. 97-385. Ulit. … COURT (to the accused) Mr. MANALO Yes. do you affirm the manifestation of your counsel? ACCUSED Yes. at today’s reception of defense’ evidence. Your Honor. COURT (to the accused) You talk with your lawyer and think twice before asking the court to change your plea of not guilty to that of guilty. COURT (to accused) Do you know that by pleading guilty you will be sentenced in accordance with [what] the law provides? ACCUSED Yes. COURT (to accused) Despite your knowledge that you are charged with a capital offense which carries with it a capital penalty you still insists that you are pleading guilty? ACCUSED Yes. COURT (to accused) Was there anyone who forced you to change your plea of not guilty to that of guilty? ACCUSED None. Your Honor. COURT (to accused) Do you know that the penalty provided for by law is death penalty because the Information states that the victim is eleven years old and your niece and that you used a deadly weapon in the commission of the rape? ACCUSED .(to accused) Do you know that you are accused here for the crime of rape. Your Honor. Your Honor. a capital offense which carries with it a capital punishment? ACCUSED Yes. Your Honor. The trial court did not explain the following to the appellant. I am willing to plead guilty.31 he confessed to having raped the victim only in February 1997 and March 2. It appears in the Informations filed by the Public Prosecutor that the appellant opted not to avail himself of his right to a regular preliminary investigation and refused to execute a waiver under Article 125 of the Revised Penal Code. Third. However. the appellant objected thereto on the ground that he was not assisted by counsel and that he was coerced into signing the same. if he was not so assisted by counsel. 1997. The records show that when the prosecution offered the appellant’s Sinumpaang Salaysay in evidence to prove that he confessed to having raped the victim in February 1997 and March 2. Fifth. when in his Sinumpaang Salaysay. in plain and simple terms so as to be understood by him: (a) the elements of the crime of qualified rape. The trial court also failed to ascertain from the appellant whether he was assisted by counsel when he executed his Sinumpaang Salaysay while detained at the barangay hall. (b) the circumstances of relationship and the minority of the victim. arraign the accused. Fourth. the trial court did not ask the appellant whether he was assisted by counsel when he was brought to the Office of the Public Prosecutor for inquest investigation. The trial court did not ask the appellant his reasons for changing his plea. and.Yes. . The trial court failed to ask the appellant why he was pleading guilty to a rape committed in November 1996. whether he had waived his right thereto. and the cogent circumstances that led him to decide to do so. Neither did the court a quo inquire about the circumstances and the appellant’s reasons for refusing to execute the said waiver. COURT Alright.30 First. Second. The appellant did not admit having raped her in November 1996 as alleged in the Information in Criminal Case No. 1997. The trial court did not even inquire from the appellant who prepared and typed his Sinumpaang Salaysay and if the contents of his statement were explained to him before he signed the same. Your Honor. The records also show that the appellant executed a Sinumpaang Salaysay while detained at the barangay hall where he confessed to having raped the victim in February 1997 and March 2. 97-385. 1997. before and when he signed his Sinumpaang Salaysay. from not guilty to that of guilty. and (c) that his plea of guilty to qualified rape would not mitigate the penalty for the crime in light of Article 63 of the Revised Penal Code. 97-385 in spite of his plea of guilty. Tenth. It is. bears stressing that in all criminal prosecutions. not contingent on the plea of guilty.000 as moral damages and P75. Seventh. but more difficult for the person accused. though innocent. 97-385. he may still be convicted if there is ample proof on record. he would be civilly liable to the victim in the amount of P50. without regard to the nature of the defense which the accused may raise. Neither did the trial court inquire from the appellant’s counsel whether the meaning and the consequences of a guilty plea were explained to the appellant in a language or dialect known to and understood by him. the trial court granted the prosecution’s motion that the evidence it had presented be considered proof of the degree of culpability of the appellant.33 In this case. Eight. (b) that in view of the intrinsic nature of the crime which usually involves two persons. the testimony of the complainant must be scrutinized with extreme caution. As a rule. the prosecution had already rested its case when the appellant decided to change his plea. incumbent upon this Court to determine whether the evidence adduced by the prosecution in Criminal Case No. independently of his plea of guilty. the burden of proof remains at all times upon the prosecution to establish his guilt beyond reasonable doubt.32 However. this Court has set aside convictions based on pleas of guilty in capital offenses because of the improvidence thereof. likewise. It was not explained to the appellant that if convicted of qualified rape. Ninth. In fact.Sixth. The trial court failed to delve into and ascertain from the appellant his age. thus. on which to predicate conviction.000 as civil indemnity ex delicto.35 The Prosecution Adduced Proof of the Appellant’s Guilt Beyond Reasonable Doubt of the Crime .34 It. to disprove. The trial court failed to ask the appellant to narrate the facts and circumstances surrounding the incident of qualified rape as charged in Criminal Case No. evidence to determine whether the accused committed the crimes charged and the precise degree of his criminal culpability therefor. it is difficult to prove. and (c) that the evidence for the prosecution must stand or fall on its own merits and cannot be allowed to draw strength from the weakness of the evidence of the defense. The appellant was not asked if he desired to adduce evidence in Criminal Case No. In determining the guilt of the accused in rape cases. educational attainment and socio-economic status. the Court is guided by the following considerations: (a) that an accusation of rape can be made with facility. and when such plea is the sole basis of the condemnatory judgment. where the trial court receives. 97-385 is sufficient to establish beyond reasonable doubt the appellant’s guilt for qualified rape. . matapos mong ituro ang tiyuhin mo. ano ang ginawa niya sa iyo? A Ginahasa niya ako. po. that indeed. on direct examination and her testimony on clarificatory questions made by the trial court. Q Ilang ulit kang ginahasa? A Marami po. The victim declared in her sworn statement. hindi na siya nagtratrabaho. Q Saan ka ginahasa? A 7104 San Maximo St. . anong oras ng gabi nang gahasain ka ng Tito Ely mo noong Nobyembre 1996? A Alas onse po ng gabi. wala na siya sa trabaho? A Wala na po. Q Samakatuwid. the appellant raped her in November 1996. Makati City. Quoted hereunder is the testimony of Lucelle on direct and on re-direct examination: Fiscal Q So. po.36 … Fiscal Q Humigit-kumulang.of Rape in Criminal Case No. Q 19? A 1996. Q Saang lugar ka ginahasa? A Sa 7104 San Maximo St. 97-385 We have reviewed the evidence on record and we are convinced that the prosecution adduced proof beyond reasonable doubt that the appellant raped the victim in November 1996. Q Kailan ka ginahasa ng tiyuhin mo? A November po. at nang ako po ay magising ay nakita ko po si TITO ELY na may hawak na balisong na humigit kumulang po sa 10 pulgada ang haba na nakatutok sa aking kaliwang leeg habang humahalik po sa aking pisngi at ang sabi ay kung ako daw po ay magsusumbong sa aking magulang ay papatayin po niya (TITO ELY) ako. simply because she did not testify thereon and merely identified her signatures therein.…40 We do not agree with the ruling of the trial court that the contents of the sworn statement of Lucelle are hearsay..41 It signifies all evidence which is not founded upon the personal knowledge of the witness from whom it is elicited.39 Lucelle narrated in detail how the appellant ravished her: 06. po. Q Saang parte ng bahay ka ginahasa ng Tito mo? A Sa kuwarto po. the admission of hearsay evidence would .. Pagkatapos po ay hinubaran po ako ng panty at naghubad na rin po si TITO ELY ng kanyang short pants at pumatong na po sa akin.. By hearsay evidence is meant that kind of evidence which does not derive its value solely from the credence to be attributed to the witness herself but rests solely in part on the veracity and competence of some persons from whom the witness has received the information. COURT Q Noong Nobyembre 1996. Q Doon din sa bahay na iyong tinitirhan? A Opo. mga bandang 6:00 ng gabi po nang ako ay natutulog sa loob po ng kuwarto ay nagising na lang po ako nang maramdaman ko na may humahalik sa aking pisngi.Q Sa loob ba ng bahay? A Opo. since the declarant is not present and available for cross-examination. Ipinasok po ni TITO ELY and kanyang (TITO ELY) ari sa aking "PEPE" at ako po ay nasaktan at umiyak na lang po ako at nang makaraos po si TITO ELY ay umalis na lang . consequently. Saan ka ginahasa ng Tito mo? A Sa 7104 San Maximo St. T: Kailan ka unang senalbahe ng iyong TITO ELY? S: Noon pong Nobyembre 1996 hindi ko na po matandaan ang petsa. ayon sa iyo ay ginahasa ka ng iyong Tito. and which.42 The basis for the exclusion appears to lie in the fact that such testimony is not subject to the test which can ordinarily be applied for the ascertainment of truth of testimony. is not subject to crossexamination. In criminal cases.37 .38 In her Sworn Statement. it shall not be considered by the court for the simple reason that the court shall consider such evidence formally offered and accepted. that he raped Lucelle in February 1997: Na. When Lourdes removed the blanket. As gleaned from the said statement." Nagpupumiglas siya habang ako ay nakadagan sa kanya na noon din ay hinuhubad ko ang aking "brief. and the testimony of Dr. The prosecution offered her sworn statement as part of her testimony and the court admitted the same for the said purpose without objection on the part of the appellant.46 the testimony of her mother. covered with a blanket beside the appellant who was wearing a pair of short pants and undershirt. her knees near her chin (nakabaluktot). We agree with the trial court’s findings and conclusion. She was cross-examined by the appellant’s counsel and answered the trial court’s clarificatory questions.48 she declared that the appellant subjected her to sexual abuse. Second. The appellant admitted to the barangay chairman on March 5. 97-386 on the basis of Lucelle’s sworn statement. she narrated how and when the appellant raped and subjected her to lascivious acts. The Prosecution Proved Beyond Reasonable Doubt that the Appellant Raped the Victim in February 1997 The trial court convicted the appellant of rape in Criminal Case No. habang siya ay aking hinuhubaran ng "Short" na kasama pati ang kanyang "panty. the appellant’s statement47 executed in the Barangay Chairman’s Office. He slid down from the papag.49 . Lourdes Serrano. In Lucelle’s sworn statement. noong isang araw ng PEBRERO 1997. Lumapit ako sa kanya at pinaghihipuan sa maseselang parte ng kanyang katawan at nang siya’y magising tinakot ko siyang huwag sisigaw. the affidavits of persons who are not presented to testify on the truth of the contents thereof are hearsay evidence.44Such affidavit must be formally offered in evidence and accepted by the court. Armie Soreta-Umil. Lucelle testified on and affirmed the truth of the contents of her sworn statement which she herself had given.45 In this case. went under the bed and slipped outside. Umiiyak siya habang ang aking ari ay labas masok sa kanyang ari.43 Generally. lying sidewise. First. Nang ako ay makaraos ay tinakot ko siyang huwag magsusumbog sa kanyang mga magulang. otherwise." Pinaghahalikan ko po siya habang siya ay nagpupumiglas at umiiyak at noon din ay aking pinasok ang aking ari sa kanyang ari. Third. pumasok ako na nadatnang nakahiga si LUCILLE ULIT sa isang papag na anyong natutulog.be a violation of the constitutional provision while the accused shall enjoy the right to confront and cross-examine the witness testifying against him. she saw Lucelle trembling with fear. 1997. sa loob ng kuwarto ng aking kapatid na babae. Lourdes saw Lucelle in bed (papag) in Marina’s room. . provides in part: ART. . this covers "investigation conducted by police authorities which will include investigations conducted by the municipal police. her Minority. Article 335 of the Revised Penal Code. By using force or intimidation. 2. 1. which was the law in effect at the time of the commission of the subject rapes. as amended by Section 11 of Republic Act No. When the woman is deprived of reason or otherwise unconscious.50 The exclusionary rule is premised on the presumption that the defendant is thrust into an unfamiliar atmosphere and runs through menacing police interrogation procedures where the potentiality for compulsion. it is still admissible in evidence against him because he was not under arrest nor under custodial investigation when he gave his statement.. 7659. it cannot be successfully claimed that the appellant’s statement before the barangay chairman is inadmissible. the penalty shall be reclusion perpetua to death. When the woman is under twelve years of age or is demented. The Sufficiency of Evidence on Lucelle’s Relationship with the Appellant. the PC and the NBI and such other police agencies in our government. Under these circumstances.Rape is committed by having carnal knowledge of a woman under any of the following circumstances. The crime of rape shall be punished by reclusion perpetua. is forcefully apparent. As intended by the 1971 Constitutional Convention. The death penalty shall also be imposed if the crime of rape is committed with any of the following attendant circumstances: . and 3. Whenever the crime of rape is committed with the use of a deadly weapon or by two or more persons.Although the appellant was not assisted by counsel at the time he gave his statement to the barangay chairman and when he signed the same. 335. When and how rape is committed. physical and psychological. and the Propriety of the Imposition of the Death Penalty The appellant’s conviction for two counts of rape having been duly established by the prosecution.. we now come to the question of the penalty to be meted upon him."51 The barangay chairman52 is not deemed a law enforcement officer for purposes of applying Section 12(1) and (3) of Article III of the Constitution. or guardian or common law spouse of the mother of the victim . similar authentic documents such as baptismal certificate and school records which show the date of birth of the victim would suffice to prove age. Ferolino. ascendant. The same cannot. relative by consanguinity or affinity within the third civil degree.1. The best evidence to prove the age of the offended party is an original or certified true copy of the certificate of live birth of such party. being the older brother of the victim’s mother. The allegations in both Informations that the appellant is the victim’s "uncle. When the victim is under eighteen (18) years of age and the offender is a parent. step-parent.55 we said – In this case the allegation that FERLYN is ANTONIO's niece is not specific enough to satisfy the special qualifying circumstances of relationship. 