G.R. Nos. L-61079-81 April 15, 1988 PEOPLE OF THE PHILIPPINES, appellee, vs. MARIA LOREN QUIZADA, appellant.

The argument of the accused was that the remarks allegedly made by her imputed to the complaining witness the crime of adultery, a private crime. Under Rule 110, Section 4 (now Section 5), of the Rules of Court and Article 360 of the Revised Penal Code, no criminal action for defamation imputing such offense "shall be brought except at the instance of and upon complaint filed by the offended party." The trial judge * agreed and granted the motion. 9 The charges were dismissed and the motion for reconsideration filed by the prosecution was denied. 10

CRUZ, J.: It is the interesting combination of double jeopardy and defamation that has brought this case all the way up and directly to this Court. In three separate complaints filed with the office of the provincial fiscal of Surigao del Sur, Cipriana B. Tranquilan accused Maria L. Quizada of having spoken of her, on the occasions therein mentioned, as follows: Si Nanie ka eyat, boring, bardot, kabiga-on kabit sa akong bana," which words when translated into English mean: "Nanie is a woman of ill repute, she has a love relationship with my husband, she has taken from me my husband that is the reason why she did not get married because she is a woman of bad reputation. 1 Si Nanie boring, bardal ka eyat, biga-on, dili na naminggo, nagtan-an sa sine, gikumot and iyang totoy sa akong bana," which words when translated into English mean: "Nanie is a woman of ill repute, she will not get married, she went to the show and her nipples had been squeezed by my husband. 2 Si Nanie boring, bardal ka eyat, biga-on dill na naminggo, nagtan-an sa sine, gikumot ang iyang totoy sa akong bana," which words when translated into English mean: "Nanie is a woman of ill repute, she will not get married, she went to the show and her nipples had been squeezed by my husband. 3 On the basis of these complaints, and after preliminary investigation, the assistant provincial fiscal filed in the Court of First Instance of Surigao del Sur, on September 14,1981, three separate informations for grave oral defamation against Quizada for having disparaged Tranquilan in the following language: Si Nanie ka eyat, boring, bardot, kabiga-on, kabit sa akong bana, nangilog sa aking bana ugsa wala na naminggo kay hugaw na babae," which words when translated into the English language mean: "Nanie is a flirt, a prostitute, a whore, a paramour of my husband, she grabbed my husband from me, that's why she is not married because she is a dirty woman. 4 Si Nanie boring, bardot, ka eyat, dili na maningyo, nagtan-an sa sine, gikumot ang iyong totoy sa akong bana," which words when translated into English mean: "Nanie is a prostitute, whore, flirt, she will not get married anymore, she went to the movies and her nipples were touched and squeezed by my husband. 5 Si Nanie, boring, bardot, ka eyat, biga-on dili na namingyot, nagtan-an sa sine, gikumot ang iyang totoy sa akong bana," which words when translated into English mean: "Nanie is a prostitute, whore, flirt, she will not get married anymore, she went to the movies and her nipples were touched and squeezed by my husband. 6 Upon arraignment on February 18, 1982, the accused pleaded not guilty to all the three informations. 7 Thereafter, she moved to quash the same on the ground that the charges should have been initiated not by the fiscal but upon complaint of the offended party herself. 8

The prosecution then came to this Court to challenge the dismissal, and that is how double jeopardy entered the picture. The private respondent now claims that reversal of the dismissal and reinstatement of the cases would violate her rights under Article IV, Section 22 (now Article III, Section 21) of the Constitution. Required to comment, the Solicitor General argued that the crime imputed by the alleged remarks was prostitution, a public offense. As such, it could be the basis of a prosecution for defamation through an information filed by the fiscal. 11 That is doubtless true. However, the Court notes that in addition to allegedly calling the complainant a whore the private respondent is also charged in one information with having described the former as "a paramour of my husband," which is a clear imputation of adultery. A paramour is "one who loves or is loved illicitly. One taking the place without the legal rights of a husband or wife. A mistress; called also lover." 12 Accordingly, that imputation was covered by the aforecited Rule 110. It is not denied that the charges were made through the informations filed by the assistant provincial fiscal and not formally commenced in court by the offended party. Nevertheless, it is also clear that these informations were based on the three criminal complaints earlier filed by Tranquilan with the fiscal's office, which conducted the corresponding preliminary investigation litigation thereon. Conformably to the procedural rules then in force, 13 the complaints and the records of the preliminary investigation were transmitted to the trial court upon the filing of the corresponding informations. Hence, although the charges were not initiated through complaint of the offended party and the informations did not state that they were based on her complaint, such circumstances did not deprive the respondent court of jurisdiction petition. A similar situation arose in People v. Rondina, 14 where the Court held: Under the rule prevailing at the time this case was commenced and tried in 1977, the complaint was considered part of the record at the preliminary investigation and had to be transmitted to the trial court upon the filing of the corresponding charge. Such complaint was in fact transmitted as required and could therefore be judicially noticed by the trial judge without the necessity of its formal introduction as evidence of the prosecution. This conclusion is in keeping with the doctrine embodied in People v. Perido, decided by the Court of Appeals through Justice Montemayor (later a member of this Court), who declared in part as follows: The complaint in the case at bar was duly signed by the mother of the offended party, but the prosecuting attorney during the trial, failed to introduce such complaint as part of the evidence of the prosecution. Subsequently, however, said complaint, which is part of the record of the justice of the peace court before whom the case was filed, was sent up to form part of the record in the appeal. This cured the deficiency in the evidence. Although not introduced in evidence, the complaint may be regarded as part of the record in the appellate court which can and does take judicial notice thereof. (Moran's Law of Evidence, p. 343 and Francisco's Evidence, p. 46, both citing the case of People v. Bautista, G.R. No. 40621 [unpublished]).' (Emphasis supplied.)

We note further that apart from the fact that the offended party's sworn complaint was among the papers elevated to the Court of First Instance that subsequently tried and decided the case, the information itself expressly stated that it was being filed 'upon a sworn complaint signed and filed by the offended woman. Parenthetically, it is worth observing that the original Rule 112, Section 12, of the Rules of Court, provided that upon the conclusion of the pre investigation the judge or corresponding officer shall transmit without delay to the clerk of the Court of First Instance having jurisdiction of the offense the records of the case . . .' By contrast, it is now provided in Section 8 of the same rule, as revised in 1985, that 'the record of the preliminary investigation whether conducted by a judge or a fiscall shalll not form part of the record of the case in the Regional Trial Court' The allegation of double jeopardy is plainly without merit. As we have repeatedly stressed, double jeopardy will attach if (a) a valid complaint or information (b) is filed before a competent court or tribunal, and (c) after the accused shall have been arraigned and entered a plea, (d) he is acquitted or convicted or the case is dismissed without his express consent. 15 The first three requisites are present in the case at bar but the fourth is not. It was the petitioner herself who moved to quash the charges against her on the ground that the trial court had no jurisdiction. The dismissal was made not only with her express consent but, indeed, upon her own motion. There are only two occasions when double jeopardy will attach even if the motion to dismiss the case is made by the accused himself. The first is when the ground is insufficiency of the evidence of the prosecution, and the second is when the proceedings have been unreasonably prolonged in violation of the right to a speedy trial. 16 None of these exceptions is present here. We hold in sum that the criminal informations were validly filed under the procedural rules in force at the time of such filing; that their dismissal for lack of jurisdiction was erroneous; and that their reinstatement willl not violate the prohibition against double jeopardy. ACCORDINGLY, this petition is GRANTED. The Orders of the respondent judge dated March 31, 1982, and March 24, 1982, are SET ASIDE. Criminal Cases Nos. 942, 943 and 944 are REINSTATED and REMANDED to the trial court for further proceedings. SO ORDERED. G.R. No. L-43790 December 9, 1976 PEOPLE OF THE PHILIPPINES, petitioner, vs. THE CITY COURT OF SILAY, ERNESTO DE LA PAZ, PACIFICO SENECIO, JR. y SEBUSA, ROMEO MILLAN y DELEJERO and WILFREDO JOCHICO y MAGALONA, respondents. Acting Solicitor General Hugo E. Gutierrez, Jr., Assistant Solicitor General Octavio R. Ramirez and Solicitor Enrique M. Reyes for petitioner. Hilado, Hagad & Hilado as private prosecutors. Benjamin Z. Yelo, Sr. for private respondent Romeo Millan. Ciceron Severino and Emeterio Molato for other private respondents.

MUOZ PALMA, J.: This is a Petition for Review jointly filed by the City Fiscal of Silay City, Marcelino M. Paviera, and the Law Offices of Hilado, Hagad & Hilado, the latter as private prosecutors, praying that an order of the City Court of Silay dated December 19, 1975, issued by Judge Reynaldo M. Alon, dismissing Criminal Case No. 7124-C entitled "People vs. Ernesto de la Paz, et al." be set aside and that respondent court be directed to continue with the trial of the aforementioned case. * In compliance with Our Resolution of July 21, J976, the Office of the Solicitor General filed its comment on October 13, 1974, joining the Petitioner's prayer that the order of respondent court of December 19, 1975, be reversed and the case remanded for further proceedings. The record shows that private respondent herein, Ernesto de la Paz, Pacifico Senecio, Jr. y Sebusa Romeo Millan y Delejero and Wilfredo Jochico y Magalona, were charged with "falsification by private individuals and use of falsified document" under Par. 2, Article 172 of the Revised Penal Code, alleged to have been committed as follows. That sometime on January 4, 1974, at Hawaiian-Philippine Company, Silay City, Philippines, and within the jurisdiction of this Honorable Court, the accused Ernesto de la Paz, overseer of Hda. Malisbog belonging to Deogracias de la Paz, and the other three accused, scalers of Hawaiian-Philippine Company, with intent of gain and to cause damage by conniving, cooperating and mutually helping one another did then and there wilfully, unlawfully and feloniously alter or falsify the sugar cane weight report card or "tarjeta", a private document showing the weight of sugarcane belonging to Deogracias de la Paz, particularly those loaded in cane cars Nos. 1686, 1743 and 1022 by increasing the total actual weight of 22.005 tons to 27.160 tons for said three cane cars, thereby causing damage to the central and other cane planters of about 8.68 piculs of sugar valued in the total amount of P618.19, to the damage and prejudice of Hawaiian Central and other sugarcane planters adhered thereto in the aforestated amount of P618.19. IN VIOLATION OF PARAGRAPH 2, ART. 172, R.P.C. (p. 14, rollo) Evidence was presented by the prosecution showing that: On January 4, 1974, accused Pacifico Senecio, Jr. Romeo Millan and Wilfredo Jochico who were then scalers on duty that day at the Hawaiian-Philippine Company, weighed cane cars Nos. 1743,1686 and 1022 loaded with sugar canes belonging to Deogracias de la Paz. The weight of the sugar canes were reflected on the weight report cards (H.P. Co. Lab. Form No. 1) or "tarjetas" showing that for car No. 1743 8.920 tons (Exhibit "B1"), for Car No. 1686 8.970 tons (Exhibit "C-1") for car No. 1022 8.875 tons or a total weight of 26.765 tons. However, they did not submit said "tarjetas" to the laboratory section, instead, they substituted "tarjetas" showing a heavier weight for car No. 1743 10.515 tons (Exhibit "B"), car No. 1686 10.525 tons (Exhibit "C") and car No. 1022 10.880 tons (Exhibit "D") with a total of 27.160 tons or an additional of 5.155 tons. These were the "tarjetas" submitted to the laboratory section. Exhibits "B-1", "C-1" and "D-1" were taken later by the prosecution witness PC Sgt. Rogelio Sevilla from the wife of Pacifico Senecio, Jr. (pp. 15-16, rollo, Order of December 19, 1975). After the prosecution had presented its evidence and rested its case, private respondents moved to dismiss the charge against them on the ground that the evidence presented was not sufficient to establish their guilt beyond reasonable doubt. Acting on this motion, respondent court issued its order of December 19, 1975, dismissing the

case with costs de oficio principally on the ground that the acts committed by the accused as narrated above do not constitute the crime of falsification as charged. Reasoning out his order, Judge Alon said: To be convicted under paragraph 2, Article 172, an accused should have committed one of the eight acts of falsification enumerated under Article 171, R.P.C. Is the act of substituting the "tarjetas" with higher cane weight for the ones with lower cane weight fall under one of the acts enumerated. After going over the acts of falsification one by one and trying to correlate the act of the accused with each of them, the Court finds that the said act could not possibly be placed under any of them. Inclusio unius est exclusio alterius, the inclusion of one is the exclusion of the other. Following this maxim, we cannot just include the act of substitution as among those acts enumerated under Article 171. And, under the rule of statutory construction, penal laws should be liberally construed in favor of the accused. This Court, therefore, is of the opinion that the accused have not committed the act of falsification with which they are charmed. Obviously, it follows that there could be no use of falsified document since there is no falsified document. The imputed acts of the accused in making the substitution, if true, is repugnant to the human sense of right and wrong. But, however reprehensible the act may be, it is not punishable unless there is a showing that there is a law which defines and penalizes it as a crime. Unless there be a particular provision in the Penal Code or Special Law that punishes the act, even if it be socially or morally wrong, no criminal liability is incurred by its commission. (U.S. vs. Taylor, 28 Phil. 599) xxx xxx xxx