2. step-parent. set out certain guidelines in appreciating age. it was still necessary to further allege that such relationship was within the third civil degree.54 The relationship between the appellant and the victim has been adequately established. or the common-law spouse of the parent of the victim. In People v. makes the decisionmaking process in capital offenses aptly subject to the most exacting rules of procedure and evidence.57 the Court.56 The prosecution’s evidence has also shown that the appellant is the victim’s uncle. Even if it was.. In the absence of a certificate of live birth. It must be stressed that the severity of the death penalty. a fact that the appellant himself admitted. in order to qualify the crime of rape and warrant the imposition of the death penalty. ascendant. More importantly. it must be established with certainty that the victim was below eighteen (18) years of age or that she was a minor at the time of the commission of the crime." "a relative by consanguinity within the third civil degree" is specific enough to satisfy the special qualifying circumstance of relationship. . however. If the offender is merely a relation . Pruna. especially its irreversible and final nature once carried out.it must be alleged in the information that he is "a relative by consanguinity or affinity [as the case may be] within the third civil degree. after noting the divergent rulings on proof of age of the victim in rape cases. either as an element of the crime or as qualifying circumstance: 1.not a parent. they must be both alleged and proved. . In People v. guardian.. be said with respect to the age of the victim." That relationship by consanguinity or affinity was not alleged in the informations in these cases. The qualifying circumstances of minority and relationship must concur.53 In addition to the requirement that the qualifying and aggravating circumstance must be specifically alleged in the information. the imposable penalty shall be reclusion perpetua to death. which provides that. no birth certificate or any similar authentic document was presented and offered in evidence to prove Lucelle’s age. the same will not suffice as the appellant did not expressly and clearly admit the same as required by Pruna. the complainant's testimony will suffice provided that it is expressly and clearly admitted by the accused. as there is no evidence that the said certificate of birth was lost or destroyed or was unavailable without the fault of the prosecution. The corroboration of Lucelle’s mother as to her age is not sufficient either. The failure of the accused to object to the testimonial evidence regarding age shall not be taken against him. If the victim is alleged to be below 7 years of age and what is sought to be proved is that she is less than 12 years old. and under . authentic document. c. If the victim is alleged to be below 3 years of age and what is sought to be proved is that she is less than 7 years old. as amended. another requirement mandated by Pruna. of the victim's mother or a member of the family either by affinity or consanguinity who is qualified to testify on matters respecting pedigree such as the exact age or date of birth of the offended party pursuant to Section 40. Rule 130 of the Rules on Evidence shall be sufficient under the following circumstances: a. the trial court did not make a categorical finding of the victim’s minority. The fact that there was no objection from the defense regarding the victim’s age cannot be taken against the appellant since it is the prosecution that has the burden of proving the same. "[w]henever rape is committed with the use of a deadly weapon or by two or more persons. The trial court should always make a categorical finding as to the age of the victim.58 In the present case. 1986. or the testimony of the victim's mother or relatives concerning the victim's age." The evidence on record shows that the appellant raped Lucelle with the use of a deadly weapon in both rape incidents as alleged in both informations. Moreover. If the certificate of live birth or authentic document is shown to have been lost or destroyed or otherwise unavailable. therefore 11 years old when the appellant twice raped her. Another issue that needs to be settled is the third paragraph of Article 335 of the Revised Penal Code. 6. 4. It is the prosecution that has the burden of proving the age of the offended party. the testimony. 5.3. In the absence of a certificate of live birth. If the victim is alleged to be below 12 years of age and what is sought to be proved is that she is less than 18 years old. b. While the victim testified that she was born on February 19. if clear and credible. 000 as exemplary damages. the qualifying aggravating circumstance of use of a deadly weapon having attended the commission of the crime. and in each case. In addition to this. the appellant should be sentenced to suffer reclusion perpetua for each count of rape. the presence of an aggravating circumstance in the commission of the crime is crucial.62 WHEREFORE. the imposable penalty for which is reclusion perpetua to death. the imposable penalty for the crime is reclusion perpetua to death. Lucelle Serrano. the Decision of the Regional Trial Court of Makati City. the same being mandatory upon the finding of the fact of rape. 97-385 and 97-386. The appellant Feliciano Ulit y Tampoy is found GUILTY beyond reasonable doubt of two counts of rape in Criminal Cases Nos. 7659. the trial court erred in not awarding civil indemnity to the victim in each case. is hereby sentenced to suffer the penalty of reclusion perpetua and ordered to pay the victim. or relative by affinity in the same degree of the offender.61 Thus. it is only taken into consideration under Article 15 of the Revised Penal Code "when the offended party is the spouse. the alternative circumstance of relationship under Article 15 of the Revised Penal Code cannot be appreciated as an aggravating circumstance against the appellant.000 as exemplary damages. Costs de oficio. the appellant can only be convicted of rape in its aggravated form. as amended by Republic Act No.000 as moral damages to the victim in each rape to be in order.000 as civil indemnity. as amended. The victim is entitled to moral damages without need of proof other than the fact of the rape itself because it is assumed that the victim has suffered moral injuries entitling her to such an award.60 We find the trial court’s award of P50. ascendant. 97-385 to 97-388 is AFFIRMED with MODIFICATION. although the relationship of uncle and niece between the appellant and the victim has been duly proven.Article 335 of the Revised Penal Code. this Court awards the victim the sum of P50.59 Hence. legitimate. for the prosecution’s failure to prove the age of the victim by any means set forth in Pruna. and P25.000 as civil indemnity for each count of rape. appellant is ordered to pay the victim P25. . In the determination of whether the death penalty should be imposed on the appellant. There being no modifying circumstances attendant to the commission of the crimes. P50. In the cases at bar. natural or adopted brother or sister. P50. However. descendant. regardless of whether the offender is a relative of a higher or lower degree of the offended party." The relationship of uncle and niece is not covered by any of the relationships mentioned. in Criminal Cases Nos.000 as moral damages. and considering that the relationship of uncle and niece is not covered by any of the relationships mentioned in Article 15 of the Revised Penal Code. While it is true that the alternative circumstance of relationship is always aggravating in crimes against chastity. conformably to Article 69 of the Revised Penal Code. Branch 62. Rolindo A. 7th Judicial Region. denying petitioner's application for probation. REGALADO. vs. 1986.00. through counsel. a judgment of conviction was promulgated sentencing petitioner to suffer imprisonment of six (6) years and one (1) day and to pay a fine of P6. 1986. 1986. together with the costs of suit. HON. The facts which gave rise to the foregoing judicial issuances follow. Branch XII. 76100 April 18. Presiding Judge. (b) Order of respondent judge. 1986. On May 10. dated August 25. allowing petitioner to remain on provisional liberty under the same bond.: The petition at bar seeks to nullify the following a Judgment of conviction. ordered the Probation Officer of the City of Cebu to conduct a post-sentence investigation on the petitioner.00 and the costs of suit. Article II of Republic Act No.SO ORDERED. 1990 SALEM ALEX PALO y TOYUR. FRANCIS J. petitioner. petitioner. also assisted by his counsel de oficio.000. 1986. otherwise known as the Dangerous Drugs Act of 1972. upon being duly arraigned on the same date. agents of the Narcotics Command in Cebu City apprehended petitioner who was in possession of three (3) sticks of marijuana cigarettes. respondent judge. 1986. 1 Immediately thereafter. as amended. During the plea bargaining on June 11. petitioner.R. After respondent judge clarified to petitioner the consequences of his plea. denying petitioner's omnibus motion for reconsideration. manifested his desire to plead guilty to the offense charged provided that he be meted a sentence that would qualify him to apply for probation. Thus. The prosecution did not manifest any objection. manifested that he was applying for probation and prayed that his bond be allowed to continue until his probation may have been granted. 1986. sentencing petitioner to suffer imprisonment of six (6) years and one (1) day and to pay a fine of P6. 2 On June 13. dated June 11. dated September 19. dated June 11. and (c) Order of respondent judge. No. J. Respondent judge granted the prayer and issued an order. MILITANTE. respondent. 3 . pleaded guilty. 6425. Regional Trial Court of Cebu. Navarro for petitioner. He was subsequently charged with violation of the second paragraph of Section 8.000. acting on petitioner's application for probation. petitioner. G. through his counsel de oficio. This is totally in accord with Section 4 of Presidential Decree No. 2. 8 To bolster his recourse. In a resolution dated October 27. He advances the view that his motion to withdraw his improvident plea of guilty was timely because the filing of an application for probation suspends the running of the period for perfecting an appeal or to withdraw an improvident plea of guilty. respondent judge denied the same. Rule 120 of the 1985 Rules on Criminal Procedure is explicit that a judgment in a criminal case becomes final when the accused has applied for probation. certiorari will not lie. 1990 so as to disqualify petitioner from the benefits of probation. inter alia. 1986. and 3. Whether or not respondent judge gravely abused his discretion in denying petitioner's omnibus motion for reconsideration. It was explained in the order that petitioner was not entitled to probation in view of a memorandum circular coming from the Probation Administration.7 hence the present special civil action for the extraordinary writ of certiorari. dated July 15. 1986. 1986. viz: 1. the Court. 76. through the First Division. filed an omnibus motion for reconsideration and for the withdrawal of an improvident plea of guilty. Section 7. which qualifies accused persons sentenced to six (6) years and one (1) day imprisonment to the benefits of probation. that persons sentenced to serve a maximum term of imprisonment of more than six (6) years are not entitled to probation. Whether or not petitioner may still withdraw his improvident plea of guilty. . Whether or not Batas Pambansa Bilang 76 was repealed by Presidential Decree No. on August 25. 6 After hearing the omnibus motion for reconsideration on September 19. The following issues are raised by petitioner for resolution. respondent judge issued an order motu proprio denying the application for probation and ordering petitioner to serve his sentence. petitioner was re-arrested and committed to jail on September 5. 968. petitioner insists that his plea of guilty was improvident because he was not properly apprised of the consequences of his plea and that the only conceivable consequence he had in his mind at the time he pleaded guilty to the charge was that he would be extended the benefits of probation instead of going to jail after his conviction. has not been repealed expressly or impliedly by Presidential Decree No.However. 1986. On September 15. 1986. 1990. 1986. which states. through his counsel de parte. 4 In view of this development. petitioner. 5 The comments of the prosecution indicated no objection to said motion. issued a temporary restraining order enjoining respondent judge from enforcing his order of August 25. The petition is devoid of merit. 1986. He further argues that Batas Pambansa Blg. As further explained by respondent judge. the judgment in the lower court having become final. In other words. the petitioner understood the allegations in the information and he knew very well the import of his plea. As observed by respondent judge who filed his memorandum in propria persona." 10 These facts are also recited in the assailed judgment of conviction. which in part provides that the filing of an application for probation is deemed a waiver of the right to appeal. the factual circumstances do not render or categorize as improvident the plea of guilty entered by petitioner. 13 even if we were to evaluate the merits of his said application. He was a third year college student so that it cannot be said that he did not understand the information read to him. the respondent judge is not vested with any discretion to allow the alleged improvident plea of guilty to be withdrawn and be substituted by a plea of not guilty. the records of the case below reflect his unconditional plea. 9 Again. He admitted he had in his possession three (3) sticks of marijuana cigarettes without any authority nor license to possess them. The withdrawal of such plea is not a matter of strict right to the accused but of sound discretion to the trial court. "there was no assurance made by the respondent that the petitioner would be granted probation. "(u)pon arraignment. There was only an assurance that petitioner could apply for probation but there was no assurance that his application would be granted. He was made to understand the consequences of his plea. the same should be denied on the ground that to rule .otherwise known as the Probation Law of 1976. when the post-sentence investigation had not even started. Thus. although it is not yet executory pending resolution of the application for probation."11 The fact that he was merely assured by the prosecution that he could apply for probation if he pleaded guilty is no guarantee that his application for probation would consequently be approved by the court. in fact. Every accused must realize that he cannot attach a string or condition to his plea of guilty and. Considering that an application for probation is an admission of guilt on the part of the accused for the crime which led to the judgment of conviction. 12 It would indeed have been uncalled for and premature to give such an assurance in advance. the accused answered that he wanted to try smoking them. 1986. as amended. and the appellate court will not interfere with such discretion in the absence of abuse thereof. with the following ramification. even on the assumption that the judgment was not yet final. He was further asked whether he realized that by his plea of guilty he would be sentenced accordingly by this Court and again the accused answered in the affirmative. the judgment ipso factoattains finality. to wit: "Asked by the Court why he had in his possession these three sticks of marijuana cigarettes. It is thus clearly established that petitioner openly admitted that he was caught while in possession of three (3) sticks of marijuana cigarettes. dated June 11. the filing of the application for probation operates as a waiver of the right to appeal. the judgment having become final by the filing of the application for probation. that petitioner moved to withdraw his plea of guilty. 1986. Presidential Decree No.) It is clear that what the law requires is that the application for probation must be filed within the period for perfecting an appeal. as amended by Presidential Decree No. No. the trial court may. et al. . who are willing to be reformed and rehabilitated. 14 Equally devoid of merit is petitioner's contention that the filing of an application for probation suspends the running of the period for perfecting an appeal. Thus.D. and upon application by said defendant within the period for perfecting an appeal. People. there is no more opportunity for the accused to exercise his right to appeal. 968 by stating that the benefits of the Decree shall not be extended to those "sentenced to serve a maximum term of imprisonment of more than six years and one day. Batas Pambansa Big. suspend the execution of the sentence and place the defendant on probation for such period and upon such terms and conditions as it may deem best. 76 amended Section 9 of P. Grant of Probation. but it was only on September 15. 968. in 1985 then President Marcos promulgated Presidential Decree No." Subsequently. 4. The need to file it within such period was intended to encourage offenders. and the elucidation wherein we reiterate: The original Probation Law of 1976. 1986. The latest decree on the matter excludes . 1990. 968 provided in its Section 9 that "(t)he benefits of this Decree shall not be extended to those: a) sentenced to serve a minimum term of imprisonment of more than six years . 968. (Emphasis ours. As earlier noted. the judgment was promulgated on June 11. almost three (3) months later. — Subject to the provisions of this Decree. much less to withdraw a supposed improvident plea of guilty. was never intended to suspend the period for the perfection of an appeal.. 16 which likewise involved a violation of Section 8. . The last issue has already been resolved by the Court in Amandy vs.otherwise will not only depreciate the seriousness of the offense committed but will also subvert the ends of justice and the best interest of the community. 1990 which amended BP 76 and returned to the earlier formulation in P. Article II of Republic Act No. 6425. Provided. to avail of probation at the first opportunity." In 1980. Significantly. after it shall have convicted and sentenced a defendant. That no application for probation shall be entertained or granted if the defendant has perfected an appeal from its judgment of conviction. 1986 and became final on June 26. 15 Such provision.D. The pertinent portion of Section 4 of Presidential Decree No. provides: Sec. Yet.D.P. 968 wording.D. assuming that there is some truth in said surmise.D. and even a higher penalty. P. All told. both the Batasang Pambansa and the President could legislate on the same subject at the same time. In the two Presidential Decrees. 76 which extended to offenders penalized to suffer the penalty of 6 years and 1 day." It is apparent from the history of the provision in question that a disagreement on policy matters existed between the then President and the then legislature. . dura lex sed lex is the trite dictum which those caught in the toils of the law have to live with. It is suggested that petitioner's deprivation of the benefits of probation was a product of misunderstanding or miscommunication and that he would not have pleaded guilty had that amendment by Presidential Decree No. The supposed misprint is the exact dividing line between correctional penalties and afflictive penalties. 1990 merely went back to the P. 76 by reverting to P. . still even if he had not pleaded guilty the end result would have been the same. the latter issuance has to prevail. however. xxx xxx xxx The other argument that the omission of "one day" from P. a guilty verdict. This is P. P. 1986 is hereby LIFTED. the benefits of the Probation Law. From the judicial record. from what has been said and while one may empathize with petitioner's submission. including the changes therein and the misapprehensions thereon. the President was for denying probation to any one sentenced to imprisonment of more than six years.from the benefits of the Probation Law any applicant who has been "sentenced to serve a maximum term of imprisonment of more than six years. SO ORDERED. bound by the actual proceedings that transpired and not by what is represented to have been a party's intent. it amended B. Since under the unusual situation then existing. 1990 realizes the need to correct B. . was for amending the applicable term of imprisonment to more thansix years and one day. ACCORDINGLY. Thus. the petition at bar is hereby DISMISSED and the temporary restraining order issued pursuant to the Court's resolution of October 27.D. 1990 been brought to his attention. 1990 is the result of a misprint or inadvertence in the careless preparation of Presidential Decrees cannot be given serious consideration. . The Batasan. 968 such that only those sentenced to suffer correctional penalties shall be entitled to suspended sentences through probation.D.D. 1990. As stated by the Solicitor General.P. on the other hand. would have been a distinct probability. We are. did then and there willfully. being then the President of the National Home Mortgage and Finance Corporation. Asumbrado. conspiring and confederating with accused FAVIO D. acting with evident bad faith and manifest partiality and or gross neglect of duty.: The Case This is a petition for certiorari1 of the Resolutions dated 10 February 20042 and 3 May 20043 of the Sandiganbayan.. No. and by reason of accused’s misrepresentation. 25231.A. the NHMFC released the amount ofP4. the Special Prosecution Officer (SPO) II of the Office of the Ombudsman for Mindanao charged petitioner and his co-accused. Petitioner. The 10 February 2004 Resolution granted the prosecution’s Motion to Admit the Amended Information. enter and make it appear in Tax Declaration Nos. in the City of Davao. and ARTURO S. 2009 RAMON A.G. ASUMBRADO for (sic) violation of Section 3(e) R. T151920 and T-151921 are agricultural land. then the Project Director of CODE Foundation Inc. Inc. as accused well knew. Philippines and within the jurisdiction of this Honorable Court. ALBERT. a public officer. 3019. The 3 May 2004 Resolution denied the Motion For Reconsideration of petitioner Ramon A.R. ASUMBRADO. Respondents. committing the offense in relation to his office. committed as follows: That in (sic) or about May 1990 and sometime prior or subsequent thereto. vs. SAYSON.400.535. Albert (petitioner). T-151920 and T-151921 are residential lands which Tax Declarations accused submitted to the NHMFC when in truth and in fact. unlawfully and criminally cause undue injury to the government and public interest. while in the performance of his official function. as amended. occupying the said position with a salary grade above 27. Favio D. before the Sandiganbayan with violation of Section 3(e) of Republic Act No. D-3-1-7691 and D-3-1-7692 that two parcels of real property particularly described in the Certificate of Titles Nos. SAYSON. The Facts On 24 March 1999. The Information alleged: The undersigned Special Prosecution Officer II of the Office of the Ombudsman for Mindanao hereby accuses RAMON A. 3019 (RA 3019) or the Anti-Graft and Corrupt Practices Act in Criminal Case No. and accused ARTURO S. and THE PEOPLE OF THE PHILIPPINES. ALBERT. DECISION CARPIO. 164015 February 26.00 which is . Sayson and Arturo S. THE SANDIGANBAYAN. J. ALBERT. the two pieces of real property covered by Certificate of Titles Nos. FAVIO D. accused RAMON A. taking advantage of his official position. then the President of the Buhangin Residents and Employees Association for Development. in an Order dated 10 March 2003. this ex-parte motion was withdrawn by the prosecution with the intention of filing a Motion for Leave to Admit Amended Information.5 On 18 December 2000. CONTRARY TO LAW. the Sandiganbayan scheduled the arraignment of petitioner on 24 July 2003. (2) the Office of the Ombudsman did not acquire jurisdiction over the person of the accused. in view of the pending motion for reconsideration of the order of the Ombudsman." In the Resolution dated 16 April 2001. the Ombudsman.4 On 26 March 1999.6 On 12 March 2001. the prosecution filed an Ex-Parte Motion to Admit Amended Information. petitioner filed a Motion to Lift Hold Departure Order and to be Allowed to Travel. pending the resolution of the Motion to Dismiss. During the 2 October 2003 hearing. However. In a Manifestation dated 24 September 2003. The scheduled arraignment of petitioner was reset to 1 December 2003. the Sandiganbayan arraigned petitioner who entered a plea of "not guilty. the prosecution filed a Motion for Leave to Admit Amended Information. a Hold Departure Order was issued by the Sandiganbayan against petitioner and his co-accused. the SPO informed the Sandiganbayan of the Ombudsman’s denial of petitioner’s motion for reconsideration. On 26 November 2001. (3) the constitutional rights of the accused to a speedy disposition of cases and to a speedy trial were violated. The Amended Information reads: . However.7 On 7 October 2003. disapproved the Memorandum and directed the Office of the Special Prosecutor to proceed with the prosecution of the criminal case. On even date. petitioner filed a Motion to Dismiss Criminal Case No. petitioner filed an Urgent Motion to Amend Motion to Lift Hold Departure Order and to be Allowed to Travel. thus causing undue injury to the government. the arraignment was reset to 2 October 2003. The following day. In a Memorandum dated 6 January 2003. the Sandiganbayan granted petitioner’s Urgent Motion to Amend Motion to Lift Hold Departure Order and to be Allowed to Travel. On 25 May 1999. the Sandiganbayan denied petitioner’s Motion to Dismiss and ordered the prosecution to conduct a reinvestigation of the case with respect to petitioner. the SPO who conducted the reinvestigation recommended to the Ombudsman that the indictment against petitioner be reversed for lack of probable cause. or on 13 March 2001. In a Resolution promulgated on 16 May 2003. and (4) the resolution dated 26 February 1999 finding the accused guilty of violation of Section 3(e) of RA 3019 is not supported by evidence.higher than the loanable amount the land could command being agricultural. Petitioner filed a Motion for Reconsideration of the Order of the Ombudsman. The prosecution did not object to the latter motion on the condition that petitioner would be "provisionally" arraigned. 25231 on the following grounds: (1) the accused (petitioner) was denied due process of law. that there are three modes by which the offense for Violation of Section 3(e) may be committed in any of the following: 1. SAYSON. At the outset. committing the offense in relation to his office. and accused ARTURO S. then the Project Director of CODE Foundation Inc. It may be considered however. 3019. enter and make it appear in Tax Declaration Nos. alleging that the amendment made on the information is substantial and. Inc. while in the performance of his official function. it is not a requirement that such neglect or refusal causes undue injury compared to an information alleging gross inexcusable negligence where undue injury is a constitutive element.8 Petitioner opposed the motion. ALBERT. T-151920 and T-151921 are residential lands which Tax Declarations accused submitted to the NHMFC when in truth and in fact. A change to this effect constitutes substantial amendment considering that the possible defense of the accused may divert from the one originally intended. ASUMBRADO. accused RAMON A. committed as follows: That in (sic) or about May 1990 and sometime prior or subsequent thereto. and by reason of accused’s misrepresentation. ALBERT. a public officer.400. did then and there willfully. D-3-1-7691 and D-3-1-7692 that two parcels of real property particularly described in the Certificate of Titles Nos. The Ruling of the Sandiganbayan In its Resolution of 10 February 2004. the Sandiganbayan explained that "gross neglect of duty" which falls under Section 3(f) of RA 3019 is different from "gross inexcusable negligence" under Section 3(e). CONTRARY TO LAW. thus causing undue injury to the government. not allowed after arraignment. being then the President of the National Home Mortgage and Finance Corporation. then the President of the Buhangin Residents and Employees Association for Development. as amended. Philippines and within the jurisdiction of this Honorable Court. SAYSON. .The undersigned Special Prosecution Officer I of the Office of Special Prosecutor.00 which is higher than the loanable amount the land could command being agricultural. as accused well knew. the two pieces of real property covered by Certificate of Titles Nos. the NHMFC released the amount ofP4. hereby accuses RAMON A. acting with evident bad faith and manifest partiality and/or gross inexcusable negligence. and held thus: In an information alleging gross neglect of duty.. occupying the said position with a salary grade above 27. therefore. conspiring and confederating with accused FAVIO D.9 the Sandiganbayan granted the prosecution’s Motion to Admit Amended Information. unlawfully and criminally cause undue injury to the government and public interest.A. in the City of Davao. FAVIO D. Through evident bad faith. taking advantage of his official position. T-151920 and T-151921 are agricultural land. ASUMBRADO for (sic) violation of Section 3(e) R. and ARTURO S.535. Amendment or Substitution. WHETHER THE SANDIGANBAYAN GRAVELY ABUSED ITS DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN FURTHER PROCEEDING WITH THE CASE DESPITE THE VIOLATION OF THE RIGHT OF THE ACCUSED TO A SPEEDY TRIAL. at any time before the accused enters his plea. Since petitioner already .2. Petitioner filed a Motion for Reconsideration. without leave of court.-. which was denied by the Sandiganbayan in its Resolution of 3 May 2004. Through gross inexcusable negligence. 3." then the prosecution may still amend the information either in form or in substance. The Issues The issues raised in this petition are: 1. 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. only a formal amendment of the information may be made after a plea. WHETHER THE SANDIGANBAYAN GRAVELY ABUSED ITS DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN ADMITTING THE AMENDED INFORMATION.A complaint or information may be amended. Through manifest partiality. the Sandiganbayan also held that even granting that the amendment of the information be formal or substantial. And since the arraignment of petitioner on 13 March 2001 was merely "provisional.10 However. Proof of the existence of any of these modes in connection with the prohibited acts under said section of the law should suffice to warrant conviction. On Whether the Sandiganbayan Should Admit the Amended Information Section 14 of Rule 110 of the Revised Rules of Criminal Procedure provides: Sec. AND 2. Hence this petition. xxx Petitioner contends that under the above section. in form or in substance. 14. After the plea and during the trial. The Ruling of the Court The petition has no merit. the prosecution could still effect the same in the event that the accused had not yet undergone a permanent arraignment. The rule does not distinguish between a plea made during a "provisional" or a "permanent" arraignment. . then the information may be amended only in form. the setting up of additional bailbond. an accused.15 In the present case. The Motion to Travel is granted subject to the usual terms and conditions imposed on accused persons travelling (sic) abroad. petitioner refers to the 10 February 2004 Resolution of the Sandiganbayan which ruled that the change "constitutes substantial amendment considering that the possible defense of the accused may divert from the one originally intended. to which he enters a plea of guilty or not guilty. following the doctrine laid down in Espinosa. the conditions must be expressly stated in the Order disposing of the arraignment. an arraignment cannot be regarded lightly or brushed aside peremptorily. the required appearance before the clerk of court."16 In the Resolution of 16 April 2001. setting forth the conditions attendant thereto which."18lawphil.13 However.12 The practice of the Sandiganbayan of conducting "provisional" or "conditional" arraignments is not sanctioned by the Revised Internal Rules of the Sandiganbayan or by the regular Rules of Court. only a formal amendment of the Information may be made but with leave of court and only if it does not prejudice the rights of the accused.entered a plea of "not guilty" during the 13 March 2001 arraignment." evidence he was not required to present under the original information. he has to present evidence that he did not act with "gross inexcusable negligence. and written advice to the court upon return to the Philippines.net We are not convinced.17 the Sandiganbayan mentioned the arraignment of petitioner and granted his Urgent Motion to Amend Motion to Lift Hold Departure Order and to be Allowed to Travel.11 The accused is formally informed of the charges against him. As an indispensable requirement of due process. the arraignment of petitioner is reflected in the Minutes of the Sandiganbayan Proceedings dated 13 March 2001 which merely states that the "[a]ccused when arraigned entered a plea of not guilty. the arraignment should be deemed simple and unconditional. Nothing on record is indicative of the provisional or conditional nature of the arraignment. otherwise. To bolster his argument." Moreover. informed and enlightened. Petitioner contends that replacing "gross neglect of duty" with "gross inexcusable negligence" is a substantial amendment of the Information which is prejudicial to his rights. Hence. The rules mandate that after a plea is entered.14 this Court tangentially recognized such practice. An arraignment is that stage where in the mode and manner required by the rules. however. Espinosa. is granted the opportunity to know the precise charge that confronts him. provided that the alleged conditions attached thereto should be "unmistakable. for the first time. He asserts that under the amended information. were limited only to petitioner’s itinerary abroad. the arraignment of petitioner should be deemed simple and unconditional. in People v. express. as when the accused committed gross inexcusable negligence." "evident bad faith.24 "Gross inexcusable negligence" refers to negligence characterized by the want of even the slightest care." Simply. that is. with conscious indifference to consequences insofar as other persons may be affected. including the government. Corrupt practices of public officers.Petitioner is charged with violation of Section 3(e) of RA 3019 which provides as follows: SEC. or gave any private party unwarranted benefits. not inadvertently but willfully and intentionally. There is "manifest partiality" when there is a clear. or plain inclination or predilection to favor one side or person rather than another. the . 3.23 "Evident bad faith" contemplates a state of mind affirmatively operating with furtive design or with some motive or self-interest or ill will or for ulterior purposes. advantage or preference in the discharge of his functions. This provision shall apply to officers and employees of offices or government corporations charged with the grant of licenses or permits or other concessions. He must have acted with manifest partiality. This crime has the following essential elements:19 1. evident bad faith or gross inexcusable negligence. The second element provides the different modes by which the crime may be committed. People. and 3.21 this Court explained that Section 3(e) of RA 3019 may be committed either by dolo. advantage or preference in the discharge of his official. or giving any private party any unwarranted benefits. including the Government. alleges that petitioner acted with "evident bad faith and manifest partiality and/or gross inexcusable negligence. 2. notorious. judicial or official functions. through "manifest partiality. evident bad faith or gross inexcusable negligence." or "gross inexcusable negligence.