Fiscal but notwithstanding said opposition, the trial court dismissed the case on the ground that Pedro Miguel was a mere agent of the true owner of the ring and therefore not the real offended party. The Assistant Provincial Fiscal appealed to this Court, but the Solicitor General moved for the dismissal of the appeal on the ground that it would place the accused in double jeopardy, and the Court agreed with the Solicitor General, stating that it cannot be seriously questioned that the trial court had grievously erred in his conclusion and application of the law, and in dismissing outright the case; however, the error cannot now be remedied by an appeal because it would place the accused in double jeopardy. (per Eugenio Angeles, J., 25 SCRA 823,826) In the earlier case of Catilo vs. Hon. Abaya, May 14, 1954, petitioner Catilo was charged with murder before the Court of First Instance of Batangas presided by respondent Judge. Petitioner was arraigned and after the prosecution had rested its case petitioner moved for the dismissal of the charge for insufficiency of evidence. This motion was granted by the Judge and his order was promulgated in open court to the accused. Later in the day, Judge Abaya set aside his order of dismissal motu proprio and scheduled the case for continuation of the trial on specific dates. A motion for reconsideration was filed by the defense counsel but because respondent Judge failed to take action, the accused filed an original action for certiorari with this Court. In granting relief to petitioner Catilo, the Court, through Justice Marcelino R. Montemayor, held: From whatever angle we may view the order of dismissal Annex "A", the only conclusion possible is that it amounted to an acquittal. Whether said acquittal was due to some "misrepresentation of facts" as stated in the order of reconsideration, which alleged misrepresentation is vigorously denied by the defendant-petitioner, or to a misapprehension of the law or of the evidence presented by the prosecution, the fact is that it was a valid order or judgment of acquittal, and thereafter the respondent Judge himself advised the accused in open court that he was a free man and could not again be prosecuted for the same offense. The inherent powers of a court to modify its order or decision, under section 5, Rule 124 of the Rules of Court claimed for the respondent to set aside his order of dismissal, does not extend to an order of dismissal which amounts to a judgment of acquittal in a criminal case; and the power of a court to modify a judgment or set it aside before it has become final or an appeal has been perfected, under section 7, Rule 116 of the Rules of Court, refers to a judgment of conviction and does not and cannot include a judgment of acquittal. In conclusion, we hold that to continue the criminal case against the petitioner after he had already been acquitted would be putting him twice in jeopardy of punishment for the same offense. ... (94 Phil. 1017) The cases cited by the Acting Solicitor General are not applicable to the situation now before Us because the facts are different. In Co Te Hue vs. Judge Encarnacion , 94 Phil. 258, the case was dismissed provisionally with the express consent of the accused. The same occurred in People vs. Togle, 105 Phil. 126 there was a provisional dismissal upon express request of the counsel for the accused, In Gandicela vs. Lutero, 88 Phil. 299, it was the accused who asked for the dismissal of the case because the private prosecutor was not in court to present the prosecution's evidence and the Municipal Court of the City of Iloilo dismissed the case without prejudice to the refiling of the charge against the accused. 1 In People vs. Romero, 89 Phil. 672, the dismissal was made at the instance of the accused because the prosecution was also not ready with its evidence. The case of People vs. Belosillo, 9 SCRA 836, is not applicable either, because the order of dismissal of the Information was made before arraignment, hence, the accused was not yet placed in jeopardy of punishment for the offense charged. In the case of the herein respondents, however, the dismissal of the charge against them was one on the merits of the case which is to be distinguished from other dismissals at the instance of the accused. All the elements of double jeopardy are here present, to wit: (1) a valid information sufficient in form and substance to sustain a conviction of the crime charged, (2) a court of competent jurisdiction, and (3) an unconditional dismissal of the complaint after the prosecution had rested its case, amounting to the acquittal of the accused. The dismissal being one on the merits, the doctrine of waiver of the accused to a plea of double jeopardy cannot be invoked.

Wherefore, the motion is hereby granted and the case dismissed with costs de oficio ... (pp. 17-18, rollo) In their comment on this Petition, private respondents claim that there was no error committed by respondent court in dismissing the case against them for insufficiency of evidence and that for this Court to grant the present petition would place said respondents in double jeopardy. On the other hand, the People asserts that the plea of double jeopardy is not tenable inasmuch as the case was dismissed upon motion of the accused, and the dismissal having been made with their consent, they waived their defense of double jeopardy, citing various cases in support thereof. (pp. 58-59, rollo, Comment of the Solicitor General) We disagree with the position taken by the Acting Solicitor General Hugo E. Gutierrez, Jr. that the plea of double jeopardy is not available in the instant situation. It is true that the criminal case of falsification was dismissed on motion of the accused; however, this was a motion filed after the prosecution had rested its case, calling for an appreciation of the evidence adduced and its sufficiency to warrant conviction beyond reasonable doubt, resulting in a dismissal of the case on the merits, tantamount to an acquittal of the accused. Thus, in People vs. Acosta, L-23657, October 29, 1968, this Court dismissed an appeal taken by the People against an order of the Court of First Instance of Ilocos Norte dismissing a criminal case upon motion of the accused after the presentation of evidence by the prosecution as such appeal if allowed would place the accused in double jeopardy. There the accused was charged with estafa by obtaining from Pedro Miguel a ring valued at P16,500.00 and issuing a check for $5,000.00 in Payment thereof which turned out later to be counterfeit to the damage and prejudice of said Pedro Miguel in the aforementioned amount of P16,500.00. After the presentation of the evidence of the prosecution, the accused moved to dismiss the case on the ground that the evidence showed that the ring belonged to somebody else, Banang Jaramillo, and not to Pedro Miguel as alleged in the information and that the element of damage was absent. This motion was opposed by the Assistant Provincial

It is clear to Us that the dismissal of the criminal case against the private respondents was erroneous. As correctly stated in the Comment of the Acting Solicitor General, the accused were not charged with substitution of genuine "tarjetas" with false ones. The basis for the accusation was that the accused entered false statements as to the weight of the sugar cane loaded in certain cane cars in "tarjetas" which were submitted to the laboratory section of the company. The act of making a false entry in the "tarjetas" is undoubtedly an act of falsification of a private document, the accused having made untruthful statements in a narration of facts which they were under obligation to accomplish as part of their duties- Ernesto de la Paz, as overseer of Hda. Malisbog, and the other accused as scalers of the offended party, the Hawaiian-Philippine Company, thereby causing damage to the latter. However erroneous the order of respondent Court is, and although a miscarriage of justice resulted from said order, to paraphrase Justice Alex Reyes in People vs. Nieto, 103 Phil, 1133, such error cannot now be righted because of the timely plea of double jeopardy. In Nieto, the background of the case is as follows: On September 21, 1956, an Information for homicide was filed with the Court of First Instance of Nueva Ecija against Gloria Nieto who, upon arraignment pleaded guilty to the charge but -notwithstanding that plea, the trial judge acquitted her on the Page 254 ground that although the accused was a minor "over 9 and under 15 years old" the Information failed to allege that she acted with discernment. Thereafter the prosecution filed another Information for the same offense stating therein that the accused Gloria Nieto was "a child between 9 and 15 years" and alleging in express terms that she acted with discernment. The defense filed a motion to quash this second Information on grounds of double jeopardy, and the trial court already presided by another Judge, Hon. Felix V. Makasiar, now Justice of this Court, granted the motion. The prosecution appealed to this Court from said order. In its Decision, the Court dismissed the appeal and sustained the order of then Judge Makasiar, deploring that as a result of a mistaken view taken by the trial judge who acquitted the accused Gloria Nieto despite her plea of guilty there was a miscarriage of justice which cannot be righted and which leaves the Court no choice bat to affirm the dismissal of the second Information for reasons of double jeopardy. 2 We cannot but express Our strong disapproval of the precipitate action taken by Judge Alon in dismissing the criminal case against the private respondents at that stage of the trial. A thorough and searching study of the law, the allegations in the Information, and the evidence adduced plus a more circumspect and reflective exercise of judgment, would have prevented a failure of justice in the instant case. We exhort Judge Alon to take into serious consideration what We have stated so as to avoid another miscarriage of justice. IN VIEW OF THE FOREGOING, We are constrained to DISMISS this Petition of the People. Without pronouncement as to costs. Let copy of this Decision be entered in the personal file of Judge Reynaldo Alon. So Ordered. Teehankee (Chairman), Makasiar, Concepcion, and Martin, JJ., concur.

2 Because People v. Nieto is an unpublished decision and the facts of the case are of unusual interest, We are quoting herein portions of the Decision of the Court: It appears that on September 21, 1956 an information for homicide was filed in said court against Gloria Nieto alleging That on or about the 7th day of May, 1956, in the Municipality of Pearanda, Province of Nueva Ecija, Republic of the Philippines, and within the jurisdiction of this Honorable Court, the above named accused Gloria Nieto, with the intent to kill, did then and there wilfully, criminally and feloniously push one Lolita Padilla, a child eight and one half (8-1/2) years of age, into a deep place of the Pearanda River and as a consequence thereof Lolita Padilla got drowned and died right then and there. Contrary to the provisions of Article 249 of the Revised Penal Code. Upon arraignment, the accused, who was assisted by counsel de oficio, entered a plea of guilty, but the trial judge nevertheless acquitted her of the crime charged on the grounds that she was a minor "over nine and under fifteen years old" and the information failed to allege that she acted with discernment. The prosecution thereafter filed another information for the same offense, the said information stating that the accused Gloria Nieto was "a child between 9 and 15 years old" and alleging in express terms that she acted with discernment. But the defense filed a motion to quash on the ground of double jeopardy, and the court, now presided by another judge, granted the motion. The prosecution appealed; We find the appeal to be without merit. The pivotal question is whether the accused could on her unqualified plea of guilty to the first information, be rightly held answerable for the offense therein charged. Undoubtedly, she could. For the said information avers facts constituting the said offense with nothing therein to indicate that she, as the perpetrator thereof, was exempt from criminal liability because of her age, and her plea of guilty to the information is an unqualified admission of all its material averments. And, indeed, even under the view taken by the trial judge who acquitted her that because she was between the ages of 9 and 15 although that fact does not appear in the information to which she pleaded guilty an allegation that she acted with discernment must be required, that requirement should be deemed amply met with the allegation in the information that she, the accused Gloria Nieto, with the intent to kill, did then and there wilfully, criminally and feloniously push one Lolita Padilla, a child eight and one half (8-1/2) years of age, into a deep place of the Pearanda River and as a consequence thereof Lolita Padilla got drowned and died right then and there. ... As the learned trial judge, Hon. Felix V. Makasiar, who quashed the second information, says in his order: The allegations in the information that the accused "with intent to kill, did then and there wilfully, criminally and .feloniously push one Lolita Padilla ... into a deep place in Pearanda River and that as a consequence thereof, Lolita Padilla got drowned and died right then and there", and her plea of guilty thereto, preclude the existence of any one of the justifying or exempting circumstances enumerated in Article 11 and 12 of the Revised Penal Code including Paragraph 3 of Article 12. The said allegation can only mean that the accused, who is over 9 but below 15 years of age, was not justified in killing the victim nor was she exempted from any criminal responsibility therefor. Otherwise, the term 'criminal and feloniously would have no meaning at all. To require the addition of the ritualistic phrase 'that she acted with discernment' would be superfluous. Under a different view, substances would sacrificed to the tyranny of form.

Footnotes * We treated this Petition as a Special Civil Action after all parties concerned had submitted their respective pleadings as comments to the Petition. 1 See People vs. Salico, 84 Phil. 722 & People vs. Obsania, 23 SCRA 1249.

... To insist on the necessary of including the phrase 'she acted with discernment in the information for the purpose of conveying said in order to make the information sufficient, is to confess a bankcruptcy is language or vocabulary and to deny that the same Idea can be expressed in other terms. One need not a dabbler in philology or semantics to be able to appreciate the import or connotation or significance of the phrase "with intent to kill ... wilfully, criminally and feloniously" made more emphatic by "contrary to the provisions of Article 249." The contrary view nullifies the existence or value or utility of synonymous in the communication of Ideas.'" See also People vs. Inting, L-41959, March 31, 1976 70 SCRA 289. G.R. No. L-54110 February 20, 1981 GENEROSO ESMEA and ALBERTO ALBA, petitioners, vs. JUDGE JULIAN B. POGOY, City Court of Cebu City, Branch III, PEOPLE OF THE PHILIPPINES and RICARDO B. TABANAO, as Special Counsel, Office of the City Fiscal, Cebu City, respondents.

Respondent judge provisionally dismissed the case as to the four accused who were present because it "has been dragging all along and the accused are ready for the hearing" but the fiscal was not ready with his witness. The court noted that there was no medical certificate indicating that the complainant was really sick. The case was continued as to the fifth accused who did not appear at the hearing. His arrest was ordered (p. 23, Rollo). Twenty-seven days later, or on September 12, 1979, the fiscal filed a motion for the revival of the case. He attached to his motion a medical certificate under oath attesting to the fact that Father Tibudan was sick of influenza on August 16, 1979. The fiscal cited the ruling that a provisional dismissal with the conformity of the accused lacks the impress of finality and, therefore, the case could be revived without the filing of a new information (Lauchengco vs. Alejandro, L-49034, January 31, 1979, 88 SCRA 175). The accused did not oppose the motion. Respondent judge granted it in his order of October 8, 1979 (p. 26, Rollo). On October 24, 1979, Esmea and Alba filed a motion to dismiss the case on the ground of double jeopardy. They pointed out that they did not consent to the provisional dismissal of the case. Hence, the provisional dismissal amounted to an acquittal which placed them in jeopardy. Its revival would place them in double jeopardy. The fiscal opposed the motion. He called the court's attention to the fact that Father Tibudan had appeared in court several times but the hearing was not held. The court denied the motion to dismiss. That order denying the motion to dismiss is assailed in this special civil action of certiorari. The Solicitor General agrees with the petitioners that the revival of the case would place the accused in double jeopardy since the provisional dismissal of the case without their consent was in effect an acquittal. The rule on double jeopardy (non bis in Idem or not twice for the same) is found in section 22, Article IV Bill of Rights) of the Constitution which provides that "no person shall be twice put in jeopardy of punishment for the same offense." This is complemented by Rule 117 of the Rules of Court which provides as follows: SEC. 9. Former conviction or acquittal or former jeopardy. When a defendant shall have been convicted or acquitted, or the case against him dismissed or otherwise terminated without the express consent of the defendant, by a court of competent jurisdiction, upon a valid complaint or information or other formal charge sufficient in form and substance to sustain a conviction, and after the defendant had pleaded to the charge, the conviction or acquittal of the defendant or the dismissal of the case shall be a bar to another prosecution for the offense charged, or for any attempt to commit the same or frustration thereof, or for any offense which necessarily includes or is necessarily included in the offense charged in the former complaint or information. In order that legal jeopardy may exist, there should be (a) a valid complaint or information (b) before a court of competent jurisdiction and (c) the accused has been arraigned and has pleaded to the complaint or information. When these three conditions are present, the acquittal or conviction of the accused or the dismissal or termination of the case without his express consent constitutes res judicata and is a bar to another prosecution for the offense charged, or for any attempt to commit the same or frustration thereof, or for any offense which necessarily includes or is included therein (4 Moran's Comments on the Rules of Court, 1980 Ed., p. 240). Previous acquittal (autrefois acquit), previous conviction (autrefois convict) or the dismissal or termination of the case without his consent precludes his subsequent indictment for the same offense as defined in section 9.

AQUINO, J.: This case poses the issue of whether the revival of a grave coercion case, which was provisionally dismissed (after the accused had been arraigned) because of complainant's failure to appear at the trial, would place the accused in double jeopardy, considering their constitutional right to have a speedy trial. Petitioners Generoso Esmea and Alberto Alba and their co-accused, Genaro Alipio, Vicente Encabo and Bernardo Villamira were charged with grave coercion in the city court of Cebu City for having allegedly forced Reverend Father Tomas Tibudan of the Jaro Cathedral, Iloilo City to withdraw the sum of five thousand pesos from the bank and to give that amount to the accused because the priest lost it in a game of cards. The case was calendared on October 4, 1978 presumably for arraignment and trial. Upon the telegraphic request of Father Tibudan the case was reset on December 13, 1978. Because Esmea and Alba were not duly notified of that hearing, they were not able to appear. The two pleaded not guilty at their arraignment on January 23, 1979. No trial was held after the arraignment because complainant Father Tibudan requested the transfer of the hearing to another date. In the meantime, the fiscal lost his record of the case. So, the hearing scheduled on June 18, 1979 was cancelled at his instance. On that date, respondent judge issued an order setting the trial "for the last time on August 16, 1979, at 8:30 o'clock in the morning" (p. 21, Rollo). When the case was called on that date, the fiscal informed the court that the private prosecutor received from complainant Father Tibudan a telegram stating that he was sick. The counsel for petitioners Esmea and Alba opposed the cancellation of the hearing. They invoked the right of the accused to have a speedy trial. Their counsel told the court: " ... we are now invoking the constitutional right of the accused to a speedy trial of the case. ... We are insisting on our stand that the case be heard today; otherwise, it will (should) be dismissed on the ground of invoking (sic) the constitutional right of the accused particularly accused Alberto Alba and Generoso Esmea (pp. 50 and 52, Rollo).

In the instant case, we hold that the petitioners were placed in jeopardy by the provisional dismissal of the grave coercion case. That provisional dismissal would not have place the petitioners in jeopardy if respondent judge had taken the precaution of making sure that the dismissal was with their consent. In this case, it is not very clear that the petitioners consented to the dismissal of the case. It is the practice of some judges before issuing an order of provisional dismissal in a case wherein the accused had already been arraigned to require the accused and his counsel to sign the minutes of the session or any available part of the record to show the conformity of the accused or his lack of objection to the provisional dismissal. The judge specifies in the order of provisional dismissal that the accused and his counsel signified their assent thereto. That procedure leaves no room for doubt as to the consent of the accused and precludes jeopardy from attaching to the dismissal. The petitioners were insisting on a trial. They relied on their constitutional right to have a speedy trial. The fiscal was not ready because his witness was not in court. Respondent judge on his own volition provisionally dismissed the case. The petitioners did not expressly manifest their conformity to the provisional dismissal. Hence, the dismissal placed them in jeopardy. Even if the petitioners, after invoking their right to a speedy trial, moved for the dismissal of the case and, therefore, consented to it, the dismissal would still place them in jeopardy. The use of the word "provisional" would not change the legal effect of the dismissal (Esguerra vs. De la Costa, 66 Phil. 134; Gandicela vs. Lutero, 88 Phil. 299). If the defendant wants to exercise his constitutional right to a speedy trial, he should ask, not for the dismissal, but for the trial of the case. After the prosecution's motion for postponement of the trial is denied and upon order of the court the fiscal does not or cannot produce his evidence and, consequently, fails to prove the defendant's guilt, the court upon defendant's motion shall dismiss the case, such dismissal amounting to an acquittal of the defendant" (4 Moran's Comments on the Rules of Court, 1980 Ed., p. 202, citing Gandicela vs. Lutero, 88 Phil. 299, 307 and People vs. Diaz, 94 Phil. 714-717). The dismissal of a criminal case upon motion of the accused because the prosecution was not prepared for trial since the complainant and his witnesses did not appear at the trial is a dismissal equivalent to an acquittal that would bar further prosecution of the defendant for the same offense (Salcedo vs. Mendoza, L-49375, February 28, 1979, 88 SCRA 811; Lagunilia vs. Hon. Reyes, etc. and Motas, 111 Phil. 1020 citing People vs. Tacneng, 105 Phil. 1298 and People vs. Robles, 105 Phil. 1016. See Taladua vs. Ochotorena, L-25595, February 15, 1974, 55 SCRA 528; Acebedo vs. Sarmiento, L-28025, December 16, 1970, 36 SCRA 247; Baesa vs. Provincial Fiscal of Camarines Sur, L-30363, January 30, 1971, 37 SCRA 437; People vs. Cloribel, 120 Phil. 775; People vs. Abao 97 Phil. 28; People vs. Labatete, 107 Phil. 697). WHEREFORE, the order of respondent judge dated October 8, 1979, reviving the criminal case against the petitioners, and his order of December 14, 1979, denying petitioners' motion to dismiss, are reversed and set aside. No costs. SO ORDERED. Facts: Petitioners Esmea and Alba were charged with grave coercion in the Court of Cebu City for allegedly forcing Fr. Thomas Tibudan to withdraw a sum of money worth P5000 from the bank to be given to them because the priest lost in a game of chance. During arraignment, petitioners pleaded Not Guilty. No trial came in after the arraignment due to the priests request to move it on another date. Sometime later Judge Pogoy

issued an order setting the trial Aug.16,1979 but the fiscal informed the court that it received a telegram stating that the complainant was sick. The accused invoked their right to speedy trial. Respondent judge dismissed the case because the trial was already dragging the accused and that the priests telegram did not have a medical certificate attached to it in order for the court to recognize the complainants reason to be valid in order to reschedule again another hearing. After 27 days the fiscal filed a motion to revive the case and attached the medical certificate of the priest proving the fact that the priest was indeed sick of influenza. On Oct.24,1979, accused Esmea and Alba filed a motion to dismiss the case on the ground of double jeopardy.

Issue: Whether or Not the revival of grave coercion case, which was dismissed earlier due to complainants failure to appear at the trial, would place the accused in double jeopardy

Held: Yes, revival of the case will put the accused in double jeopardy for the very reason that the case has been dismissed already without the consent of the accused which would have an effect of an acquittal on the case filed. The dismissal was due to complainants incapability to present its evi dence due to non appearance of the witnesses and complainant himself which would bar further prosecution of the defendant for the same offense. For double jeopardy to exist these three requisites should be present, that one, there is a valid complaint or information filed second, that it is done before a court of competent jurisdiction and third, that the accused has been arraigned and has pleaded to the complaint or information. In the case at bar, all three conditions were present, as the case filed was grave coercion, filed in a court of competent jurisdiction as to where the coercion took place and last the accused were arraigned and has pleaded to the complaint or the information. When these three conditions are present then the acquittal, conviction of the accused, and the dismissal or termination of the case without his express consent constitutes res judicata and is a bar to another prosecution for the offense charged. In the case, it was evidently shown that the accused invoked their right to a speedy trial and asked for the trial of the case and not its termination which would mean that respondents had no expressed consent to the dismissal of the case which would make the case filed res judicata and has been dismissed by the competent court in order to protect the respondents as well for their right to speedy trial which will be equivalent to acquittal of the respondents which would be a bar to further prosecution. G.R. No. L-69270 October 15, 1985 GERRY TOYOTO, EDDIE GONZALES, DOMINADOR GABIANA AND REY CINCO, petitioners, vs. HON. FIDEL RAMOS, CAPTAIN ALVAREZ AND CAPTAIN BALLEN, respondents.

ABAD SANTOS, J: This is a petition for habeas corpus and the problem posed is whether the State can "reserve" the power to rearrest the petitioners even after they had been acquitted by a court of competent jurisdiction for the offense for which they had been previously arrested. The following are taken from the petition and have not been contradicted by the respondents: Gerry Toyoto, Eddie Gonzales and Dominador Gabiana belong to a group called the "Urban Poor" which conducted a march, demonstration and rally along Northbay Boulevard in Navotas, Metro Manila, on October 23, 1983.