— In addition to acts or omissions of public officers already penalized by existing law. as when the accused acted with evident bad faith or manifest partiality.22 "Evident bad faith" connotes not only bad judgment but also palpably and patently fraudulent and dishonest purpose to do moral obliquity or conscious wrongdoing for some perverse motive or ill will."20 In Uriarte v.25 The original information filed against petitioner alleged that he acted with "evident bad faith and manifest partiality and or (sic) gross neglect of duty. acting or omitting to act in a situation where there is a duty to act. His action caused any undue injury to any party. administrative or judicial functions through manifest partiality. the following shall constitute corrupt practices of any public officer and are hereby declared to be unlawful: xxx (e) Causing any undue injury to any party. on the other hand." The amended information. The accused must be a public officer discharging administrative. or by culpa. this Court held that the said section is committed by dolo or culpa. Thus. would no longer be available after the amendment is made. Nonetheless.30 In so ruling. but specified only "manifest partiality" and "evident bad faith" as the modalities in the commission of the offense charged. would be inapplicable to the complaint or information as amended. the amendment entails the deletion of the phrase "gross neglect of duty" from the Information.28 As a replacement. recommended that the case against petitioner be dismissed for lack of probable cause. In Sistoza v. as it originally stood. this Court applied by analogy the pronouncement in Cabello v. therefore.29 the Information charged the accused with violation of Section 3(e) of RA 3019. the other mode is deemed included in the accusation to allow proof thereof. "gross inexcusable negligence" would be included in the Information as a modality in the commission of the offense.27lavvphil In this case. we hold that the inclusion of "gross inexcusable negligence" in the Information. and although the Information may have alleged only one of the modalities of committing the offense. the SPO. On Whether Petitioner’s Right to a Speedy Trial was Violated Petitioner contends that the complaint-affidavit against him was filed on 15 June 1992. Desierto. A Motion for Leave to Admit Amended Information was later filed by the prosecution and granted by the Sandiganbayan in the . This Court believes that the same constitutes an amendment only in form.26 On the other hand. "gross neglect of duty" is under Section 3(f) while "gross inexcusable negligence" is under Section 3(e) of the statute—the question remains whether or not the amendment is substantial and prejudicial to the rights of petitioner." Given that these two phrases fall under different paragraphs of RA 3019—specifically.amendment seeks to replace "gross neglect of duty" with "gross inexcusable negligence. Four (4) years thereafter. which merely alleges "manifest partiality" and "evident bad faith" as modalities in the commission of the crime under Section 3(e) of RA 3019. "Gross inexcusable negligence" was not mentioned in the Information. the same is allowable even after arraignment and plea being beneficial to the accused. upon reinvestigation of the case. an amendment which merely states with additional precision something which is already contained in the original information and which. and when any evidence the accused might have. adds nothing essential for conviction for the crime charged is an amendment to form that can be made at anytime. is an amendment in form. The test as to when the rights of an accused are prejudiced by the amendment of a complaint or information is when a defense under the complaint or information. The Court held that a conviction for a criminal negligent act can be had under an information exclusively charging the commission of a willful offense upon the theory that the greater includes the lesser offense. Sandiganbayan31where an accused charged with willful malversation was validly convicted of the same felony of malversation through negligence when the evidence merely sustained the latter mode of perpetrating the offense. Although this may be considered a substantial amendment. but it was resolved by the Office of the Ombudsman-Mindanao only on 26 February 1999. or after a period of almost seven (7) years. but this recommendation was denied by the Ombudsman. is deemed violated only when the proceeding is attended by vexatious. or when unjustified postponements of the trial are asked for and secured. The Sandiganbayan properly held that a reinvestigation of the case as to petitioner was in order. oppressive. The right of an accused to a speedy trial is guaranteed under Section 16. we DISMISS the petition.R. No. 1992 . WHEREFORE.32 A simple mathematical computation of the period involved is not sufficient. and was duly addressed by the Sandiganbayan in its Resolution denying the said motion. We concede that judicial proceedings do not exist in a vacuum and must contend with the realities of everyday life. Thus. Although the reinvestigation inadvertently resulted to further delay in the proceedings. or when without cause or justifiable motive a long period of time is allowed to elapse without the party having his case tried. 25231. and that no actual preliminary investigation was conducted on petitioner. or administrative bodies. It is well-settled that although the conduct of an investigation may hold back the progress of a case. It appears that the said delays were caused by the numerous motions for extension of time to file various pleadings and to reproduce documents filed by petitioner’s co-accused. quasi-judicial. petitioner maintains that it took the Office of the Ombudsman twelve (12) years since the initial filing of the complaint-affidavit in 1992 to charge accused with the offense under the Amended Information." This right. We AFFIRM the Resolutions dated 10 February 2004 and 3 May 2004 of the Sandiganbayan in Criminal Case No. Hence.questioned Resolution of 10 February 2004. SO ORDERED. capricious. Rule 117 G. and oppressive delays. petitioner’s contention of violation of his right to a speedy trial must fail. or unjustified. capricious. in violation of petitioner’s right to a speedy trial. we believe that the right of petitioner to a speedy trial was not infringed upon.34 The succeeding events appear to be parts of a valid and regular course of judicial proceedings not attended by delays which can be considered vexatious. 103102 March 6. Petitioner’s contentions are futile. The issue on the inordinate delay in the resolution of the complaint-affidavit filed against petitioner and his co-accused and the filing of the original Information against petitioner was raised in petitioner’s Motion to Dismiss. Article III of the Philippine Constitution which provides: "All persons shall have the right to a speedy disposition of their cases before all judicial. this process could not have been dispensed with as it was done for the protection of the rights of petitioner himself.33 After reviewing the records of the case. it is necessary so that the accused's right will not be compromised or sacrificed at the altar of expediency. however. Consequently.. which ordinarily would have caused the death of said Maureen Navarro Hultman. petitioner principally seeks: (1) to nullify the order 1 of respondent judge admitting the amended information for murder filed in Criminal Case No. J. prohibition and mandamus." and (5) to compel respondent judge to order preliminary investigation of the crime charged in the amended information. due to the timely and able medical assistance rendered to said Maureen Navarro Hultman which prevented her death.: In this special civil action for certiorari. the above-named accused. 4 filed on October 31. Metro Manila. Philippines. private prosecutor Rogelio A. REGALADO. in the Municipality of Makati. Philippines and within the jurisdiction of this Honorable Court. treachery and evident premeditation. Vinluan filed an omnibus motion leave of court to file an amended information and to admit said amended information. thereby inflicting gunshot wounds. Javier. After the prosecution had rested its case. armed with a handgun. MADAYAG and PEOPLE OF THE PHILIPPINES. petitioner. TEEHANKEE. did then and there willfully. JR. and feloniously attack. the said Claudio Teehankee. HON. (4) to prohibit respondent judge from "over-speedy and preferential scheduling of the trial of the aforementioned criminal case. thereby performing all the acts of execution which would have produced the crime of Murder as a consequence. before the said motion could be filed. (3) to nullify the appointment of a counsel de oficio/PAO lawyer to represent petitioner. Maureen Navarro Hultman died. Jr. JOB B. 91-4606. that is. while armed with a handgun. However. petitioner was allowed to file a motion for leave to file a demurrer to evidence. with intent to kill. 1991. 1991. respondents. assault and shoot one Maureen Navarro Hultman on the head. did then and there willfully. The amended information. vs. (2) to nullify the arraignment and the plea of not guilty entered by order of respondent judge when petitioner refused to be arraigned on the amended information for lack of preliminary investigation therefor. unlawfully. unlawfully and feloniously . Metro Manila. y. Petitioner was originally charged on July 19. with intent to kill and evident premeditation and by means of treachery. 1991 in an information of frustrated murder allegedly committed as follows: 2 for the crime That on or about the 13th day of July 1991.CLAUDIO J. reads: 3 for That on or about the 13th day of July. in the Municipality of Makati. but nevertheless did not produce it by reason of cause or causes independent of her will. and within the jurisdiction of this Honorable Court. I. Petitioner now raises the following issues before us: (a) Whether or not an amended information involving a substantial amendment. . assault and shoot with the said handgun Maureen Navarro Hultman who was hit in the head. that is. . may legally and validly be admitted. assault and shoot with the said handgun Maureen Navarro Hultman who was hit in the head. as well as a rejoinder 6 to the reply 7 of the prosecution. petitioner refused to be arraigned on the amended information for lack of a preliminary investigation thereon. the trial court issued the questioned order admitting the amended information. On November 13. unlawfully and feloniously attack. and (c) Whether or not a particular criminal case may legally and validly be rushed and preferentially scheduled for trial over and at the expense and sacrifice of other. thereby inflicting mortal wounds which directly caused the death of said Maureen Hultman. (b) Whether or not a counsel de oficio may legally and validly be appointed to represent an accused who is represented by counsel of choice who refuses to participate in the proceedings because of a perceived denial of due process and after a plea for appellate remedies within a short period is denied by the trial court." constitutes a substantial amendment since it involves a change in the nature of the offense charged. thereby inflicting mortal wounds which directly caused the death of said Maureen Hultman . Thereafter. respondent judge ordered that a plea of "not guilty" be entered for petitioner. without preliminary investigation. the Court has decided to dispense with the aforesaid comment to obviate needless delay in fairness to petitioner. from frustrated to consummated murder. . Petitioner avers that the additional allegation in the amended information. 1991. When petitioner's counsel manifested that he would not take part in the proceedings because of the legal issue raised. At the scheduled arraignment on November 26. 1991. that the accused ". as herein underscored. criminal cases.attack. respondent judge ordered the prosecution to present its evidence. did then and there willfully. the trial court appointed a counsel de oficio to represent herein petitioner. It appearing from a further review of the record that the operative facts and determinant issues involved in this case are sufficiently presented in the petition and the annexes thereto. Petitioner further submits that "(t)here is . 8 In our resolution of January 14. . By reason of such refusal. both in regard to the respective positions of petitioner and respondents. specially older. 1992. after the prosecution has rested on the original information. we required the Solicitor General to file a comment to the basic petition. Petitioner filed an opposition 5 thereto. 2." 9 From this. it is essential that another preliminary investigation on the new charge be conducted before the new information can be admitted. because it could have been caused by a supervening act or fact which is not imputable to the offender. but substitution of information must be with leave of court as the original information has to be dismissed. involving as it does a new fact. Amendment before plea has been entered can be effected without leave of court. Section 14. that is. 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. petitioner then postulates that since the amended information for murder charges an entirely different offense. Corollary thereto. the fact of death whose cause has to be established. The first paragraph provides the rules for amendment of the information or complaint. when the same can be done without prejudice to the rights of the accused. while the second paragraph refers to the substitution of the information or complaint. the same may no longer be allowed after arraignment and during the trial. while substitution necessarily involves a substantial change from the original charge. 3. 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. in substance or form. We find no merit in the petition. which were initially frustrated (sic) by timely and able medical assistance. there is no need for another preliminary investigation and the retaking of the plea of the accused. he argues that there being a substantial amendment. Where the amendment is only as to form. — The information or complaint may be amended. ultimately caused the death of the victim. It may accordingly be posited that both amendment and substitution of the information may be made before or after the defendant pleaded. There are sufficient legal and jurisprudential moorings for the orders of the trial court. but they differ in the following respects: 1. 14. and thereafter and during the trial as to all matters of form. by leave and at the discretion of the court. Amendment.a need then to establish that the same mortal wounds. Section 11. at any time before the accused pleads. Rule 110 of the 1985 Rules on Criminal Procedure provides: Sec. without leave of court. in substitution . Amendment may involve either formal or substantial changes. This is being the case. whether there should be an amendment under the first paragraph of Section 14. be alleged in both an information for frustrated murder and for murder. Rule 110. a substitution is in order. What is involved here is not a variance in the nature of different offenses charged. It is indispensable that the essential element of intent to kill. that the additional allegation on the fact of death of the victim Maureen Navarro Hultman constitutes a substantial amendment which . however. or a substitution of information under the second paragraph thereof. On the other hand. the offense charged in the first information. 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. thereby meaning and proving that the same material allegations are essential to the sufficiency of the informations filed for both. And. 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. therefore. an offense may be said to necessarily include another when some of the essential elements or ingredients of the former. we hold that an amendment of the original information will suffice and. otherwise. the essential elements of consummated murder likewise constitute the essential ingredients to convict herein petitioner for the offense of frustrated murder. hence the former is necessarily included in the latter.of information. 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. or when it necessarily includes or is necessarily included in. the filing of the amended information for murder is proper. the rule is that where the second information involves the same offense. but only a change in the stage of execution of the same offense from frustrated to consummated murder. 10 Going now to the case at bar. 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. there is an identity of offenses charged in both the original and the amended information. except for the death of the victim. hence substantial amendments to the information after the plea has been taken cannot be made over the objection of the accused. Petitioner would insist. hence the accused cannot claim double jeopardy. for if the original information would be withdrawn. consequent thereto. where the new information charges an offense which is distinct and different from that initially charged. and amendment of the information is sufficient. In the present case. therefore. or when the second offense is an attempt to commit or a frustration of. as well as qualifying circumstances such as treachery or evident premeditation. constitute the latter. or an offense which necessarily includes or is necessarily included in the first information. In determining. vice-versa. In this connection. the accused could invoke double jeopardy. another preliminary investigation is entailed and the accused has to plead anew to the new information. This is because. as this is alleged in the information. and 4. it is evident that frustrated murder is but a stage in the execution of the crime of murder. or when the second offense is exactly the same as the first. an additional allegation. There is no question that whatever defense herein petitioner may adduce under the original information for frustrated murder equally applies to the amended information for murder. it is irremissible that the amended information for murder is. and to be protected from an open and public accusation of a crime. may be made at any time before the accused enters a plea to the charge and. but only as to matters of form andprovided that no prejudice is caused to the rights of the accused. 14 We repeat that after arraignment and during the trial. 