Subsequently, Toyoto, Gonzales and Gabiana (among others) were accused of violating Presidential Decree No. 1835 (Codifying the Various Laws on Anti-Subversion and Increasing the Penalties for Membership in Subversive Organizations [January 16, 1981]) in Criminal Case No. 1496-MN of the Regional Trial Court of Malabon. No bail was recommended for their provisional liberty. On July 9, 1984, the petitioners were arraigned and they pleaded not guilty to the offense charged. The prosecution was able to present only one witness despite repeated postponements. This prompted the accused to move for the dismissal of the case. In granting the motion, Judge Vicente B, Echaves, Jr. said inter alia: 1. Since on cross-examination, prosecution witness Dagui testified that the primary reason of the marching group was to air their grievances to the government to allow them to transfer to the Dagat- dagatan government project for squatters, it is doubtful that the marchers had, as alleged in the information, the 'intention to undermine the faith of the people in the duly constituted government and authorities of the Republic of the Philippines'; 2. Since Dagui testified on cross-examination that before the dispersal of the marchers there were no speeches, and he did not see accused Toyoto, Gabiana or Gonzales deliver speeches, there is no proof at all of the allegation in the information that the accused "uttered speeches tending to discredit the government; 3. Considering the testimony of witness Dagui on direct examination that during that rally, accused Eddie Boy Gonzales was holding a placard, but that he did not remember the words thereon, and that he did not see co- accused Dominador Gabiana and Gerry Toyoto holding a placard, there is no proof of the allegation in the information that said accused did 'use and display placards, banners and other subversive leaflets; 4. It is alleged IN the information that the accused held a public rally 'without securing the necessary permit from the proper authorities' but the 'proper authorities' were not presented to prove this allegation. In any event, considering that, as admitted by witness Dagui, the primary purpose of the marchers was to air their grievances to the government to allow them to transfer to the Dagat-dagatan government project for squatters, it is doubtful if the 'proper authorities' could withhold the permit for such a rally and thereby render violence to the Constitutional 'right of the people peaceably to assemble and petition the government for redress of grievances. (Rollo, pp. 8-9.) The order of dismissal was dated November 9, 1984, but on December 5, 1984, when the petition for habeas corpus was filed, the respondents had not released and they refused to release the petitioners on the ground that a Preventive Detention Action had been issued against them. It is to be noted that the petitioners had been in detention for over one year for they were arrested on October 23, 1983. We thus have the sorry spectacle of persons arrested, charged and tried for merely exercising their constitutional rights. And the injury was compounded when the over zealous minions of the government refused to release them even after they had been acquitted by a court of competent jurisdiction because they were covered by a PDA. To be sure it cannot be denied that there was a flagrant violation of human rights. The return filed by the respondents states that petitioners Toyoto, Gonzales and Gabiana were released to their relatives on December 8, 1984, pursuant to the order of the Minister of National Defense. The order (Annex 1) is dated November 30, 1984, and orders the "temporary release" of the petitioners. The respondents pray that the petition be dismissed for having become moot and academic in view of the release of the petitioners from detention.

The petitioners would have their case considered moot and academic only "if their release would be permanent." We sustain the petitioners. Ordinarily, a petition for habeas corpus becomes moot and academic when the restraint on the liberty of the petitioners is lifted either temporarily or permanently. We have so held in a number of cases. But the instant case presents a different situation. The question to be resolved is whether the State can reserve the power to rearrest a person for an offense after a court of competent jurisdiction has absolved him of the offense. An affirmative answer is the one suggested by the respondents because the release of the petitioners being merely "temporary" it follows that they can be re-arrested at anytime despite their acquittal by a court of competent jurisdiction. We hold that such a reservation is repugnant to the government of laws and not of men principle. Under this principle the moment a person is acquitted on a criminal charge he can no longer be detained or rearrested for the same offense. This concept is so basic and elementary that it needs no elaboration. WHEREFORE, the petition is granted; the release of the petitioners is hereby declared to be permanent. No costs. SO ORDERED. G.R. No. 136258

October 10, 2001

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. CARLOS FELICIANO, accused-appellant. VITUG, J.: From being the subject of moral condemnation, the "Kiss of Judas" appears to attain a different dimension in criminal procedure. Indeed, by entering into a "unholy" contract with an accused, so that the latter might betray his partner in crime in exchange for an acquittal, the State demonstrates how far its efforts could go to vindicate crime. That the State should agree to become a party to setting up a premium on "treachery," and that it should reward conduct from which an honorable man would ordinarily recoil with aversion, paradoxically illustrates the perceived necessity of such kind of an arrangement in criminal procedure.1 It is this doggedness of purpose on the part of the State which herein accused-appellant, in one of his assignment of errors, decries "The trial court [has] erred in discharging accused Rodel de la Cruz to be the state witness against co-accused Carlos Feliciano despite strong objections from the defense."2 The accused-appellant, Carlos Feliciano, was a security guard detailed by the Atlantic Security Agency at the Kingsmen building, also popularly known in the small community as the hub of four disco pubs located on four floors of the edifice, in Kalibo, Aklan. He was assigned to the "Superstar" disco pub and his duties ranged from refusing entry to dubious characters to making certain that no customer would leave without first paying his bill. Rodel de la Cruz, a security guard from another agency, the Rheaza Security Agency, was stationed at the parking lot of the same building. In keeping with the nocturnal business hours of the establishments at Kingsmen, the two security guards would report for duty at 7:00 in the evening until the wee hours of the next morning or when the last customer would have by then left the premises. In the early morning of 05 June 1995, Feliciano and de la Cruz centrally figured in the investigation over the grisly death of an unidentified woman whose body was found sprawled in Barangay New Buswang, Kalibo, Aklan.

Finding a dead body at 5:30 in the morning in nearby Barangay Buswang was big news to the small community of Kalibo The radio news about an unidentified lifeless female lying in the Sampaton Funeral Parlor caught the curiosity of Rosalie Ricarto. The dead woman, so described as wearing a red jacket emblazoned with the words "El-Hassan, Kingdom of Saudi Arabia" and maong pants, fit the description of Teresita Fuentes. Rosalie, a rice retailer, shared a stall with Teresita, a vendor of spices, condiments and fruits, at the Yambing Building. Rosalie last saw Teresita on the afternoon of 04 June 1995. Teresita, who regularly went to twice a week to buy goods to sell, was scheduled to leave the following morning of 05 June 1995. According to Rosalie, Teresita, who normally would take the 2:00 a.m. trip to Iloilo, should already be back at Kalibo by about 4:00 p.m. of the same day. But Teresita did not return that afternoon. Rosalie said that Teresita wore pieces of jewelry a necklace, a pair of earrings, a bracelet, four rings and a Seiko wristwatch all of which, except for the timepiece, were eventually recovered. Anna Liza Pronton Fuentes, the daughter of Teresita, was able to identify the bag recovered by Myca Banson from the crime scene, as well as all its t contents, to be those belonging to her mother. Likewise, recovered at the crime scene were twelve P100.00 bills, seven P5.00 bills and the broken windshield of the tricycle owned by Ruben Barte. Turned over to the police by the manager of the Superstar Disco Club was the sum of P1,000.00. The autopsy report showed that whoever bludgeoned the hapless Teresita Fuentes to death had used a blunt instrument, inflicting twelve different wounds on her head and face. The cause of death was noted to be severe hemorrhage secondary to lacerated wounds and skull fracture. On 02 August 1995, an Information was filed against Rodel de la Cruz and Carlos Feliciano 'That on or about the 5th day of June 1995, in the early morning, in Barangay New Buswang, Municipality of Kalibo, Province of Aklan, Republic of the Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating together and mutually helping one another, while armed with a handgun, by means of force and violence, and with intent of gain and without the consent of the owner thereof, did then and there willfully, unlawfully and feloniously take, steal, rob and carry away cash money in the amount of TEN THOUSAND PESOS (P10,000.00), Philippine currency, more or less, belonging to TERESITA FUENTES Y OSORIO, to the damage and prejudice of the owner in the aforesaid amount; that by reason or in the occasion of said robbery, and for the purpose of enabling the accused to take, steal and carry away the aforesaid amount, the above-named accused with intent to kill and conspiring with one another, did then and there willfully, unlawfully and feloniously and with evident premeditation and under the cover of darkness, treacherously attack, assault and wound TERESITA FUENTES Y OSORIO, thereby inflicting upon her mortal wounds, to wit: 1. 2. 3. 4. 5. 6. 7. 8. Lacerated wound about 1 inches in length left chin. Lacerated wound about 1 inch in length left lower lip. Fracture of the left mandible. Fracture of the left upper lateral incisor and the left upper canine. Lacerated wound about 1 inches in length and about 1 in depth left face. Punctured wound in diameter and about 1 inches in depth mid-portion base nose bridge left. Lacerated wound about 2 inches in length and about 1 inches in depth left cheek. Lacerated wound about 1 inch in length left ear medially.

9. 10. 11. 12.

Lacerated wound about inch in length left face near the left ear. Lacerated wound about 1 in length below the left eyebrow. Punctured wound about 1 inch in diameter and about 5 inches in depth left parietal. Skull fracture occiput right.

"as per autopsy report of Dr. Agrelita D. Fernandez, of the Rural Health Unit, Kalibo, Aklan, hereto attached and forming an integral part hereof which wounds directly caused the death of said TERESITA FUENTES Y OSORIO. "That as a result of the criminal acts of the accused, the heirs of the victim suffered actual and compensatory damages in the amount of FIFTY THOUSAND (P50,000.00) PESOS."3 The prosecution sought the discharge of accused Rodel de la Cruz so that the latter could testify against his coaccused Carlos Feliciano. Pending resolution by the trial court on the motion, Carlos Feliciano and Rodel de la Cruz were arraigned on 08 February 1996. The two accused entered a plea of not guilty. On 18 June 1996, the court a quo granted the motion of the prosecution and the name of Rodel de la Cruz, an accused turned state witness, was forthwith stricken off from the Information.4 A detailed account of the incident presented at the trial by the prosecution was narrated by the Office of the Solicitor General. "In the early morning of June 5, 1995, before 2 o'clock, appellant went to the guard post of Dela Cruz to tell the latter to assist him in going after a customer who did not pay the bill. It was not the first time that they had to run after a non-paying customer. Dela Cruz thus accompanied appellant who rented for the purpose a tricycle from its driver, Ruben Barte, who stayed behind. Appellant initially drove but about twenty meters past Kingsmen Building, he asked Dela Cruz to take over while he stayed inside the passenger sidecar of the tricycle. Somewhere between the Ceres and Libacao terminals, appellant alighted from the tricycle after instructing Dela Cruz to stop and wait for him. Appellant subsequently informed Dela Cruz that they shall wait there for the customer they were after. About a half hour later, however, appellant decided to leave the place, apparently because the person he was looking for was nowhere in sight. As they passed Banga, New Washington crossing, they saw a woman walking alone. Appellant waved at her, giving Dela Cruz the impression that they knew each other. Dela Cruz stopped the vehicle, as he was told by appellant, who then jumped out. Drawing his service gun, appellant suddenly held the woman by the neck and at the same time poked his gun at her face. He dragged her towards the tricycle and ordered her to board it. The woman would later be identified as Teresita Fuentes. Dela Cruz was shocked with what appellant did and was at a loss on what to do. Still stricken with panic, Dela Cruz asked appellant what was going on and said he was leaving as he did not want to be part of whatever plans appellant had. Appellant retorted that Dela Cruz was already involved. Dela Cruz was about to alight from the tricycle when appellant poked his gun at him and ordered him to drive. Thinking that appellant was in a position to easily shoot him, Dela Cruz did as he was ordered. "Appellant then instructed Dela Cruz to drive back to the public market. When they reached the junction of Toting Reyes and Roxas Avenues, appellant told Dela Cruz to turn right at Rizal Memorial College of Arts and Trade (RMCAT) They noticed at this point that another tricycle, which came from the direction of Kingsmen Building, was following them. This prompted appellant to order Dela Cruz to turn left at Magdalena Village instead and to drive faster. During the ride, appellant held Fuentes, who was crouching, by her hair, pressing her head down. He also kicked her and struck her head with the butt of his gun whenever she struggled. Dela Cruz