12 (2) an amendment which does not charge another offense different or distinct from that charged in the original one. malicious and oppressive prosecutions. and (4) an amendment which does not adversely affect any substantial right of the accused. as to all matters of form with leave of court. if the answer is in the affirmative. A substantial amendment consists of the recital of facts constituting the offense charged and determinative of the jurisdiction of the court.may no longer be allowed after a plea has been entered. at most. 16 Now. Under the circumstances thus obtaining. thereafter. viz: (1) new allegations which relate only to the range of the penalty that the court might impose in the event of conviction. if the crime originally charged is related to the amended charge such that an inquiry into one would elicit . expenses and anxiety of a public trial. a preliminary investigation is unnecessary and cannot be demanded by the accused. 15 The test of whether an amendment is only of form and an accused is not prejudiced by such amendment has been said to be whether or not a defense under the information as it originally stood would be equally available after the amendment is made. It consequently follows that since only a formal amendment was involved and introduced in the second information. Instead. The proposition is erroneous and untenable. such as his right to invoke prescription. The filing of the amended information without the requisite preliminary investigation does not violate petitioner's right to be secured against hasty. the following have been held to be merely formal amendments. as well as from the trouble. that is. 13 (3) additional allegations which do not alter the prosecution's theory of the case so as to cause surprise to the accused and affect the form of defense he has or will assume. either of form or substance. as we have heretofore held. the amendment is one of form and not of substance. All other matters are merely of form. The amended information could not conceivably have come as a surprise to petitioner for the simple and obvious reason that it charges essentially the same offense as that charged under the original information. That the accused committed a felonious act with intent to kill the victim continues to be the prosecution's theory. the supervening fact of the death of the victim was merely supplied to aid the trial court in determining the proper penalty for the crime. amendments are allowed. Furthermore. 11 Thus. an amendment as to form which is allowed even during the trial of the case. and whether or not any evidence the accused might have would be equally applicable to the information in the one form as in the other. Section 14 of Rule 110 provides that an amendment. an objective appraisal of the amended information for murder filed against herein petitioner will readily show that the nature of the offense originally charged was not actually changed. As earlier indicated. WHEREFORE. 1998] PETER PAUL DIMATULAC and VERONICA DIMATULAC. for as long as the substantial rights of herein petitioner and other persons charged in court are not prejudiced.. children of the deceased Police Officer 3 (PO3) Virgilio Dimatulac of Masantol. respondents. SERVILLANO YABUT.substantially the same facts that an inquiry into the other would reveal. JR. No. TEOFISTO GUINGONA.petitioners. J. the extraordinary writs prayed for are hereby DENIED and the instant petition is DISMISSED for lack of merit. a new preliminary investigation is not necessary. prohibition and mandamusunder Rule 65 of the Rules of Court filed by petitioners. the scheduling of cases should be left to the sound discretion of the trial court. may be summarized as follows: A. vs.: The issues raised by petitioners in their Memorandum[1] and by the Office of the Solicitor General in its Comment[2] in this special civil action for certiorari. SO ORDERED. it being clearly apparent that respondent judge did not commit the errors speciously attributed to him. Pampanga. October 12. WHETHER PUBLIC RESPONDENT JUDGE ACTED IN EXCESS OF JURISDICTION IN PROCEEDING WITH THE ARRAIGNMENT AND IN DENYING PETITIONERS’ MOTIONS TO SET ASIDE ARRAIGNMENT AND RECONSIDERATION THEREOF DESPITE HIS KNOWLEDGE OF THE PENDENCY OF THE APPEAL AND THE SUBMISSION OF VITAL . HON. 17 We find nothing irregular in the appointment by the trial court of a counsel de oficio for herein petitioner whose counsel of record refused to participate in the proceedings because of an alleged legal issue. HON. in his capacity as Secretary of Justice. and (2) FILING THE INFORMATION FOR HOMICIDE DESPITE KNOWLEDGE OF THE APPEAL FROM SAID PROSECUTOR’S RESOLUTION TO THE OFFICE OF THE SECRETARY OF JUSTICE. DECISION DAVIDE. B. 127107.R. SESINANDO VILLON in his capacity as Presiding Judge of the Regional Trial Court of Pampanga. [G. we apprehend his refusal to participate in the trial as causative of or contributive to the delay in the disposition of the case. finally. MAYOR SANTIAGO YABUT. And. Such issue having been demonstrated herein as baseless. WHETHER THE OFFICE OF THE PROVINCIAL PROSECUTOR COMMITTED GRAVE ABUSE OF DISCRETION IN: (1) GIVING DUE COURSE TO THE MOTION FOR REINVESTIGATION BY PRIVATE RESPONDENTS AGAINST WHOM WARRANTS OF ARREST WERE ISSUED BUT WHO HAD NOT YET BEEN BROUGHT INTO THE CUSTODY OF THE LAW. Branch 54. MARTIN YABUT and FORTUNATO MALLARI. Aniano Magnaye. Pampanga for the purpose of looking for a certain PO3 Virgilio Dimatulac. Pampanga inquiring about PO3 Virgilio Dimatulac. David of the MCTC issued warrants for the arrest of the accused and directed them to file their counter-affidavits. Evelino David. His findings of fact and conclusions were as follows: That on or about November 3.” The complaint was docketed as Criminal Case No. 1995. SPO3 Gilberto Malabanan. Francisco Yambao. until finally. some of the accused descended from the truck and positioned themselves around . Pampanga. WHETHER PUBLIC RESPONDENT SECRETARY OF JUSTICE COMMITTED GRAVE ABUSE OF DISCRETION IN RECONSIDERING HIS ORDER FINDING THAT THE CRIME COMMITTED WAS MURDER AND DIRECTING THE PROVINCIAL PROSECUTOR TO AMEND THE INFORMATION FROM HOMICIDE TO MURDER. On 5 November 1995. Vladimir Yumul. while only Francisco Yambao submitted his counter affidavit. Casti David.” and a certain “Koyang/Arding. 95-360 finding reasonable ground to believe that the crime of murder had been committed and that the accused were probably guilty thereof.EVIDENCE TO PROVE THAT MURDER AND NOT HOMICIDE WAS COMMITTED BY THE ACCUSED. stopped and parked in front of the house of said PO3 Virgilio Dimatulac. Upon reaching the house of PO3 Virgilio Dimatulac. including two John Does identified only as Dan/Danny and Koyang/Arding. Only accused Evelino David. Joselito Miranda. Fortunato Mallari. 95-360. Pampanga. The records and the pleadings of the parties disclose the antecedents. Masantol. went to Masantol. the truck the accused were all riding. Jesus de la Cruz. Thereafter. Justino Mandap. Masantol. after appropriate proceedings. Justino Mandap. went to the Municipal Hall of Masantol. the accused.[3] On 1 December 1995. C. and finding probable cause. a certain “Danny. they went to the house of Mayor Lacap for the purpose of inquiring [about] the [the location of the] house of PO3 Virgilio Dimatulac. Servillano Yabut. a complaint for Murder was filed before the Municipal Circuit Trial Court (MCTC) of Macabebe-Masantol in Macabebe. Judge Designate Serafin B. At first. Juan Magat and Francisco Yambao were arrested. On 3 November 1995. they were able to reach the house of said Virgilio Dimatulac at San Nicolas. SPO3 Virgilio Dimatulac was shot dead at his residence in Barangay San Nicolas. all the accused under the leadership of Mayor Santiago “Docsay” Yabut. Juan Magat. Martin Yabut. by SPO1 Renato Layug of the Masantol Police Station against private respondents Mayor Santiago Yabut. Judge David issued a Resolution[4] in Criminal Case No. Pampanga. riding on [sic] a truck. Arturo Naguit. After conducting a preliminary examination in the form of searching questions and answers. The court. Accused Billy Yabut. the son of Virgilio Dimatulac. and before he expired. started to shout the following words: “What did you do to my father?!” One of the men of Mayor “Docsay” Yabut shot Virgilio Dimatulac. Circumstantial evidence strongly shows the presence of conspiracy. the court directed the police authorities to furnish the court [a] descriptio personae of the accused for the purpose of issuing the needed warrant of arrest. Catoy Naguit.the house while others stood by the truck and the Mayor stayed [in] the truck with a bodyguard. Peter Paul. he left a dying declaration pointing to the group of Mayor “Docsay” Yabut as the one responsible. accused Santiago “Docsay” Yabut gave money to accused John Doe Dan/Danny and Francisco “Boy” Yambao was asked to bring the accused John Doe to Nueva Ecija which he did. [W]hen Virgilio Dimatulac went down from his house. Francisco Yambao. Martin Yabut. accused “Docsay” Yabut ordered his men to go on board the truck and immediately left away leaving Virgilio Dimatulac bleeding and asking for help. . with respect to accused Dan/Danny and Koyang/Arding. Servillano Yabut. [is] satisfied that there is a [sic] reasonable ground to believe that the crime of murder was committed and that the accused in conspiring and confederating with one another are probably guilty thereof. That in order not to frustrate the ends of justice. That right after Virgilio Dimatulac was shot. However. Fortunato Mallari. [A]ccused Yabut brothers (Kati and Billy) strongly suggested to Virgilio Dimatulac to go down to see the Mayor outside in front of his house to say sorry. suddenly [a] gun shot was heard and then. Kati Yabut and Francisco Yambao went inside the house of Virgilio Dimatulac [and] were even offered coffee. Boy dela Cruz. Further. warrants of arrest were issued against Santiago Yabut. after having conducted preliminary examination on the complainant and the witnesses presented. Lito Miranda and Juan Magat with no bail recommended. Avelino David. The accused were furnish [sic] copies of the complaint and affidavits of witnesses for them to file their counter-affidavits in accordance to [sic] law. On their way home to Minalin. Casti David. he died. and as a consequence. accused Santiago “Docsay” Yabut told his group to deny that they ever went to Masantol. Servillano Yabut and Martin Yabut (hereafter YABUTs). WHEREFORE. he was sure it was one of Mayor Yabut’s companions.00 for his provisional liberty. However. three men approached him and asked for directions to the house of Mayor Epifanio Lacap.m. premises considered. against the Mayor. In his Sinumpaang Salaysay. Peter Paul opined that his father was killed because the latter spoke to the people of Minalin. together with the bodies of accused Francisco Yambao and Juan Magat to be remanded to the provincial Jail of Pampanga. to which Soriano replied that Dimatulac was at home. Pampanga Assistant Provincial Prosecutor Sylvia Q. Servillano and Martin Yabut told Virgilio to come down from his house and apologize to the Mayor. Pampanga. went to the residence of PO3 Virgilio Dimatulac to talk about a problem between the Mayor and Peter Paul’s uncle. but one of the three returned to ask whether PO3 Virgilio Dimatulac was on duty.As of this date. except accused . Pampanga. Pampanga. Later that day. the evidence of guilt against him is rather weak [compared to] the others. while he was at the police station.[5] (underscoring supplied) In a sworn statement. the Clerk of Court is directed to forward the entire records of the case to the Office of the Provincial Prosecutor of Pampanga for further action.000. declared that on 3 November 1995. A close evaluation of the evidence submitted by the accused Francisco Yambao which the court finds it [sic] straightforward and more or less credible and seems to be consistent with truth.[6] petitioner Peter Paul Dimatulac narrated that Mayor Santiago Yabut. Peter Paul added in a supplemental statement (Susog na Salaysay)[7] that he heard Mayor Yabut order Virgilio killed. it is not clear from the record whether she conducted the same motu proprio or upon motion of private respondents Santiago Yabut. The group left after Soriano gave them directions. Pampanga. All of the accused who had not submitted their counter-affidavits before the MCTC. While Peter Paul did not see who fired the shot. accompanied by a number of bodyguards.. and the court’s previous order of no bail for said accused is hereby reconsidered. SPO2 Michael Viray received a telephone call at the police station reporting that someone had shot Virgilio Dimatulac. The group left on board a military truck headed for San Nicolas. Jun Dimatulac. but hardly had Virgilio descended when Peter Paul heard a gunshot. only accused Francisco “Boy” Yambao filed his counter-affidavit and all the others waived the filing of the same. between 3:30 and 4:00 p. Masantol.[8] Police Officer Leopoldo Soriano of the Masantol Municipal Police Station in Masantol. Virgilio warmly welcomed the group and even prepared coffee for them. which [is why] the court recommends a cash bond of P50. human nature and [the] natural course of things and lack of motives [sic]. Soriano recognized one of the men as SPO1 Labet Malabanan of Minalin. Thereafter. Alfonso-Flores conducted a reinvestigation. “Danny” and “Koyang/Arding,” submitted their counter-affidavits to Assistant Provincial Prosecutor Alfonso Flores. In her Resolution dated 29 January 1996,[9] Assistant Provincial Prosecutor AlfonsoFlores found that the YABUTs and the assailant Danny, to the exclusion of the other accused, were in conspiracy with one another, but that the offense committed was only homicide, not murder. In support of such finding, Alfonso-Flores reasoned thus: The complainant in this case charges the crime of Murder qualified by treachery. It must be noted that to constitute treachery, two conditions must be present, to wit, 1) the employment of the [sic] means of execution were give [sic] the person attacked no opportunity to defend himself or to retaliate; and 2) the means of execution were deliberately or consciously adopted xxx. In the instant case, the presence of the first requisite was clearly established by the evidence, such that the attack upon the victim while descending the stairs was so sudden and unexpected as to render him no opportunity to defend himself or to retaliate. However, the circumstances, as portrayed by witness Peter Paul Dimatulac, negate the presence of the second requisite. According to the said witness, the victim was already descending when Mayor Yabut commanded the assailant to shoot him, and immediately thereafter, he heard the gunshot. This would therefore show that the assailant did not consciously adopt the position of the victim at the time he fired the fatal shot. The command of Mayor Yabut to shoot came so sudden as to afford no opportunity for the assailant to choose the means or method of attack. The act of Mayor Yabut in giving the command to shoot further bolster[s] the fact that the conspirator did not concert the means and method of attack nor the manner thereof. Otherwise there would have been no necessity for him to give the order to the assailant. The method and manner of attack was adopted by the assailant at the spur of the moment and the vulnerable position of the victim was not deliberately and consciously adopted. Treachery therefore could not be appreciated and the crime reasonably believe[d] to have been committed is Homicide as no circumstance would qualify the killing to murder. Alfonso-Flores then ruled: WHEREFORE, in view of the foregoing, it is hereby recommended that: 1. An information be filed with the proper court charging Santiago, Servillano and Martin all surnamed Yabut, and one John Doe alias Danny as conspirators in the crime of Homicide; 2. The case be dismissed against accused Evelino David, Justino Mandap a.k.a. Casti David, Francisco Yambao, Juan Magat, Arturo Naguit, Bladimir Dimatulac, Fortunato Mallari, Aniano Magnaye, Gilberto Malabanan, Jesus dela Cruz and Joselito Miranda. Bail of P20,000.00 for each of the accused is likewise recommended. The Resolution discloses that Alfonso-Flores conducted a hearing on 11 January 1996 and clarificatory questions were propounded only to Peter Paul Dimatulac. On 23 February 1996, before the Information for homicide was filed, complainants, herein petitioners, appealed the resolution of Alfonso-Flores to the Secretary of the Department of Justice (DOJ).