asked appellant to stop hurting Fuentes and to have pity but his entreaties fell on deaf ears. Appellant even threatened to shoot Dela Cruz if he does not stop complaining. 'When they reached New Buswang, they noticed that the other tricycle they saw earlier was still trailing them by about 15 meters. As they approached Magdalena Village after passing Camp Martelino, Fuentes struggled so appellant hit her again. Dela Cruz told appellant to desist from striking her. Appellant did not take kindly to the unsolicited advice and fired his gun in the air. Seeing an opportunity for escape, Dela Cruz suddenly swerved the tricycle towards Magdalena Village until the vehicle toppled over. When the tricycle was lifted from its fallen state, Dela Cruz immediately jumped out of it and ran towards a feeder road leading to the Cooperative Rural Bank. He was resting at the back of the bank for a few minutes when appellant also arrived. Enraged, Dela Cruz this time drew his service firearm and aimed it at appellant, demanding from the latter an explanation why he had to involve him (Dela Cruz). With an assurance that he would own up the responsibility for everything that had happened, appellant was able to calm Dela Cruz down. After returning his service gun to the holster, Dela Cruz headed back to the road. Behind him following was appellant. Then, they saw Barte, from whom appellant rented the tricycle earlier, trying to start the engine thereof. It turned out that it was Barte who was in the other tricycle, driven by Ramon Yael. Appellant assured Barte that he will pay for all the damages of the rented tricycle. "Meanwhile, Dela Cruz went back to Kingsmen Building aboard Yael's tricycle to look for his dancer girlfriend, Myka (or Mika) Banzon (or Vanson), but she was not there. Dela Cruz, with Yael in his tricycle, were about to go to Banzon's boarding house when appellant approached them, insisting that Yael take him first to Magdalena Village. Afraid of appellant, Yael agreed. When they got there, particularly where Barte's tricycle turned over earlier, appellant walked towards a mango tree. Curious, Dela Cruz followed him. Dela Cruz saw appellant hitting Fuentes on the head with his gun. She was lying down face up, groaning. Dela Cruz admonished and pushed appellant away, telling him to have pity on Fuentes. Since he did not want to get involved further nor did he want to. see any more of what appellant was up to, Dela Cruz walked back to the tricycle He took a last look back and saw appellant getting something from the pocket of Fuentes and putting it inside the pocket of his chaleco. Soon enough, appellant caught up with Dela Cruz and Yael as they were about to leave and they all went back to Kingsmen Building. "Dela Cruz finally found Banzon at the third floor of the building and informed her that he was going to bring her home already. She passed by the ladies' room while he stood watch outside. Appellant arrived and told Dela Cruz and Banzon that they had to talk inside the ladies' room. He was giving Dela Cruz and Banzon P600.00 each, but they declined to accept the money. Appellant threatened Dela Cruz not to squeal whatever he knows or appellant will kill him and his family. When appellant insisted in giving the money, Dela Cruz took it only to place it on the sink, then, he and Banzon left. "Dela Cruz and Banzon were leaving for her boarding house aboard Yael's tricycle when appellant caught up with them again and ordered Yael to first take him to Ceres terminal. As they passed the Tumbokan Memorial Hospital, they came across Barte driving his tricycle. After signaling for Barte to stop, appellant gave him money. Dela Cruz and Banzon quickly transferred to Barte's tricycle since Yael still had to take appellant to the terminal. In the course of the transfer to the other tricycle, appellant placed something inside the pocket of Dela Cruz who thought nothing of it as he was in a hurry to go home. In Banzon's boarding house, Dela Cruz found out that what appellant had put in his pocket was a blood-stained necklace wrapped in a piece of paper. Banzon also showed him a bag she found at the place where Barte's tricycle turned turtle. Dela Cruz planned to return the necklace and the bag the next day. "In the evening of June 5, 1995, Dela Cruz reported for work. Appellant asked him for the necklace so that he could pawn it. Dela Cruz, however, was unable to give the necklace back because in the morning of June 6, 1995, the police raided the boarding house of Banzon. Among those confiscated by the police was his wallet where he placed the necklace. The police invited Dela Cruz to the police station to shed light on what he knew

about a murder committed in Magdalena Village. The police had earlier confirmed an anonymous call that a dead woman was found at New Buswang. Twelve 100-peso bills were found at the scene, as well as a broken windshield that was traced to the tricycle rented by Barte to appellant. The dead person was identified as Fuentes by her daughter, Analiza Fuentes Pronton. Thus, Dela Cruz revealed everything that appellant had done. The police asked Dela Cruz to go with them to Lalab, Bataan where appellant was arrested. Appellant was then brought to the Kalibo Police Station for investigation."5 Carlos Feliciano, in his testimony, denied the asseverations of state witness de la Cruz. He claimed that the accusations were motivated out of pure spite and revenge borne of the hostility between them due to workrelated differences. An altercation arose between him and de la Cruz two months before the incident, on 06 April 1995, when a customer had complained to the Kingsmen Building manager that the toolbox of his tricycle, parked near the building, was missing. The manager then ordered Feliciano to go to the parking lot and summon de la Cruz. Feliciano r reported back to say that he did not find de la Cruz in his designated post, a fact that de la Cruz later resented. The next incident happened the following month. On the evening of 01 May 1995, Myca Banson, the live-in girlfriend of de la Cruz, was to be "taken out" by a customer. Feliciano upon orders of the management, refused de la Cruz entry within the premises of the pub house, in order to avoid any possible trouble, which culminated in a physical tussle between the two men and ended with de la Cruz aiming his gun at Feliciano. The third incident occurred when a motorcycle parked at the Kingsmen parking lot could not be located and de la Cruz again was not at his post. Feliciano reported the matter to the manager and, two days later, de la Cruz was fired from work. Feliciano admitted having seen de la Cruz at about 9:30 on the evening of 04 June 1995 escorting Myca Banson to the pubhouse. De la Cruz stayed at the billiard house fronting Kingsmen, while waiting for Myca to finish work, often at 4:00 in the early morning of the next day. Feliciano said that he knew Ramon Barte, the driver, being a habitue of the Kingsmen premises. It was Barte who would often fetch Rodel de la Cruz and Myca Banson from work during early mornings. The defense placed at the stand two additional witnesses. Eduardo Magsangya, a cigarette vendor at the Ceres terminal, testified that on the late evening of 04 June 1995, de la Cruz went to see him at the Ceres Terminal to inquire whether Teresita Fuentes had already arrived. Magsangya responded in the negative. De la Cruz returned to the terminal looking for Teresita four times that night. Magsangya knew Teresita as being a biweekly passenger of the 2:00 a.m. bus for Iloilo and de la Cruz as a security guard at Kingsmen where he would at times sell his wares. Jefferson Arafol, a pahinante of Ideal Trucking, testified that at approximately 2:30 on the early morning of 05 June 1995, he and truck driver "Oca"," were transporting coconut lumber to Iloilo, when, at the vicinity of Magdalena Village, they spotted a tricycle running at high speed, eventually overtaking them. Its fast pace caused the vehicle to turn turtle. When Arafol approached, the tricycle diver, Rodel de la Cruz, pointed a gun at him and told him not to come any closer. Arafol was acquainted with Rodel de la Cruz and Carlos Feliciano because he frequented Kingsmen on Sundays after getting his salary. The pahinante saw two more persons with de la Cruz, one male and the other female Arafol was certain that the male companion of de la Cruz was not Carlos Feliciano. While de la Cruz was pointing his gun at him, his male companion was dragging an unidentified woman towards the nearby mango tree. When the trial concluded, the Regional Trial Court of Kalibo, Aklan, found for the prosecution and pronounced accused Carlos, Feliciano guilty beyond reasonable doubt of the crime of Robbery with Homicide and r sentenced him to suffer the extreme penalty of death "WHEREFORE, finding the accused CARLOS FELICIANO Y MARCELINO guilty beyond reasonable doubt as principal by direct participation of the crime of Robbery with Homicide defined and penalized under paragraph 1 of Article 294 x x x, with three aggravating circumstances, the court hereby imposes upon the said accused the supreme penalty of DEATH and to indemnify the heirs of Teresita Fuentes the sum of P50,000.00. "The caliber .38 revolver Squires Bingham with SN #14223 (Exhibit J) used by Feliciano is hereby forfeited and confiscated in favor of the government to be disposed in accordance with law.

"Costs against the accused."6 In an automatic review before this tribunal, appellant Carlos Feliciano raised the following assignment of errors "I. "THE TRIAL COURT ERRED IN DISCHARGING THE ACCUSED RODEL DE LA CRUZ TO BE THE STATE WITNESS AGAINST CO-ACCUSED CARLOS FELICIANO DESPITE STRONG OBJECTIONS FROM THE DEFENSE. "II. "THE TRIAL COURT ERRED IN RELYING HEAVILY ON THE WELL-REHEARSED TESTIMONY OF PROSECUTION WITNESSES. "III 'THE TRIAL COURT ERRED IN CONVICTING ACCUSED-APPELLANT CARLOS FELICIANO FOR THE CRIME CHARGED IN THE INFORMATION DESPITE THE INSUFFICIENCY OF EVIDENCE AGAINST HIM."7 The Court is inclined to agree with appellant that state witness Rodel de la Cruz appears to be far from being the inculpable young man who has simply been an unwitting and reluctant accomplice to a gruesome crime. Several incidents militate against his innocence. The events, related by him, make tenuous the purported threat and intimidation exerted by appellant over him. The behavior of Rodel de la Cruz during and immediately after the crime could not be that of a threatened, frightened man. If he indeed wanted to escape, he had in his possession his own service gun, and he was in control of the tricycle. He had enough advantage and chances to escape, if he really wanted to, from Feliciano who was at that time engrossed at restraining a struggling victim. In fact, it was de la Cruz who was caught in the possession of the dead woman's necklace. Another damning evidence against de la Cruz was the letter introduced by police inspector Winnie Jereza, Chief of Intelligence of the Philippine National Police of Kalibo, Aklan, who, after taking the witness stand for the prosecution, testified for the defense. The letter, dated 02 June 1995, came from one Roger R. Zaradulla, proprietor of the Rheaza Security Agency, addressed to SPO3 Gregorio F. Ingenerio of the Kalibo Police Station, to the effect that the detail order of Rodel de la Cruz to the Kingsmen Disco pub had expired as of 31 May 1995. According to Zaradulla, de la Cruz was nowhere to be found and his whereabouts were unknown. Apprehensive that de la Cruz had gone on AWOL without first surrendering to the agency the firearm issued to him, Zaradulla sought the arrest of de la Cruz by the police. The evident attempt, nevertheless, of the accused turned state witness to mitigate his own culpability did not adversely affect his discharge nor did it render completely weightless the evidentiary value of his testimony. The rules of procedure allowing the discharge of an accused to instead be a witness for the state8 is not a home grown innovation but is one with a long and interesting history. It has its origins in the common law of ancient England where faithful performance of such an agreement with the Crown could entitle a criminal offender to an equitable right to a recommendation for executive clemency. The practice, soon recognized through widespread statutory enactments in offer jurisdictions, finally has found its way to our own criminal procedure in a short and compact military General Order No. 58 issued in 1900. Its adoption highlights the emphasis

placed by the new system on the presumption of innocence in favor of the accused, on the requirement that the State must first establish its case beyond a reasonable doubt before an accused can be called upon to defend himself, and on the proscription against compelling an accused to be a witness against himself as well as against drawing inferences of guilt from his silence.9 Underlying the rule is the deep-lying intent of the State not to let a crime that has been committed go unpunished by allowing an accused who appears not to be the most guilty to testify, in exchange for an outright acquittal, against a more guilty co accused. It is aimed at achieving the greater purpose of securing the conviction of the most guilty and the greatest number among the accused for an offense committed.10 In this jurisdiction, it is the trial court judge who has the exclusive responsibility of ensuring that the conditions prescribed by the rules exist.11 This grant is not one of arbitrary discretion but rather a sound judicial prerogative to be exercised with due regard to the proper and correct dispensation of criminal justice.12 But that there would be the possibility of error on the part of the judge is understandable. A trial judge cannot be expected or required to inform himself with absolute certainty at the outset of the trial as to everything which may develop in the course of the trial in regard to the guilty participation of the accused in the commission of the crime charged in the complaint.13 If that were possible, the judge would conveniently rely on large part upon the suggestion and the information furnished by the prosecuting officer in coming to the conclusion as to the "necessity for the testimony of the accused whose discharge is requested, as to the "availability of other direct or corroborative evidence," and as to who among the accused is the "most guilty," and so the like.14 Then, there would be little need for the formality of a trial.15 Thus, here, even while one might be convinced that state witness Rodel de la Cruz would, on the basis of evidence ultimately submitted, appear to be equally as, and not less than, guilty in conspiracy with appellant Carlos Feliciano, the hands of the State are now stayed and the Court must assure the exemption of the witness from punishment. It is widely accepted that the discharge of an accused to become a state witness has the same effect as an acquittal. The impropriety of the discharge would not have any effect on the competency and quality of the testimony, nor would it have the consequence of withdrawing his immunity from prosecution.16 A discharge, if granted at the stage where jeopardy has already attached, is equivalent to an acquittal, such that further prosecution would be tantamount to the state reneging on its part of the agreement and unconstitutionally placing the state witness in doubt jeopardy. The rule, of course, is not always irreversible. In an instance where the discharged accused fails to fulfill his part of the bargain and refuses to testify against his co-accused, the benefit of his discharge can be withdrawn and he can again be prosecuted for the same offense. In US vs. de Guzman,17 one of the earlier cases discussing this issue, Justice Carson had occasion to briefly touch on the immunity clauses in the Acts of the United States Congress and some States. In Wisconsin, the immunity clause contained a proviso providing that persons committing perjury when called upon to testify could be punished therefor.18 Oklahoma law suffered from the absence of any reservation; thus observed Justice Carson "x x x We have no such reservation in our constitutional provision; and, as before said, if we should follow the precedents, when the witness does not speak the truth, the State would be left without redress, although the witness had violated the purpose and spirit of the constitution. We cannot believe that it was the purpose of the intelligent and justice-loving people of Oklahoma, when they voted for the adoption of the constitution, to grant immunity to any man, based upon a lie, or, in other words, that they intended that the commission of perjury should atone for an offense already committed. It is a familiar rule of common law, common sense, and common justice that a legal right cannot be based upon fraud. We therefore hold that the witness who claims immunity on account of self-incriminatory testimony which he had been compelled to give must act in good faith with the State, and must make truthful replies to the questions which are propounded to him, and which he had been compelled to answer, and that any material concealment or suppression of the truth on his part will deprive him of the immunity provided by the constitution; and the witness must testify to something which, if true, would tend to criminate him. This immunity is only granted to those who earn it by testifying in good

faith. In our judgment any other construction would be an insult to and a libel upon the intelligence of the people of Oklahoma, an outrage on law, and a prostitution of justice."19 Despite an obvious attempt to downgrade his own participation in the crime, state witness de la Cruz, nevertheless, did not renege from his agreement to give a good account of the crime, enough to indeed substantiate the conviction of his co-accused, now appellant Carlos Feliciano, by the trial court. On significant points, the damaging testimony of de la Cruz against appellant was corroborated by Ruben Barte and Ramon Yael. On the night of the incident, Feliciano hired his vehicle and drove it himself while De la Cruz was seated on its passenger seat. When the two did not return at the appointed time, Barte asked Ramon Yael, another tricycle driver who happened to be at the Kingsmen parking area, to accompany him to look for them. Myca Banson decided to come with them. After a while, the trio spotted Barte's tricycle being driven by de la Cruz, and followed it. Barte testified how the first tricycle turned turtle at the junction towards Magdalena Village. When the tricycle tilted, he saw a person in red falling from the vehicle, while another person who was in white, lifted the first person. When the first tricycle precariously lurched, its occupants hurriedly abandoned the vehicle. The obfuscating foliage, however, blocked his view so Barte was not able to identify who was with appellant and de la Cruz nor ascertain where the two men were later headed. When the three of them approached the overturned tricycle they found no one. Near the vehicle, they saw an abandoned bag which Myca Banson hastily retrieved. While Barte struggled to turn his vehicle upright, Myca left with Ramon Yael. Later, while riding his vehicle on his way back, Ruben Barte was forced to stop because its engine stalled. While inspecting the tricycle engine, appellant and de la Cruz approached him, and the former told him not to worry as he would pay for the damages. After a while, at the parking lot of the Kingsmen Building, appellant told him to take his vehicle to a dark place where he wiped off the blood from the tricycle's seats. When they met again several hours later, appellant gave him P450.00 for the damages sustained by the vehicle. Much later, Yael handed him another P250.00 given by appellant as additional payment. Ruben Barte kept quiet about the incident because appellant warned him against reporting the matter to anyone. Ramon Yael corroborated the testimony of Barte, adding that while they were chasing appellant and de la Cruz, one of the two fired a gun in the air, constraining them to decrease their speed. Militating against the unbiased nature of the testimony of these two witnesses was their admission of having willingly accepted the blood money which appellant gave them that could well qualify them as being themselves accessories to the crime.20 Appellant Carlos Feliciano was not able to sufficiently dispute his participation therein. Neither his blanket denial nor his alibi, both inherently weak defenses, was amply proved. Article 294(1) of the Revised Penal Code as amended by Republic Act No. 7659, provides "1. The penalty of reclusion perpetua to death [shall be imposed], when by reason or on occasion of the robbery, the crime of homicide shall have been committed, or when the robbery shall have been accompanied by rape or intentional mutilation or arson." (Emphasis supplied.) Given the evidence in this case, heretofore narrated, the Court is not convinced that the prosecution has succeeded in establishing beyond reasonable doubt any of the aggravating circumstances alleged in the information that can warrant the imposition of the maximum of the penalty prescribed by law. Evidence is wanting that appellant has especially sought nighttime to perpetrate the crime or that the criminal act has been preceded, required in evident premeditation, by cool thought and reflection. Not only is treachery an aggravating circumstance merely applicable to crimes against persons but neither also has the mode of attack on the victim of the robbery been shown to have been consciously adopted. WHEREFORE, the judgment of the court a quo is AFFIRMED except insofar as it imposed on appellant Carlos Feliciano the penalty of death which is hereby reduced to reclusion perpetua. Costs de oficio. SO ORDERED.

PEOPLE OF THE PHILIPPINES and VILMA CAMPOS, Petitioners, -versusLOUEL UY, TEOFILO PANANGIN, HON. JUDGE MAMINDIARA P. MANGOTARA, Acting Judge, Br. 44, Initao, Misamis Oriental, Respondents. G.R. No. 158157 Present: PANGANIBAN, J., Chairman, SANDOVAL-GUTIERREZ, CORONA, CARPIO MORALES, and GARCIA, JJ. Promulgated: September 30, 2005 xx------------------------------------------------------------------------------xx

DECISION

CARPIO MORALES, J.:

The Decision dated April 7, 2003 of the Regional Trial Court of Misamis Oriental, Branch 44, granting the separate demurrer to evidence of accused Louel Uy and Teofilo Panangin resulting in their acquittal for murder due to insufficiency of evidence, but nevertheless holding them jointly and severally liable to pay P35,000 to the heirs of the victim Rabel Campos representing vigil and burial expenses is being assailed in the present petition for certiorari under Rule 65 of the Revised Rules of Court by the People and the mother of the victim. The victim, Rabel Campos, was found dead with several stab wounds in the morning of March 23, 2001 along the National Highway of Maputi, Naawan, Misamis Oriental. A suspect in the commission of the crime, Teofilo Panangin (Panangin), was arrested on January 22, 2002 by elements of the Special Operation Group and Police Community Precinct 1 of Iligan City. During the investigation conducted by the National Bureau of Investigation-Iligan District Office (NBIILDO) on January 23, 2002, Panangin executed a Sworn Statement[1] with the assistance of Atty. Celso Sarsaba of the Public Attorneys Office (PAO). In his January 23, 2002 Sworn Statement, Panangin related as follows:

On March 22, 2001, around 8:00 p.m., while he was at the Justy Inn, Tibanga, Iligan City, his former employer Louel Uy (Uy), in whose house he stayed from 1993 to 1997, arrived, telling him that he had a problem and that it was he (Panangin) who could help him. He and Uy thereafter repaired to the Sanitarium Hospital where Uys grandmother had just died, after which they proceeded to the house of Uy where the latter gave him a stainless steel knife, instructing him to keep it as they had work to do. Later that night, he and Uy, on board a red Isuzu vehicle, proceeded to Quezon Avenue near the Cathedral where they stopped. Uy then called by cellular phone his live-in partner Rabel, who later was to be the victim of a gruesome death, and instructed her to proceed to where they were. As instructed, Rabel repaired to where they were and joined them on board the vehicle. The three of them thereupon proceeded to the direction of Pagahan, Initao, Misamis Oriental and on reaching this place, Uy negotiated a U-turn. Upon reaching the National Highway in Naawan, Misamis Oriental, Uy stopped the vehicle and alighted. Uy then forcibly pulled Rabel out of the vehicle and as Uy was holding Rabel tightly, he instructed him to stab her. Albeit he was hesitant, as Uy shouted at him and threatened to shoot him with his cal. 45 pistol tucked at his waist, he had no choice but to follow Uys instruction. He thus stabbed Rabel once at the stomach. After he stabbed Rabel, she was able to run away. Uy, however, took the knife from him and chased Rabel. On catching up with her, Uy dragged her to the ground and stabbed her several times until she expired. He and Uy then left for Iligan City, arriving thereat at 1:30 a.m. of March 23, 2001. At the time Panangin gave his Sworn Statement, he was shown a pair of sandals, found and taken by the police at the scene of the crime, bearing the markings Neckersman Switzerland which he confessed to be his, he adding that it was given to him by Edgar Uy, a cousin of Uy. He was also shown a pair of sandals, also recovered from the crime scene, bearing the markings WAGON & RACKS, which he identified to be Rabels. Following the execution by Panangin of his sworn statement-extrajudicial confession on January 23, 2002, Atty. Patricio S. Bernales, Jr., District Agent-in-Charge of the NBI-ILDO, filed on even date a case for murder against Panangin and Uy before the 10th Municipal Circuit Trial Court (MCTC) of Lugait-ManticaoNaawan. During the preliminary investigation before the MCTC, Panangins sworn statement and witnesses were presented. After the preliminary investigation of Panangin was concluded or on January 24, 2002, MCTC Investigating Judge Jose U. Yamut, Sr. issued a Resolution,[2] the pertinent portions of which read: From the evidence adduced or submitted, we are of the OPINION that the killing of CAMPOS was attended by (a) craft; (b) superior strength and evident premeditation (For UY x x x). The OVERT ACTS OF UY AND PANANGIN show that BOTH had the UNITY OF DESIGN and both agreed to kill CAMPOS and decided to kill CAMPOS. IN VIEW OF THE ABOVE, let a WARRANT OF ARREST issue against TEOFILO PANANGIN, for the FELONY of MURDER with NO BAILBOND RECOMMENDED. PANANGIN is principal by direct participation in the killing of CAMPOS. (Citations omitted)

xxx

The investigating judge then directed the issuance of subpoena to Louel Uy for him to appear at a preliminary investigation scheduled on February 4, 2002. The records do not show if the preliminary investigation scheduled on February 4, 2002 pushed through and if it did, what the result was. The records, however, show that Assistant Provincial Prosecutor Mayorico M. Bodbod found the evaluation of the investigating judge to be in order, hence, he affirmed the same by Resolution[3] dated March 19, 2002 and recommended the indictment of Uy and Panangin for murder. An Information[4] was thus filed on April 5, 2002 charging Uy and Panangin with murder as follows: That on March 22, 2001 at around 11:30 oclock more or less in the evening at Maputi, Nawan, Misamis Oriental, Philippines and within the jurisdiction of this Honorable Court the above-named accused, Louel Uy and Teofilo Panangin with intent to kill and treachery, evident premeditation and abuse of superior strength did then and there, willfully, unlawfully and feloniously stab one Rabel Campos, several times which resulted to her untimely death. CONTRARY TO and in violation of Article 248 of the Revised Penal Code in relation to Republic Act No. 7659.

When arraigned, both accused entered a plea of not guilty.[5] Aside from the sworn statement-extrajudicial confession of Panangin and photographs[6] of the victim Rabel taken when she was found dead lying on a grassy area, the prosecution presented 11 witnesses, the most vital of which insofar as the resolution of the petition at bar is concerned are the testimonies of PAO Atty. Celso Sarsaba, NBI agent Gerardo Tamayo, Uys girlfriend Iris Paumar and her moth er Julieta Paumar which follow after their respective names. Atty. Celso Sarsaba[7] of the PAO: He assisted Panangin during the investigation conducted on January 23, 2002 at Police Station I. Before Panangin gave a statement, Gerardo Tamayo (Tamayo) of the NBI informed him of his constitutional rights and warned him that his statement might be used against him, but Panangin went ahead and gave his statement. Tamayo then proceeded to investigate Panangin who was handcuffed at the inception of the investigation, although in the course thereof his handcuffs were removed as he was allowed to smoke. The investigation was in the form of question and answer, and Panangin had the opportunity to review every item thereof which was translated into the Visayan dialect. After the interview, he asked Panangin whether he had something to replace or amend or substitute in his statement to which Panangin replied in the negative. Panangin thereafter affixed his signature on his statement in his presence. NBI agent Gerardo Tamayo:[8] He investigated Panangin who informed him that he had no counsel to assist him. He thus requested PAO lawyer Atty. Sarsaba to assist Panangin who had earlier been arrested not in connection with the death of Rabel but with another case. In apprising Panangin of his constitutional rights, he spoke to him in Visayan.

Iris Paumar:[9] Echoing the contents of her affidavit executed on May 2, 2001,[10] she related that Uy, with whom she had a five-month romantic relationship, together with Panangin, went to her house on March 23, 2001 for her birthday. A few weeks before Rabels death, she and Rabel figured in a slapping incident. Julieta Paumar:[11] Her daughter Iris had a romantic relationship with Uy who, together with Panangin, went to their house at Purok 8, Tipanoy, Iligan City at dawn of March 23, 2001 for her daughters birthday. She affirmed the contents of her affidavit[12] dated April 10, 2001 which she executed in connection with the case. Following the filing and the subsequent admission on February 4 and 13, 2003 of its Formal Offer of Evidence, including Panangins Sworn Statement, the prosecution rested its case. Thereafter, Panangin, with leave of court, filed on March 3, 2003 a demurrer to evidence[13] on the ground that when he executed his extra-judicial confession, his rights under Sec. 12, Bill of Rights of the Constitution were violated in that he was man-handled and detained . . . and while being handcuffed his extrajudicial confession was taken by . . . Tamayo who, however failed and never informed [him] of his constitutional rights as accused. To the demurrer, Panangin attached his Affidavit[14] dated July 1, 2002 retracting his January 23, 2002 sworn statement-extra-judicial confession. Uy, also with leave of court, filed a separate demurrer to evidence[15] essentially echoing the groundsbases of Panangins demurrer. More than a month from the filing of the demurrer to evidence, the trial court, by Decision[16] dated April 7, 2003, granted the demurrer, the dispositive portion of which is quoted verbatim: WHEREFORE, the demurrer to evidence is hereby granted and the accused Louel Uy and Teofilo Panangin are hereby acquitted for insufficiency of evidence. However, accused are hereby ordered jointly and solidarily to pay P35,000.00 to the heirs of the victim as their heirs in the vigil and burial expenses of the victim. Without subsidiary imprisonment in case of insolvency.