[10] They alleged in their appeal that: 1. THE ASSISTANT PROVINCIAL PROSECUTOR NOT ONLY ERRED IN RULING THAT THERE WAS NO TREACHERY TO QUALIFY THE CRIME TO MURDER, BUT LIKEWISE ERRED IN NOT APPRECIATING THE PRESENCE OF OTHER QUALIFYING CIRCUMSTANCES, TO WIT: A. THAT THE ACCUSED COMMITTED THE CRIME WITH THE AID OF ARMED MEN AND WITH THE USE OF A PERSON TO INSURE OR AFFORD IMPUNITY; B. THAT THE CRIME WAS COMMITTED IN CONSIDERATION OF A PRICE, REWARD, OR PROMISE; C. THAT THE CRIME WAS COMMITTED ON THE OCCASION OF A DESTRUCTIVE CYCLONE, WHEN THE SUPER-TYPHOON “ROSING” WAS RAGING ON NOVEMBER 3, 1995; D. THAT THE CRIME WAS COMMITTED WITH EVIDENT PREMEDITATION; 2. THAT THE HONORABLE INVESTIGATING ASSISTANT PROSECUTOR ERRED IN DISMISSING THE COMPLAINT AGAINST FORTUNATO MALLARI AND FRANCISCO YAMBAO BY RULING OUT CONSPIRACY WITH THE YABUT BROTHERS AS AGAINST FORTUNATO MALLARI AND NOT CHARGING FRANCISCO YAMBAO AS AN ACCESSORY TO MURDER. To refute Alfonso-Flores’ finding that the means of execution were not deliberately adopted, petitioners asserted that the meeting of the accused and the victim was not accidental as the former purposely searched for the victim at the height of a typhoon, while accused Mayor Santiago Yabut even remarked to his co-accused “Danny,” “Dikitan mo lang, alam mo na kung ano ang gagawin mo, bahala ka na” (Just stay close to him, you know what to do). Thus, Danny positioned himself near the stairs to goad the victim to come out of his house, while Fortunato Mallari represented to the deceased that the latter was being invited by a certain General Ventura. When the victim declined the invitation by claiming he was sick, accused Servillano Yabut persuaded the victim to come down by saying, “[T]o settle this matter, just apologize to the Mayor who is in the truck.” In view of that enticement, the victim came down, while Danny waited in ambush. To emphasize the accused’s resolve to kill the deceased, petitioners further narrated that when the deceased ran away after the first shot, the gunman still pursued him, while Mayor Santiago Yabut, who was a doctor, kept away at a safe distance and told everyone in the truck, “Tama na, bilisan ninyo,” (That’s enough, move quickly) without giving medical assistance to the deceased and without exerting any effort to arrest the gunman. The Office of the Provincial Prosecutor of Pampanga was furnished with a copy of the Appeal. On 26 February 1996, Provincial Prosecutor Jesus Y. Manarang issued a Resolution[11] ordering the release of accused Evelino David, Justino Mandap, Juan Magat and Arturo Naguit (who were then detained) in view of the aforementioned resolution of Alfonso-Flores, which, as stated in the order, the Provincial Prosecutor approved “on February 7, 1996.” On 28 February 1996, an Information[12] for Homicide, signed by Assistant Provincial Prosecutor Flores and Provincial Prosecutor Jesus Y. Manarang, was filed before Branch 55 of the Regional Trial Court (RTC) in Macabebe, Pampanga, against the YABUTs and John Doe alias “Danny Manalili” and docketed as Criminal Case No. 96-1667(M). The accusatory portion of the information read as follows: That on or about the 3rd day of November, 1995, in the municipality of Masantol, province of Pampanga, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating together and mutually helping one another, with deliberate intent to take the life of PO3 Virgilio A. Dimatulac, did then and there wilfully, unlawfully and feloniously shoot the said PO3 Virgilio A. Dimatulac on his abdomen with the use of a handgun, thereby inflicting upon him a gunshot wound which cause[d] the death of the said victim. All contrary to law. The Information, although dated 29 January 1996 was signed by Provincial Prosecutor Manarang on “2/27/96”, i.e., a day before its filing in court. On 28 February 1996, Judge Reynaldo V. Roura, presiding judge of Branch 55, approved the cash bonds of the YABUTs, each in the amount of P20,000.00, and recalled the warrants for their arrest.[13] On 29 February 1996, Atty. Amado Valdez, who had entered his appearance as private prosecutor, filed two (2) motions with the trial court: (1) a Motion to Issue Hold Departure Order Against All Accuseds[14] [sic]; and an (2) Urgent Motion to Defer Proceedings,[15] copies of which were furnished the Office of the Provincial Prosecutor of Pampanga. The second motion was grounded on the pendency of the appeal before the Secretary of Justice and a copy thereof was attached to the motion. Judge Roura set the motions for hearing on 8 March 1996.[16] On 7 March 1996, Judge Roura ordered the arrest of the remaining accused, Danny Manalili.[17] ” Arraignment was then reset to 3 May 1996. The YABUTs asserted that. from the Secretary of Justice. Judge Roura issued an Order[24] giving the private prosecutor “ten (10) days from today within which to file a petition for certiorari questioning the order of the Court denying his motion for reconsideration of the order of March 26. insisted on the need for a hold-departure order against the accused. and (b) prejudged the matter.” Judge Roura also set the arraignment of the accused on 12 April 1996. having remarked in open court that there was “nothing in the records of the case that would qualify the case into Murder. and to seek permission from the court should any one of them desire to travel. 1996. argued that the accused’s right to a speedy trial would not be impaired because the appeal to the Secretary of Justice was filed pursuant to Department Order No. Then invoking this Court’s rulings in Crespo v. and contended that the accused’s invocation of the right to a speedy trial was inconsistent with their filing of various dilatory motions during the preliminary investigation. by posting bail bonds. as to the second. or sought. especially since there was no definite date for the resolution of the appeal.” but denied the Motion to Defer Proceedings as he found no compelling reason therefor. an order directing the Provincial Prosecutor to defer the filing of the information in court. 223 of the DOJ and there was clear and convincing proof that the killing was committed with treachery and other qualifying circumstances not absorbed in treachery. petitioners filed a petition for prohibition[26] with the Court of Appeals docketed . as to the first. the pendency of the appeal before the Secretary of Justice was not a ground to defer arraignment.” At the same time. On 19 April 1996. citing Section 20 of Rule 114 of the Rules of Court. Mogul[19] and Balgos v.On 8 March 1996.” and. they submitted to the jurisdiction of the trial court and were bound by the condition therein to “surrender themselves whenever so required by the court. “the private prosecution has not shown any indication that [the] appeal was given due course by the Secretary of Justice. the private prosecution. Sandiganbayan.[23] It would appear that the private prosecution moved to reconsider the order denying the Motion to Defer Proceedings since. In a Reply[21] to the opposition.[20]the YABUTs further asserted that petitioners should have filed a motion to defer the filing of the information for homicide with the Office of the Provincial Prosecutor. the trial court had to consider their right to a speedy trial. moreover. petitioners filed a motion to inhibit Judge Roura[25] from hearing Criminal Case No. On 26 March 1996. the YABUTs filed their opposition[18] to the Motion to Issue Hold Departure Order and the Motion to Defer Proceedings. The YABUTs filed a Rejoinder[22] to this Opposition. considering that although the appeal was filed on 23 February 1996. 96-1667(M) on the ground that he: (a) hastily set the case for arraignment while the former’s appeal in the DOJ was still pending evaluation. on 12 April 1996. Judge Roura deferred resolution of the Motion to Issue a Hold Departure Order until “such time that all the accused who are out on bail are arraigned. petitioners filed with the trial court a Manifestation[30] submitting.R. documentary evidence to support their contention that the offense committed was murder. c. not homicide. On 29 April 1996. 96-1667(M).[29] On 30 April 1996. to enjoin Judge Roura from proceeding with the arraignment in Criminal Case No. SP No. d. manifested that “there is nothing in the record … which shows that the subject killing is qualified into murder. containing the testimony of: a. f. in connection with their Motion to Defer Proceedings and Motion to Inhibit Judge Roura. Sinumpaang Salaysay of Aniano Magnaye. 1995. b. Investigation Report. Sinumpaang Salaysay of Vladimir Yumul y Dimatulac.therein as CA-G. b. Sinumpaang Salaysay of Leopoldo Soriano. 95-360. Counter-Affidavit of SPO1 Gilberto D. Judge Roura voluntarily inhibited himself and ordered the case transferred to Branch 54 of the RTC. . The documents which they claimed were not earlier submitted by the public prosecution were the following: a. Public Prosecutor Olimpio R. Counter-Affidavit of SPO2 Fortunato Mallari. Counter-Affidavit of Francisco I. Datu filed a Manifestation and Comment[27] with the trial court wherein he opposed the motion to inhibit Judge Roura. On 24 April 1996. g. Peter Paul Dimatulac Vladimir D.dated November 4. Transcript of Stenographic Notes of the Preliminary Investigation of Criminal Case No. 40393. d. Yambao. the Branch Clerk of Court of Branch 54 of the RTC received the record of Criminal Case No.[28] On 30 April 1996. c. Yumul SPO1 Gilberto Malabanan PO3 Alfonso Canilao h. Malabanan.” and announced that he “will no longer allow the private prosecutor to participate or handle the prosecution of [the] case” in view of the latter’s petition to inhibit Judge Roura. 96-1667(M). e. presided over by herein public respondent Judge Sesinando Villon. On 31 May 1997. Sandiganbayan. Judge Villon issued an order resetting arraignment of the accused to 20 May 1996.” stressed that the filing of the information for the lesser offense of homicide was “clearly unjust and contrary to law in view of the unquestionable attendance of circumstances qualifying the killing to murder. 40393. deferred resolution on the application for a temporary restraining order “until after the required comment is submitted by the respondent.” On 3 May 1996. SP No.[34] Alarmed by the conduct of arraignment. the Court of Appeals “deferred action” on the prayer for a temporary restraining order “until after the required comment [was] submitted.i. Sketch k.” However. the Court of Appeals promulgated. The Court of Appeals. Aquilisan. The findings and conclusions of Secretary Guingona read as follows: . and Eternal Gardens Memorial Park Corp. SP No. a Resolution[31] directing respondent therein to file his comment to the petition within ten days from notice and to show cause within the same period “why no writ of preliminary injunction should be issued as prayed for in the petition.” and asserted that a number of Supreme Court decisions supported suspension of the proceedings in view of the pendency of their appeal before the DOJ. Roberts vs.R. In a letter[37] addressed to the Provincial Prosecutor dated 7 June 1996. furnishing the trial court with a copy of the aforementioned resolution of the Court of Appeals and drawing the attention of the trial court to the rulings of this Court in “Valdez vs. Judge Villon issued an Order[36] directing the accused to file their comment on the Urgent Motion to Set Aside Arraignment within fifteen days from notice. Secretary Guingona ruled that treachery was present and directed the Provincial Prosecutor of San Fernando.[35] citing the resolution of 30 April 996 of the Court of Appeals in CA-G. Court of Appeals… as well as the decision in Paul G. (133 SCRA 150). petitioners filed an Ex-Parte Manifestation[32] with the RTC. on 27 May 1996. public respondent Secretary Teofisto Guingona of the DOJ resolved the appeal in favor of petitioners.R. vs. an Urgent Motion to Set Aside Arraignment. the YABUTs each entered a plea of not guilty.[33] On the latter date. petitioners filed. in CA-G. Unscaled Sketch Likewise on 30 April 1996. 40393 which. Pampanga “to amend the information filed against the accused from homicide to murder. Galman vs. inter alia.” On 3 May 1996. Dying declaration of Virgilio Dimatulac.” and to include Fortunato Mallari as accused in the amended information. j. had consciously and deliberately adopted means to ensure the execution of the crime. and (2) the means of execution were deliberately or consciously adopted (People vs. Mayor Yabut already instructed Danny. In the case at bar.Contrary to your findings. This explains why Danny positioned himself near the stairs of the victim’s house armed with a handgun. reason dictates that he should be freed from criminal liability. On the other hand. According to him. He was also seen trying to fix the gun which was used in killing the victim. Indeed. Hence. These actuations are inconsistent with the claim that his presence at the crime scene was merely passive. we find that there is treachery that attended the killing of PO3 Dimatulac. Talaver. while they were on their way to the victim’s house. using as a reason that he (victim) was being invited by General Ventura. which appears to be credible. There being an actual danger to his life then. Yambao had no other option but to accede to the request of Mayor Yabut to provide transportation to the assailant. to constitute treachery. The admission of respondent Malabanan is replete with details on how the principal respondent. that. “Dikitan mo lang. in conspiracy with the assailant and others. these two (2) requisites are present as established from the foregoing discussion. Corollarily. the victim was suddenly shot while he was descending the stairs. we find sufficient evidence against Mallari as part of the conspiracy but not against Yambao. 230 SCRA 281 [1994]). Mayor Yabut. he was unsuspecting so to speak. bahala ka na”. we find credible the version and explanation of Yambao. the crime committed herein is murder. The attack was unexpected as the victim was unarmed and on his way to make peace with Mayor Yabut. Anent the alleged participation of respondents Fortunato Mallari and Francisco Yambao. Gapasin. From the circumstances surrounding his killing. to wit: (1) employment of means of execution that gives the person [attacked] no opportunity to defend himself or retaliate. there being a qualifying circumstance of treachery. we are also convinced that such mode of attack was consciously and deliberately adopted by the respondents to ensure the accomplishment of their criminal objective. PO3 Dimatulac was indeed deprived of an opportunity to defend himself or to retaliate. 231 SCRA 728 [1994]). under the obtaining circumstances. not homicide (People vs. [38] . and having acted under the impulse of an uncontrollable fear. As has been repeatedly held. the assailant. two conditions must be present. Undisputedly. As can be gleaned from the sworn-statement of Yambao. such positioning was precisely adopted as a means to ensure the accomplishment of their evil design and Mayor Yabut ordered nobody else but Danny to shoot the victim while descending the stairs as his position was very strategic to ensure the killing of the victim. Mallari tried also to persuade the victim to go with them. alam no na king ano ang gagawin mo. ”[40] Section 4 of In an Ex-Parte Manifestation[41] dated 21 June 1996. Servillano Yabut and Martin Yabut had already been arraigned on May 20. 223 of the DOJ.had control of the prosecution of the case. petitioners called the trial court’s attention to the resolution of the Secretary of Justice. The Secretary stated: Considering that Santiago Yabut.R. in a Manifestation and Motion[42] dated 1 July 1996. 1996 and had pleaded not guilty to the charge of homicide. If the Secretary of Justice would find their Appeal meritorious. the Solicitor General argued: 2. . the undersigned counsel interpose no objection to the issuance of a writ of prohibition enjoining respondent Judge from holding further proceedings in Criminal Case No. a copy of which was attached thereto. pending resolution of the Appeal with the Secretary of Justice. Attached thereto was a copy of the Manifestation and Motion[43] of the Solicitor General dated 18 June 1996 filed with the Court of Appeals in CA-G. petitioners asked the trial court to grant their motion to set aside arraignment. the petition for review insofar as the respondents-Yabut are concerned has been rendered moot and academic. In his letter[45] dated 1 July 1996 addressed to the Provincial Prosecutor of Pampanga.[46] The Amended Information[47] merely impleaded Fortunato Mallari as one of the accused. the Provincial Prosecutor would be directed to upgrade the Information to Murder and extreme prejudice if not gross injustice would thereby have been avoided. the Secretary of Justice set aside his order to amend the information from homicide to murder considering that the appeal was rendered moot and academic by the arraignment of the accused for homicide and their having entered their pleas of not guilty. would be placed in double jeopardy. therefore.not the private prosecutor -. particularly in holding the arraignment of the accused. 1996. Later. SP No.[39] citing “Administrative/Administration Order No. as shown by a copy of the court order dated May 20. 3 Consequently. [the] Petition for Prohibition be GRANTED and a writ of prohibition be ISSUED forthwith. 40393 wherein the Solicitor General joined cause with petitioners and prayed that “in the better interest of justice. However. The YABUTs opposed[44] petitioners’ Manifestation and Motion dated 1 July 1996 because they had already been arraigned and. and that the public prosecutor -. 96-1667-M. There is merit to the cause of petitioners.” In support of said prayer.The YABUTs moved to reconsider the resolution. the Secretary reiterated that Fortunato Mallari should be included in the information for homicide. Public Prosecutor Jaime Bustos filed a Motion for Leave to Amend Information and to Admit Amended Information. On 30 July 1996. They urge this Court to reverse the order of respondent Judge denying their Motion to Set Aside Arraignment. order that no further action be taken by any court in Criminal Case No. [56] On 16 October 1996. DOJ Department Order No.[51] On 3 September 1996.In his Order[48] of 1 August 1996. petitioners contended that in proceeding with the arraignment despite knowledge of a petition for prohibition pending before the Court of Appeals. Mallari moved to reconsider the trial court’s order and clamored for consistency in the trial court’s rulings. Pampanga. Petitioners also cited the Solicitor General’s stand[50] in CA-G.[52] which the trial court granted in view of petitioners’ motion for reconsideration of the court’s order denying petitioners’ motion to set aside private respondents’ arraignment. Judge Villon denied petitioners’ motion to set aside arraignment. 