II. WHETHER OR NOT THE PROSECUTION WAS ABLE TO PROVE THE GUILT OF THE ACCUSED BEYOND REASONABLE DOUBT[;] and III. WHETHER OR NOT THE HONORABLE ACTING JUDGE COMMITTED GRAVE ABUSE OF DISCRETION WHICH WOULD RESULT TO LACK OF JURISDICTION WHEN HE GRANTED THE DEMURRER TO EVIDENCE ON THE GROUND THAT THE EXTRA-JUDICIAL CONFESSION EXECUTED BY ACCUSED, TEOFILO PANANGIN IS INADMISSIBLE IN EVIDENCE AFTER ADMITTING THE SAME TO BE PART OF THE EVIDENCE IN CHIEF OF THE PROSECUTION.[17]

Petitioners impute grave abuse of discretion on the part of the trial court when it granted the demurrer to evidence. They contend that when Panangin executed his extra-judicial confession, he was fully apprised of his constitutional rights and the basic requirements of law were fully complied with; and that in any event, since the trial court admitted Panangins extra-judicial confession, the issue of its admissibility had become moot and academic. The general rule in this jurisdiction is that a judgment of acquittal is final and unappealable. People v. Court of Appeals[18] explains the rationale of this rule: In our jurisdiction, the finality-of-acquittal doctrine as a safeguard against double jeopardy faithfully adheres to the principle first enunciated in Kepner v. United States. In this case, verdicts of acquittal are to be regarded as absolutely final and irreviewable. The cases of United States v. Yam Tung Way, People v. Bringas, Gandicela v. Lutero, People v. Cabarles, People v. Bao, to name a few, are illustrative cases. The fundamental philosophy behind the constitutional proscription against double jeopardy is to afford the defendant, who has been acquitted, final repose and safeguard him from government oppression through the abuse of criminal processes. As succinctly observed in Green v. United States "(t)he underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent, he may be found guilty." (Underscoring supplied) The same rule applies in criminal cases where a demurrer to evidence is granted. As held in the case of People v. Sandiganbayan:[19] The demurrer to evidence in criminal cases, such as the one at bar, is filed after the prosecution had rested its case, and when the same is granted, it calls for an appreciation of the evidence adduced by the prosecution and its sufficiency to warrant conviction beyond reasonable doubt, resulting in a dismissal of the case on the merits, tantamount to an acquittal of the accused. Such dismissal of a criminal case by the grant of demurrer to evidence may not be appealed, for to do so would be to place the accused in double jeopardy. The verdict being one of acquittal, the case ends there. (Italics in the original)

In granting the separate demurrer of the accused, the trial court held that the testimonial evidence adduced by the prosecution is hearsay, if not speculatory; that there was no evidence adduced to the effect that Uy was the last person seen with the victim; that Panangins extra-judicial confession-sworn statement of January 23, 2002 was not voluntary as it was subsequently retracted (on July 1, 2002) and even if it were not, it is inadmissible since [i]t is a fruit of poisonous tree as it was obtained from Panangin as a result of his illegal arrest. Hence, this petition for certiorari filed by the People and the victims mother, raising the following issues:

I. WHETHER OR NOT THE EXTRA-JUDICIAL CONFESSION EXECUTED BY ACCUSED, TEOFILO PANANGIN IS ADMISSIBLE IN EVIDENCE THAT WOULD WARRANT HIS OWN CONVICTION FOR THE GRUESOME CRIME OF MURDER OF WHICH HE IS BEING INDICTED[;]

Like any other rule, however, the above-said rule is not absolute. By way of exception, a judgment of acquittal in a criminal case may be assailed in a petition for certiorari under Rule 65 of the Rules of Court upon a clear showing by the petitioner that the lower court, in acquitting the accused, committed not merely reversible errors of judgment but also grave abuse of discretion amounting to lack or excess of jurisdiction or a denial of due process, thus rendering the assailed judgment void.[20]

In People v. Court of Appeals,[21] this Court had the occasion to elucidate on the special civil action of certiorari, the remedy availed of by petitioners: To question the jurisdiction of the lower court or the agency exercising judicial or quasi-judicial functions, the remedy is a special civil action for certiorari under Rule 65 of the Rules of Court. The petitioner in such cases must clearly show that the public respondent acted without jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction. Grave abuse of discretion defies exact definition, but it generally refers to capricious or whimsical exercise of judgment as is equivalent to lack of jurisdiction. The abuse of discretion must be patent and gross as to amount to an evasion of positive duty or a virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law, as where the power is exercised in an arbitrary and despotic manner by reason of passion and hostility.

mere allegations of force, intimidation, violence or torture, without any proof whatsoever. Bare assertions will certainly not suffice to overturn the presumption of voluntariness. xxx (Italics in the original; emphasis and underscoring supplied).

En passant, on the defense claim that in the execution of his sworn statement, Panangin was not properly apprised of his constitutional rights by the assisting counsel, Atty. Sarsabas testimony shows otherwise: ATTY.CARASCO Q During the time when the investigation was conducted were you present? A Whole duration of the investigation I was sitting beside the accused. Q Could you tell us the length of time the investigation was conducted? How many hours? A In so far as I can remember it started at around 1:30 and we finished at quarter to six. So, more than four hours. Q Before the investigation started, did you have a chance to talk to accused Teofilo Panangin? A Yes. After Special Agent Gerardo Tamayo had informed him of his constitutional rights, I asked him again if he would still continue or whether his statement is voluntary and he was not coerced to give his voluntary statement.

This Court finds that the trial court committed not only gross reversible error of judgment but also was actuated with grave abuse of discretion, exceeding the parameters of its jurisdiction, in holding that Panangins retracting of his confession shows that the execution thereof was involuntary and that in any event it was inadmissible as it was a fruit of [a] poisonous tree. The trial court blindly accepted the claim of the defense that the confession was not made voluntarily on the basis of an affidavit executed by Panangin on July 1, 2002 or more than 5 months after his sworn statementconfession was given and after the prosecution rested its case, which affidavit Panangin was not even called to identify and affirm at the witness stand, hence, hearsay. The decision of the trial court undoubtedly deprived the prosecution of due process as it was not given the opportunity to check the veracity of Panangins alleged retraction. It bears emphasis that the State, just like the accused, is entitled to due process. People v. Bocar so teaches:[22] The cardinal precept is that where there is a violation of basic constitutional rights, courts are ousted of their jurisdiction. Thus, the violation of the States right to due process raises a serious jurisdictional issue which cannot be glossed over or disregarded at will. Where the denial of the fundamental right of due process is apparent, a decision rendered in disregard of that right is void for lack of jurisdiction. Any judgment or decision rendered notwithstanding such violation may be regarded as a lawless thing, which can be treated as an outlaw and slain at sight, or ignored wherever it exhibits its head. (Emphasis and underscoring supplied)

Q A xxx

After appraising the right of the accused did he still continue to give his voluntary statement? Yes, maam.[24]

Q And in the first part of the statement the language used is English. Could you recall if the given statement was reduced into the dialect known to accused Teofilo Panangin? A After Special Agent Gerardo Tamayo had been through with the question and answer I had the opportunity to review every item of the question translated into Visayan dialect which I asked the accused whether he has something to replace, amend or substitute and he persistedly affirmed that there is nothing to be changed.[25] xxx (CROSS EXAMINATION BY ATTY. MARANDA) Q Compaero, you will attest to the truth in correctness of all the contents of the Sworn Statement given by Panangin, consisting of four pages? A I will attest. Q A And that these contents, all of these are all true and correct to the best of your knowledge? Yes.

Moreover, the exclusion of the extra-judicial confession on the basis of Panangins unsubstantiated claim that it was not voluntarily made is contrary to what People v. Porio[23] instructs: A confession is presumed to be voluntary until the contrary is proved and the declarant bears the burden of proving that his confession is involuntary and untrue. Appellant was unable to discharge this burden. He failed to present evidence that he was intimidated or practically forced to execute or sign his Sinumpaang Salaysay. xxx All the above facts indicate that appellant executed his Sinumpaang Salaysay freely and voluntarily. To hold otherwise is to facilitate the retraction by appellant of his solemnly made statements at the

Q And that you read this, particularly the Sworn Statement of Loloy Panangin and you see no mistakes of the statement? A As far as the contents of that voluntary statement of the accused, it was reviewed before the final printing of the statement. All questions and answers were again reviewed and I asked him again whether he has something to replace but he said in negative.[26] xxx Q You were present when Investigator Gerardo Tamayo enumerated to the accused his constitutional rights? A Yes.

ATTY. CARASCO: That will be all, Your Honor. COURT: Q Is that the only question that you asked to the accused? A As far as I can remember, the question and answer started right away, so I have no opportunity to talk to him longer. Q A You did not ask him the effect of his voluntary confession? It w as part of the constitutional rights.

Q It was Special Agent Tamayo who told the accused of his constitutional rights and not you? A At first, it was Special Agent Tamayo who informed him of his constitutional rights and I again asked him whether his statement to be given by him are voluntary and not coerced. Q A Q A You asked the accused only if his statement are voluntary? Yes. And that question was asked after the sworn statement was made and ready for signing, right? Before and after.

Q My question is whether or not you have told the accused regarding the effect of his voluntary confession? A Yes. Q A Q A What did he say? He still continued, Your Honor. Did you explain him in Visayan dialect? Yes. All were translated into Visayan dialect.[28]

Q The right to which the accused had been allegedly informed by Agent Tamayo of his right to remain silent and the right to choose his own counsel was indicated in the sworn statement? A Yes. Q A Q A No other right? All the rights. And what are these rights? His right to independent counsel, his right to remain silent and he has the right to choose.

x x x (Emphasis and underscoring supplied) The affidavit of retraction, attached to the defenses demurrer to evidence - basis of its thesis that Panangins sworn statement of January 23, 20002 was flawed due to its involuntariness, being hearsay, the above-quoted categorical statements of Atty. Sarsaba claiming otherwise stands unrefuted. The burden of the evidence thus passed to the defense. The trial courts ruling that even if Panangins confession were not retracted, it is still inadmissible, being the fruit of [a] poisonous tree or illegal arrest, Sections 2 and 3 of Art. III of the Constitu tion read:[29] xxx SEC. 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, . . . SEC. 3. . . .

Q So the constitutional rights of the accused to which he was informed were all enumerated in the sworn statement, right? A Yes.[27] xxx Q Since it was the NBI who requested you to appear on your office, what did you do when you arrived?

COURT: Witness may answer. A When I arrived there, I asked the NBI, Gerry Tamayo if this is the accused, sitting beside him. I also talked to the accused and I informed him that I am his counsel, per request by NBI, Gerry Tamayo and I also asked him if he will still continue to give his statement voluntarily, that he was not coerced of course to give his sworn statement.

(2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding. . . . (Emphasis supplied), The inadmissible evidence termed as fruit of a poisonous tree in jurisprudence is that contemplated in abovequoted constitutional provisions. It refers to object, not testimonial, evidence. And it refers to an object seized in the course of an illegal search and seizure.