40393 that holding accused’s arraignment in abeyance was proper under the circumstances. and the letter of the Secretary of Justice of 1 July 1996. Judge Villon denied reconsideration of the order denying petitioners’ motion to set aside arraignment. and Judge Roura was ordered by the Supreme Court to preside over cases pending in Branch 54 of the Regional Trial Court of Macabebe.[54] In an order[55] dated 15 October 1996. SP No. The YABUTs opposed the motion on the ground that it raised no argument which had not yet been resolved. Petitioners forthwith moved for reconsideration[49] of the order. Considering said order. of petitioners’ appeal as it had been mooted by said arraignment. and order respondents Secretary of Justice and the prosecutors concerned to amend the information from homicide to murder. Judge Villon was later detailed to Branch 24 of the Regional Trial Court of Manila. by the Secretary of Justice. SP No. whereas petitioners did not obtain the conformity of the prosecutor before they filed various motions to defer proceedings. the Court of Appeals promulgated its decision[57] in CA-G.[53] As expected. Finally. citing Section 4.[58] Judge Roura informed the Office of the Court Administrator and this Court that he had already inhibited himself from hearing Criminal Case No. Judge Villon deemed accused Mallari’s motion for reconsideration moot and academic. and that the DOJ had ruled that the proper offense to be charged was murder and did not reverse such finding. 96-1667(M) until this petition is resolved. which was previously presided over by Judge Villon. petitioners filed the instant Petition forCertiorari/Prohibition and Mandamus. set aside arraignment of private respondents. Rule 71 of the Rules of Court on indirect contempt. citing the YABUTs’ right to a speedy trial and explaining that the prosecution of an offense should be under the control of the public prosecutor. . petitioners filed a Motion to Defer Arraignment of Accused Fortunato Mallari. arguing that the Motion to Defer the Proceedings filed by petitioners was meritorious and did not violate the accused’s right to speedy trial. 96-1667(M). the trial court violated Section 3(d). 40393 dismissing the petition therein for having become moot and academic in view of Judge Roura’s voluntary inhibition.[59] On 28 December 1996.R. 223.R. the arraignment of the YABUTs and the dismissal. Petitioners insist that the killing of PO3 Virgilio Dimatulac was attended by treachery since private respondents tricked the victim into coming out of his house and then shot him while he was going down the stairs.” as shown by the following events or circumstances: (1) Assistant Provincial Prosecutor Alfonso-Flores downgraded the nature of the crime committed to homicide. There was. (3) The information for homicide was nevertheless filed despite notice to the Office of the Provincial Prosecutor of the appeal filed with the Secretary of Justice and request to defer any action on the case. Court of Appeals. SP No.[60] respondent Judge acted in excess of his jurisdiction in proceeding with private respondents' arraignment for homicide and denying petitioners' motion to set aside arraignment. Petitioners argue that in light of Roberts. (7) The Pampanga Provincial Prosecutor’s Office did not object to the arraignment nor take any action to prevent further proceedings on the case despite knowledge of the pendency of the appeal. (2) Respondent Mayor and his companions returned to Minalin after the killing and went into hiding for four (4) months until the offense charged was downgraded. on strength of a motion for reinvestigation filed by the YABUTs who had not yet been arrested. (8) The Provincial Prosecutor did not comply with the resolution of 7 June 1996 of the Secretary of Justice directing the amendment of the information to charge the crime of murder. (6) Even before receipt by petitioners of Judge Roura’s order inhibiting himself and the order regarding the transfer of the case to Branch 54. without notice to petitioners. notwithstanding the pendency of petitioners’ appeal with respondent Secretary of Justice. forthwith arraigned the accused on the information for homicide on 20 May 1996. a bailable offense. despite the pendency of the petition for prohibition before the Court of Appeals and of the appeal before the DOJ. Moreover. public respondent Judge Villon set the case for arraignment and. “an orchestrated effort on the part of [private respondents] to manipulate the rules on administrative appeals with the end in view of evading prosecution for the [nonbailable] offense of murder. v.R. 40393. Further. Jr. (4) The Office of the Public Prosecutor of Pampanga disallowed the private prosecutor from further participating in the case. petitioners claim. (5) Judge Roura denied the motion to defer proceedings and declared in open court that there was no prima facie case for murder. he should have deferred the proceedings just the same as the very issue in said case was whether or not the RTC could proceed with the arraignment despite the pending review of the case by respondent Secretary of Justice. although respondent Judge Villon was not the respondent in CA-G. Judge . and failed to detect the Provincial Prosecutor's bias in favor of private respondents. involving as it did the exercise of discretionary powers. to which the public and private prosecutors did not object. Private respondents further argue that the decision of respondent Secretary. only to resurface when the charge was reduced to homicide. Judge Villon should have been more circumspect as he knew that by proceeding with the arraignment. and from 3 May 1996 to 20 May 1996. In its comment for the public respondents. due to petitioners’ pending appeal with the DOJ. private respondents submit that mandamus does not lie. is not subject to judicial review. it having already been reset twice from 12 April 1996 to 3 May 1996. at least 86 days prior to private respondents’ arraignment. Finally. only the accused can appeal. As regards DOJ Department Order No. While as regards petitioners’ plea that the Secretary be compelled to amend the information from homicide to murder. after a lapse of barely three (3) months from the filing of the information on 23 February 1996. due to the transfer of this case to Branch 54. and as no restraining order was issued by the Court of Appeals. private respondents theorize that appeal by complainants is allowed only if the complaint is dismissed by the prosecutor and not when there is a finding of probable cause. They point out that petitioners did not move to reconsider the RTC's 26 March 1996 denial of the Motion to Defer. In their comment. the DOJ had not yet resolved petitioners’ appeal and the DOJ did not request that arraignment be held in abeyance. opting instead for Judge Roura’s recusal and recourse to the Court of Appeals. in which case. 223. as the determination as to what offense was committed is a prerogative of the DOJ. private respondents contend that no sufficient legal justification exists to set aside private respondents' arraignment. they voluntarily abandon their appeal. overlooked that private respondents were estopped from invoking said right as they went into hiding after the killing. since by submitting to arraignment. as of the latter date. Moreover. the Office of the Solicitor General (OSG) prays that the petition be denied because: (a) in accordance with Section 4 of DOJ .Villon unjustly invoked private respondents’ right to a speedy trial. subject only to the control of the President. petitioners' recourse should have been to the President. petitioners’ appeal was improper. despite the fact that petitioners’ appeal had been filed as early as 23 February 1996. Finally. petitioners submit that the DOJ rule prohibiting appeals from resolutions of prosecutors to the Secretary of Justice once the accused had already been arraigned applies only to instances where the appellants are the accused. Under the principle of separation of powers. private respondents stress the fact that petitioners never appealed the withdrawal by the public prosecutor of the private prosecutor's authority to handle the case. Hence. it was but proper for respondent Judge to proceed with the arraignment of private respondents. the appeal with the DOJ would be rendered technically nugatory. as she had no other option under the circumstances.e. fugitives from justice for having avoided service of the warrant of arrest issued by the MCTC and having failed to voluntarily surrender. with no bail recommended for their temporary liberty. the proceedings below were replete with procedural irregularities which lead us to conclude that something had gone awry in the Office of the Provincial Prosecutor of Pampanga resulting in manifest advantage to the accused. they were never brought into the custody of the law. herein petitioners. at the time. Alfonso-Reyes allowed the YABUTs to make a mockery of the law in order that they gain their provisional liberty pending trial and be charged with the lesser offense of homicide.00 for the YABUTs and co-accused “Danny. warrants for the arrest of the YABUTs were issued by the MCTC. the appeal to the Secretary of Justice shall be dismissed motu proprio. waived the filing of their counter-affidavits. Were that all she did. Alfonso-Reyes allowed the YABUTs to submit their counter-affidavits without first demanding that they surrender because of the standing warrants of arrest against them. she was without any other choice but to sustain the MCTC since the YABUTs and all other accused. Yet. and grave prejudice to the State and to private complainants. Alfonso-Reyes should not have done so.O.000. Hence. (b) the filing of the information for homicide was in compliance with the directive under Section 4(2). this difference of opinion must be on the basis of the review of the record and evidence transmitted by the judge. Alfonso-Reyes recommended a bond of only P20. We now consider the issues enumerated at the outset of thisponencia. 223. accused Roberts and others had not been arraigned and respondent Judge had ordered the indefinite postponement of the arraignment pending resolution of their petitions before the Court of Appeals and the Supreme Court. and since said Court did not issue any restraining order. an appeal or motion for reinvestigation from a resolution finding probable cause shall not hold the filing of the information in court. Since said accused were at large. for one reason or another undisclosed in the record. upon arraignment of the accused.” despite the fact that they were charged with homicide and they were. as there. and (d) reliance on Roberts is misplaced. conducted a reinvestigation. Plainly.. Asst. While it may be true that under the second paragraph of Section 5. further stretching her magnanimity in favor of the accused. the YABUTs were not arrested. . except Francisco Yambao. neither did they surrender. as here. either motu proprioor upon motion of the YABUTs. more particularly the YABUTs. arraignment was properly had. 223. Provincial Fiscal Alfonso-Reyes. Rule 112 of the Rules of Court. Then. First. Second.Order No. D. the provincial prosecutor may disagree with the findings of the judge who conducted the preliminary investigation. i. In short. No. However. (c) the trial court even accommodated petitioners by initially deferring arraignment pending resolution by the Court of Appeals of the petition for prohibition. the latter course of action would have been the most prudent thing to do. and that the private prosecution had convincing arguments to support the appeal. This amounted to defiance of the DOJ’s power of control and supervision over prosecutors. Clearly. No undue prejudice could have been caused to the YABUTs if it were filed even later for the YABUTs were still at large. if she were unwilling to voluntarily ask the latter for instructions. Fourth. the filing of an information for murder. to announce that “he will no longer allow the private prosecutor to participate or handle the prosecution of [the] case” simply because the private prosecution had asked for the inhibition of Judge Roura. a matter which we shall later elaborate on. It is interesting to note that while the information was dated 29 January 1996.Third. Moreover. Alfonso-Reyes filed the Information for homicide on 28 February 1996. under the circumstances. had the temerity. This simply means that the Office of the Prosecutor was not.00 each only after the filing of the Information. as found by the MCTC and established by the evidence before it. Alfonso-Reyes was fully aware of the private prosecution’s appeal to the DOJ from her resolution. as if to show further bias in favor of the YABUTs. Fifth. If Alfonso-Flores was extremely generous to the YABUTs. She could not have been ignorant of the fact that the appeal vigorously assailed her finding that there was no qualifying circumstance attending the killing. they filed their bonds of P20. Olimpio Datu. initially. The subsequent resolution of the Secretary of Justice confirmed the correctness of the private prosecution’s stand and exposed the blatant errors of Alfonso-Reyes. if not arrogance. It is undebatable that petitioners had the right to appeal to the DOJ from the resolution of Alfonso-Flores. with all the vigour it could muster. The last paragraph of Section 4 of Rule 112 of the Rules of Court provides: . the trial prosecutor. then they had the right to intervene in the criminal case pursuant to Section 16 of Rule 110 of the Rules of Court. in an unprecedented move. in fact. Unsatisfied with what had been done so far to accommodate the YABUTs. in a hurry to file the Information. despite the pendency of the appeal. no compelling reason existed why she could not afford the offended parties the same courtesy by at least waiting for instructions from the Secretary of Justice in view of the appeal. it was approved by the Provincial Prosecutor only on 27 February 1996.000. the Office of the Provincial Prosecutor of Pampanga did not even bother to motu proprio inform the trial court that the private prosecution had appealed from the resolution of Alfonso-Flores and had sought. the Office of the Provincial Prosecutor did not even have the decency to agree to defer arraignment despite its continuing knowledge of the pendency of the appeal. Said prosecutor forgot that since the offended parties here had not waived the civil action nor expressly reserved their right to institute it separately from the criminal action. reverse or modify their rulings.Supervision and control shall include authority to act directly whenever a specific function is entrusted by law or regulation to a subordinate. paragraph 1. duty. office. reverse or modify acts and decisions of subordinate officials or units. It is clear from the above. authority. an appeal to the DOJ is an invocation of the Secretary’s power of control over prosecutors. x x x x. Chapter 2. restrain the commission of acts. or activity is entrusted to a chief of bureau. office. or revoke any decision or action of said chief of bureau.” xxx xxx xxx “Section 37. Chapter 7.[62] exercises the power of direct control and supervision over said prosecutors. Book IV in relation to Section[s] 5. direct the performance of duty. the Assistant Chief State Prosecutors. the Secretary of Justice reverses the resolution of the provincial or city fiscal or chief state prosecutor. 8. which read: “Section 3. division or service. x x x x The Chief State Prosecutor. division or service. Court of Appeals. Section 39. and the State Prosecutors shall x x x perform such other duties as may be assigned to them by the Secretary of Justice in the interest of public service. More importantly. the Senior State Prosecutors.” Supplementing the aforequoted provisions are Section 3 of R. he shall direct the fiscal concerned to file the corresponding information without conducting another preliminary investigation or to dismiss or move for the dismissal of the complaint or information. inLedesma v. Title III of the Code gives the secretary of justice supervision and control over the Office of the Chief Prosecutor and the Provincial and City Prosecution Offices. -. and who may thus affirm. that the proper party referred to therein could be either the offended party or the accused. function.[61] we emphatically held: Decisions or resolutions of prosecutors are subject to appeal to the secretary of justice who.” . or to review. The scope of his power of supervision and control is delineated in Section 38. review.A. modify. Chapter 8. the same shall be understood as also conferred upon the proper Department Head who shall have authority to act directly in pursuance thereof.If upon petition by a proper party. Book IV of the Code: “(1) Supervision and Control. nullify. and 9. Thus. The provisions of the existing law to the contrary notwithstanding. under the Revised Administrative Code. 3783 and Section 37 of Act 4007. approve. whenever a specific power. as in this case. As a rule.“Supervision” and “control” of a department head over his subordinates have been defined in administrative law as follows: “In administrative law. Accordingly. means the power of an officer to alter or modify or nullify or set aside what a subordinate officer had done in the performance of his duties and to substitute the judgment of the former for that of the latter. the former may take such action or step as prescribed by law to make them perform such duties. To rule otherwise would be to forever bar redress of a valid grievance. What May Be Appealed. and not directly by courts. Section 4 applies even to appeals by the respondents or accused. 223 of 30 June 1993 recognizes the right of both the offended parties and the accused to appeal from resolutions in preliminary investigations or reinvestigations. petitioners herein were not barred from appealing from the resolution holding that only homicide was committed. thus: SECTION 1. on the other hand. supervision means overseeing or the power or authority of an officer to see that subordinate officers perform their duties. the appeal of petitioners did not hold the filing of the information. As stated above. petitioners could file an appeal under said Section 1. abuses or negligence committed in the initial steps of an administrative activity or by an administrative agency should be corrected by higher administrative authorities. The provision reads: . hence. the Provincial Prosecutor’s Office of Pampanga effectively “dismissed” the complaint for murder. as provided for in Section 1 and Section 4. respectively. While the section speaks of resolutions dismissing a criminal complaint. especially where the investigating prosecutor. otherwise the last paragraph of Section 4.” Review as an act of supervision and control by the justice secretary over the fiscals and prosecutors finds basis in the doctrine of exhaustion of administrative remedies which holds that mistakes. only after administrative remedies are exhausted may judicial recourse be allowed. -. By holding that only homicide was committed. demonstrated what unquestionably appeared to be unmitigated bias in favor of the accused. considering that their complaint was for murder. Rule 112. DOJ Order No. Control. Section 1 is not to be literally applied in the sense that appeals by the offended parties are allowed only in cases of dismissal of the complaint. Section 1 thereof provides. 223 is the controlling rule.Only resolutions of the Chief State Prosecutor/Regional State Prosecutor/Provincial or City Prosecutor dismissing a criminal complaint may be the subject of an appeal to the Secretary of Justice except as otherwise provided in Section 4 hereof. pursuant to the second paragraph thereof. If the latter fail or neglect to fulfill them. Rules of Court would be meaningless. We cannot accept the view of the Office of the Solicitor General and private respondents that Section 4 of DOJ Department Order No. The Secretary of Justice is only enjoined to refrain.[64] reiterated in Roberts v. the last paragraph of Section 4. 4. perforce. Rule 112 of the Rules of Court” which is quoted above. there was. shall not hold the filing of the information in court. he must have taken that into consideration when he set arraignment of the accused only on 12 April 1996. he further reset arraignment to 3 May 1996and gave petitioners ten (10) days within which to file a petition for certiorari to question his denial of the motion to defer and of the order denying the reconsideration. supports the ground for the deferment of the first motion. said appeal shall be dismissed motu proprio by the Secretary of Justice. and on that date. Notwithstanding the showing of manifest error or grave abuse of discretion. in his order of 26 March 1996. Precisely. An appeal/motion for reinvestigation from a resolution finding probable cause. To hold that arraignment is a prerequisite to the issuance of a hold departure order could obviously defeat the purpose of said order. however.No appeal may be taken from a resolution of the Chief State Prosecutor/Regional State Prosecutor/Provincial or City Prosecutor finding probable cause except upon a showing of manifest error or grave abuse of discretion. In any case. the grant of a motion to dismiss. as far as practicable. depriving the State and the offended parties of due process. Mogul. So we held inMarcelo v. Judge Roura was fully aware of the pendency of petitioner’s appeal with the DOJ. Non-appealable cases.[66] he deferred resolution on the motion for a hold departure order until “such time that all the accused who are out on bail are arraigned” and denied the motion to defer proceedings for the reason that the “private prosecution has not shown any indication that [the] appeal was given due course by the Secretary of Justice. or repealing.” Neither rhyme nor reason or even logic. As to the second motion. indecent haste in the filing of the information for homicide. from entertaining a petition for review or appeal from the action of the prosecutor once a complaint or information is filed in court.SEC. Exceptions. In fact. (underscoring supplied) The underlined portion indisputably shows that the section refers to appeals by respondents or accused. is subject to the discretion of the court. on the part of the public prosecution. Court of Appeals[63] that nothing in the ruling inCrespo v. In any event. no appeal shall be entertained where the appellant had already been arraigned. which the prosecution may file after the Secretary of Justice reverses an appealed resolution. If the appellant is arraigned during the pendency of the appeal . immediate action thereon was called for as the accused were out on bail and. had all the opportunity to leave the country if they wanted to. the . Court of Appeals. after denying petitioners’ motion to reconsider the denial of the motion to defer proceedings. . As to the second issue. which was filed as early as 23 February 1996.[65] forecloses the power or authority of the Secretary of Justice to review resolutions of his subordinates in criminal cases despite an information already having been filed in court. Indubitably then. we likewise hold that Judge Roura acted with grave abuse of discretion when. In Roberts we went further by saying that Crespo could not have foreclosed said power or authority of the Secretary of Justice “without doing violence to. however. he could not have helped but notice: (a) the motion to defer further proceedings.[68] his judicial instinct should have led him to peruse the documents submitted on 30 April 1996 and to initially determine. he should have asked petitioners as regards the status of the appeal or warned them that if the DOJ would not decide the appeal within a certain period. as he had. (4) the resolution of the Court of Appeals directing respondents to comment on the petition and show cause why the application for a writ of preliminary injunction should not be granted and deferring resolution of the application for a temporary restraining order until after the required comment was filed. All told. If Judge Villon only perused the record of the case with due diligence. at the very least.better part of wisdom suggested that. (5) the motion to inhibit Judge Roura precisely because of his prejudgment that the crime committed was merely homicide. moved to inhibit Judge Roura. Judge Villon should not have merely acquiesced to the findings of the public prosecutor. dictated that he should have waited for the resolution of the appeal then pending before the DOJ. the pending appeal with the DOJ. complete control over the case and any disposition thereof rested on his sound discretion. Judge Villon issued an order on 3 May 1996 setting arraignment of the accused on 20 May 1996. and (8) most importantly. he could have directed the private prosecutor to secure a resolution on the appeal within a specified time. All the foregoing demanded from any impartial mind. Acting with deliberate dispatch. if indeed murder was the offense committed. The latter received the record of the case on 30 April 1996. procedurally speaking. . However. or at least. respect for the authority of the prosecution agency. a cautious attitude as these were unmistakable indicia of the probability of a miscarriage of justice should arraignment be precipitately held. as should be done by anyone who has just taken over a new case. These twin moves prompted Judge Roura to “voluntarily” inhibit himself from the case on 29 April 1996[67] and to transfer the case to the branch presided by public respondent Judge Villon. Given the totality of circumstances.R. not homicide. for his own enlightenment with serving the ends of justice as the ultimate goal. or. Judge Villon should have heeded our statement in Marcelo[69] that prudence. 40393. Judge Villon cursorily ignored all this. (7) various pieces of documentary evidence submitted by petitioners on 30 April 1996 supporting a charge of murder. Petitioners did in fact file the petition with the Court of Appeals on 19 April 1996 and. (2) the order of Judge Roura giving petitioners ten days within which to file a petition with the Court of Appeals. the offended parties did not receive any better deal. the State and the offended parties were deprived of due process. From that time on. then arraignment would proceed. (3) the fact of the filing of such petition in CA-G. at the same time. While it may be true that he was not bound to await the DOJ’s resolution of the appeal. especially that of Judge Villon. if not wisdom. (6) Judge Roura’s subsequent inhibition. Again. We do not then hesitate to rule that Judge Villon committed grave abuse of discretion in rushing the arraignment of the YABUTs on the assailed information for homicide. SP No. which indicated a prima facie showing of merit. for the administration of justice is akin to a religious crusade.[76] his discretion is not unfettered. denying the State and the offended . on the other hand. Prosecutors are charged with the defense of the community aggrieved by a crime. and an acquittal is not necessarily a triumph of justice.[72] they are the representatives not of an ordinary party to a controversy. but at all times cautious that they refrain from improper methods designed to secure a wrongful conviction. Thus.[71] Prosecutors must never forget that. for justice to prevail.Up to the level then of Judge Villon. for. with a view to erasing all doubt from the court’s mind as to the accused’s innocence or guilt. The interests of society and the offended parties which have been wronged must be equally considered. and the State and offended party.e. in the language of Suarez v. two pillars of the criminal justice system failed in this case to function in a manner consistent with the principle of accountability inherent in the public trust character of a public office. As such. they are in a peculiar and every definite sense the servants of the law. justice is not to be dispensed for the accused alone. in a criminal prosecution is not that it shall win every case but that justice be done. the scales must balance.” the judge must render service with impartiality commensurate with the public trust and confidence reposed in him. thereby clarifying contradictions and sealing all gaps in the evidence. The judge. therefore. Platon. and whose interest.[78] Indeed. a verdict of conviction is not necessarily a denial of justice.[75] Although the determination of a criminal case before a judge lies within his exclusive jurisdiction and competence. whose two-fold aim is that guilt shall not escape or innocence suffer. In this case. it could also mean injustice. on one hand. exerting the same devotion as a priest “in the performance of the most sacred ceremonies of religious liturgy. the abuse of discretion on the part of the public prosecution and Judges Roura and Villon was gross. “should always be imbued with a high sense of duty and responsibility in the discharge of his obligation to promptly and properly administer justice. to the society offended and the party wronged. nor the right of the State and offended party to due process of law..[73] With them lies the duty to lay before the court the pertinent facts at the judge’s disposal with strict attention to punctilios. but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all. Verily.[79] Justice then must be rendered even-handedly to both the accused.[77] The judge’s action must not impair the substantial rights of the accused. not to allow the guilty to escape nor the innocent to suffer.i. but rather must be exercised within reasonable confines. grave and palpable.”[74] He must view himself as a priest. Judges Roura and Villon and prosecutors Alfonso-Flores and Datu need be reminded that it is in the public interest that every crime should be punished[70] and judges and prosecutors play a crucial role in this regard for theirs is the delicate duty to see justice done. and are expected to prosecute the public action with such zeal and vigor as if they were the ones personally aggrieved. on the other. the arraignment of the YABUTs and their plea of not guilty. it was certainly grave error for the DOJ to reconsider its 7 June 1996 resolution. in light of the finding of the DOJ that the crime committed was murder. or that their court was ousted of the jurisdiction in respect thereto. without fear or favor and removed from the pressures of politics and prejudice. We must remedy the situation before the onset of any irreversible effects. and meekly surrendered to the latter’s inappropriate conduct or even hostile attitude. but a noble duty to preserve our democratic society under a rule of law. We thus have no other recourse. In so doing. the denial of the motion to defer further hearings. informing the DOJ. which amounted to neglect of duty or conduct prejudicial to the best interest of the service. Sandiganbayan:[80] The Supreme Court cannot permit such a sham trial and verdict and travesty of justice to stand unrectified. The sins of omission or commission of said prosecutors and judges resulted. These lapses by both the judges and prosecutors concerned cannot be taken lightly. the denial of the motion to reconsider such denial. They would have no reason to exist if they were allowed to be used as mere tools of injustice. thereby nullifying as having been done without jurisdiction. from time to . in the exercise of its disciplinary powers over its personnel. even if belatedly. holding that murder was committed and directing the Provincial Prosecutor to accordingly amend the information. We remind all members of the pillars of the criminal justice system that theirs is not a mere ministerial task to process each accused in and out of prison. instead of repositories of judicial power whose judges are sworn and committed to render impartial justice to all alike who seek the enforcement or protection of a right or the prevention or redress of a wrong.parties their day in court. As to said judges. Anent the third issue. inter alia. Further. The courts of the land under its aegis are courts of law and justice and equity. in unwarranted benefit to the YABUTs and gross prejudice to the State and the offended parties. the DOJ could have directed the public prosecutors concerned to show cause why no disciplinary action should be taken against them for neglect of duty or conduct prejudicial to the best interest of the service in not. The DOJ should have courageously exercised its power of control by taking bolder steps to rectify the shocking “mistakes” so far committed and. for as Chief Justice Claudio Teehankee pronounced inGalman v. in the final analysis. solely on the basis of the information that the YABUTs had already been arraigned. due process. joined cause with petitioners to set aside arraignment. even asking the trial court to defer arraignment in view of the pendency of the appeal. as well as to the undue haste of Judge Roura and Villon in respect of the arraignment of the YABUTs. deception and duplicity to subvert and suppress the truth. or in a constitutional sense. such amounted to lack or excess of jurisdiction. to prevent further injustice and fully serve the ends of justice. The DOJ could have. the DOJ relinquished its power of control and supervision over the Provincial Prosecutor and the Assistant Provincial Prosecutors of Pampanga. It is settled that when the State is deprived of due process in a criminal case by reason of grave abuse of discretion on the part of the trial court. so must it be where the arraignment and plea of not guilty are void. and the orders of respondent Judge Sesinando Villon of 3 May 1996 resetting the arraignment to 20 May 1998 and of 15 October 1996 denying the Motion to Set Aside Arraignment in Criminal Case No. the DOJ should have further inquired into the vicissitudes of the case below to determine the regularity of arraignment. . The arraignment of private respondents Mayor Santiago Yabut. as in this case as above discussed. SO ORDERED. The Office of the Provincial Prosecutor of Pampanga is DIRECTED to comply with the order (letter) of the Secretary of Justice of 7 June 1996 by forthwith filing with the trial court the amended information for murder. in disallowing the private prosecutor from further participating in the case. Thereafter the trial court shall proceed in said case with all reasonable dispatch. the petition is GRANTED. hence double jeopardy cannot be invoked by the accused. Finally. insofar as prosecutor Datu was concerned. Servillano Yabut and Martin Yabut and their separate pleas of not guilty are likewise declared VOID and SET ASIDE. We then rule that the equally hasty motu proprio“reconsideration” of the 7 June 1996 resolution of the DOJ was attended with grave abuse of discretion.time. the acquittal of the accused[81] or the dismissal of the case[82] is void. 96-1667(M) are declared VOID and SET ASIDE. and. the order of public respondent Secretary of Justice of 1 July 1996 is SET ASIDE and his order of 7 June 1996 REINSTATED. No pronouncement as to costs. considering that the appeal was received by the DOJ as early as 23 February 1996. WHEREFORE. of the status of the case. Furthermore. If this is so in those cases. The orders of Judge Reynaldo Roura of 26 March 1996 denying the Motion to Defer Proceedings and of 12 April 1996 denying the motion to reconsider the denial of said Motion to Defer Proceedings.