In fine, since as reflected above, the trial court committed not only gross errors of judgment but also grave abuse of discretion in the grant of the defenses demurrer to evidence, no valid judgment was rendered, preventing jeopardy to attach. A remand of the case for further appropriate proceedings is thus warranted and it does not violate the accuseds right against double jeopardy. This Court will not close its eyes to miscarriages of justice brought about by precipitate actions taken by trial courts in criminal cases resulting to the acquittal of the accused. As the court of last resort, it is its sacred duty to maintain its vigilance against the haphazard application of the finality of acquittal rule on the ground of double jeopardy, to insure that lawbreakers do not seek refuge thereunder to the prejudice of public justice. A final note. Also en passant, in holding that the extra-judicial confession of Panangin is inadmissible and that the testimonial evidence adduced by the prosecution amounts to mere suspicions and speculations, the trial court in effect held that no evidence imputing authorship of the crime to the accused was presented. But an acquittal based on that ground closes the door to civil liability, for a person who has been found not to be the perpetrator of any act or omission cannot be held liable for such act or omission.[30] WHEREFORE, the petition is hereby GRANTED. The April 7, 2003 Decision of the Regional Trial Court of Misamis Oriental, Branch 44 in Criminal Case No. 2002-349 is hereby SET ASIDE and the case is REMANDED to said court for further proceedings in line with the foregoing disquisitions. SO ORDERED. G.R. No. L-54645-76

The petition for review filed by Lorenzo Ga. Cesar was granted by this Court and in the decision rendered on January 17, 1985 in G.R. Nos. L-54719-50, 134 SCRA 105, the Court en banc, reversed the decision of the Sandiganbayan and acquitted Lorenzo Ga. Cesar. The charge and the evidence submitted against Lorenzo Ga. Cesar being one and the same against the herein petitioner Reynaldo R. Bayot, the Court should do no less with respect to the latter. Reynaldo R. Bayot and Lorenzo Ga. Cesar, were among the thirteen officials and employees of the Ministry of Education and Culture who, in thirty-two separate Informations were charged before the Sandiganbayan, with the crime of estafa thru falsification of public documents. Accused AMADO FERNANDEZ and JOSEPHINE ESTANISLAO who were the ones principally blamed for the said crimes managed to flee abroad and were not arraigned. Five other accused, JAIME LUBINA, a cashier aide and JUANITO DALANGIN, ERNESTO DE GUZMAN, SERGIO GARCIA, and LAUREANO GARCIA, paying tellers in the Bureau of Treasury, were acquitted. Those convicted by the Sandiganbayan were Iluminada Vizco, cashier of the Ministry of Education and Culture in Manila, Rosalie Lopez, a Senior Budget Examiner of the MEC, Salvador Daza, Assistant National Treasurer of the Bureau of Treasury, as well as Reynaldo R. Bayot and Lorenzo Ga. Cesar. The Informations in the thirty-two cases of estafa thru falsification of public documents, subject of the instant petition, except for the names of the paying tellers, the dates of the commission of the offense and the amount involved uniformly chargeThat in, about and during the period ... 1 and within the jurisdiction of this Honorable Court, the accused Amado Fernandez, Superintendent of the Teachers' Camp in Baguio and Joseph Estanislao, Cashier of the same office with the intent of defrauding the Philippine Government and with the indispensable cooperation and assistance of Lorenzo Cesar, former Assistant Director of the Bureau of Elementary Education; Reynaldo Bayot, a former Auditor of the Ministry of Education and Culture MEC; Jaime Lubina, a Cashier's aide of the Teachers' Camp in Baguio Iluminada Vizco, Cashier of the Ministry of Education and Culture in Manila; Maximiano Huguete, a cashier assistant of the Ministry of Education and Culture in Manila; Rosalie Lopez, a Ministry of Education Senior Budget Examiner; Salvador Daza, Assistant National Cashier of the Bureau of Treasury and ... 2 a paying teller of the Bureau of Treasury, are taking advantage of their positions and mutually helping one another, did then and there wilfully, unlawfully and feloniously case the preparation and falsification of the following checks ... 3 by making it appear that all the foregoing checks were duly funded and covered by cash disbursement ceilings of the Ministry of Education and Culture; that said checks were payable to suppliers in payment of previously delivered construction supplies and materials; and that the same checks were supported by duly prepared and approved vouchers; when in truth and in fact as respondents knew, all of the foregoing were all false and incorrect and by making it appear further that the signatories to the TCAA checks namely: Lorenzo Cezar and Reynaldo Bayot were duly authorized to sign and issue the said checks and that the same checks were an regularly endorsed to either Amado Fernandez or Joseph Estanislao when in truth, and in fact, as all the respondents knew, all these were not true because Lorenzo Cesar and Reynaldo Bayot were no longer authorized to sign Ministry of Education and Culture TCAA chedks and the supposed payees never delivered and alleged supplies and thus never endorsed the TCAA Checks and as a result of all of the foregoing falsifications, the said accused were able to illegally encash and get the proceeds of all of the stated TCAA checks in the total amount of ... 4 of which offenses were clearly committed in relation to the offices of the accused, and once in the possession of the said amount the accused misappropriated, misapplied and converted the same amount for their own personal needs to the damage and prejudice of the Philippine Government in the total amount of ... (Decision, Rollo, pp. 37-38) After arraignment and trial of the various accused, except those two accused who had fled to another country, the trial court rendered its decision stating the following findings of facts: xxx xxx xxx

December 18, 1986

REYNALDO R. BAYOT, petitioner, vs. THE SANDIGANBAYAN AND PEOPLE OF THE PHILIPPINES, respondents. Alfredo Estrella and Ramon Quisumbing, Jr. for petitioner. Fred Henry V. Marallag for petitioners-intervenors. The Solicitor General for respondents.

ALAMPAY, J.: The petition for review in this case is intrinsically and inseparably linked to another case earlier resolved by this Court and which is G.R. Nos. 54719-50, entitled "Lorenzo Ga. Cesar versus Honorable Sandiganbayan and People of the Philippines." In the abovementioned case, the evidence submitted by the prosecution which served as basis of the Sandiganbayan's decision are no less than the evidence adduced against the herein petitioner, Reynaldo Bayot. Petitioner herein, Reynaldo R. Bayot, together with his co-accused Lorenzo Ga. Cesar, was one of those charged and convicted in a joint decision by the Sandiganbayan, of the crime of estafa thru falsification of public documents. Both were sentenced to a total of 577 years imprisonment by the Sandiganbayan on exactly the same evidence which this Court had pronounced as "woefully inadequate" and "too conjectural and presumptive to establish personal culpability." (Cesar vs. Sandiganbayan, 134 SCRA 105)

... Sometime in September 1977, Fernandez, who was then the Superintendent of the Teachers' Camp in Baguio City, one of the agencies under the administration and supervision of the Ministry of Education and Culture which win hereinafter be referred to as (MEC), went to the office of Vizco, cashier of the MEC, located within the compound of the said Ministry in Arroceros, Manila, to seek Vizco's help in typing checks for alleged prior obligation of the Teachers' Camp which were funded but the funds for which have never been used. Fernandez sought the help of Vizco because it would be better for him to go to Baguio City with the approved checks already signed than if he were still to go to Baguio City just to have the checks typed and then come back to Manila for the signatories thereof which will entail too much expense on the part of the government. Vizco was under no obligation to do what Fernandez was requesting from her for that was the duty of the cashier of Teachers' Camp, but nevertheless she acceded thereto though she was surprised by the number of approved vouchers to each of which were attached a check and a piece of paper with a 1975 date. The blank checks were TCAA checks of the SN 4 series issued by the Bureau of Treasury only in 1976 (TSN., 255, February 6, 1980 hearing) and requisitioned in 1977 by the MEC (Exhibits NN-20-1 to NN-20-11) and under the custody of Huguete a cashier assistant of Vizco. The aforesaid vouchers were duly accomplished and the originals thereof were signed by Rosalia Lopez in behalf of David Tomelden, Chief, School Finance Division of the MEC. Assistant Director Lorenzo Ga. Cesar, who in his capacity as Assistant Director of the Bureau of Public Schools in 1975 was authorized to sign checks for payment of the Baguio Teachers' Camp, and Reynaldo Bayot, who as Auditor of the Bureau of Public Schools used to sign the checks of the Teachers' Camp, also signed the originals of the vouchers. There was no supporting document attached to the vouchers whatsoever. Vizco accompanied Fernandez to her two clerks, Merly del Prado and Estrella Samonte, and told the two to attend to the request of Fernandez. Faithful employees as they are, Del Prado and Samonte typed the checks in 4 copies as instructed by putting the 1975 date written on the piece of paper attached to the checks was the date thereof and the other entries therein like the payees, 5 the amounts and the accounting symbols which were taken from the vouchers to which the checks were attached. Actually, however, the Teachers' Camp had no obligation to pay said payees as it had never negotiated with or received any supply and material from them. The name of Cezar and Bayot as the persons who will sign the checks were typed based also on the vouchers or pursuant to the instruction of Fernandez. After typing the checks, the two clerks stamped the word "Paid" on all copies of the vouchers and then brought them to Hilario Guiyab, working directly under Vizco, who initialed them and thereafter forwarded the same to Vizco who also initialed them whenever she had time as a matter of procedure after she the checks at the vouchers from which the clerks copied. The vouchers and checks then given to Fernandez who came back for them. There were about three or four times that Fernandez went back to Vizco's office for preparation of the checks. Eventually, the checks were cashed by Fernandez and Estanislao in the Bureau of Treasury, accompanied once in a while by Lubina, a cashier's aide on the Teachers' Camp. The checks appeared to have been indorsed to them but in truth and in fact such indorsement were all forgeries. Before encashment, the checks were first brought by Fernandez and Estanislao to Daza, Assistant National Cashier, who initialed them to show his approval for encashment pursuant to a standing regulation in his Bureau that TCAA checks in the amount of from P2,000.00 to less than P10,000.00 should first be approved by him before encashment. Then said checks were cashed either by De Guzman, De Guia, Garcia or Dalangin. ... (Rollo, Vol. I, pp. 39-42) With respect to Reynaldo Bayot, it was stated by the trial court that he, with Lorenzo Ga. Cesar signed the vouchers and checks and in this belief convicted both. The trial court said: xxx xxx xxx

significant differences in handwriting characteristics between his signatures on the checks (questioned signatures) and the exemplars of his standard signatures (Exhibit 104-Bayot) dwindles in the face of the testimony and handwriting examination report of Tabayoyong that "there exist fundamental significant similarities in writing characteristics between the questioned signatures and his standard signatures such as in structural pattern, inconspicuous Identifying details, free and coordinated strokes especially in curves and ornate designs of the signatures (Exhibit FFF). ... (Rollo, pp. 52-53) After the petition in this case was given due course with the resolution of the Court dated March 26, 1985 (Rollo, Vol. II, pp. 49-50), petitioner Reynaldo R. Bayot, in addition to his initial memorandum dated August 3, 1981 (Rollo, Vol. II, pp. 390-452), submitted a supplemental memorandum dated March 26, 1985 (Rollo, Vol. II, pp. 494-501), underscoring the fact that the respondent Sandiganbayan, premised his conviction on its consideration that "the originals of the vouchers, the existence of which and the appearance of his signatures thereon has been testified by Bautista, Del Prado, Samonte and Vizco" (Decision of the Sandiganbayan, p. 18). Petitioner Reynaldo R. Bayot assails the conclusion arrived at by the trial court and deplores his conviction by the Sandiganbayan based only on its unwarranted conclusion that the signatures on the vouchers and checks were made by him when there exist contrary and more credible evidence establishing said signatures to be forgeries. He further submits that like his co-accused Lorenzo Ga. Cesar, whom this Court acquitted, he is entitled to a verdict of acquittal as the evidence submitted against both of them were pronounced to be "woefully inadequate" and "too presumptive and conjectural to establish personal culpability." Repeatedly stressed, moreover, by petitioner Bayot, in all his pleadings and from the very start, is that his alleged criminal responsibility would depend on whether he did in fact sign the vouchers and checks in question, matters he had always persistently denied. A review of the testimonies given during the trial of the witnesses, Blanquita Bautista, Del Prado, Samonte, and Vizco, disclose that the conclusion reached by the trial court cannot be sued Without any controversion, it is indicated that Blanquita Bautista, Chief Accountant of the MEC simply declared: Sometime in October 1977 she received a call from Mrs. Perez of the Bureau of Treasury about the TCAA checks, with SN-4 series drawn by MEC in 1975 but which TCAA checks were only issued by the Bureau in 1976 and requisitioned by MEC in 1977; that she requested Mrs. Perez to write the Minister about it so she could also determine the signatories thereto, the Code number and purpose of issuance etc. That Fernandez and Estanislao having of her inqueries went to see her to inform her that the TCAA checks were in payment of supplies which were not funded by the Chief Accountant Angel Martinez; that the suppliers were readying to file but assured her that the checks were regular. That sometime in June 1978, she asked from Estanislao for copies of the checks dated October 1975 but was given only xerox copies thereof and was told that the original copies of the vouchers were burned by Bayot. But then gam suddenly in November 1977 copies of vouchers were found on the table of Mrs. Venture. (TSN, February 6, 1980). [Rollo, p. 403] Her testimony does not carry any declaration that Bayot signed the vouchers, much less that he signed the checks issued pursuant thereto. The conclusion reached by the Sandiganbayan that Reynaldo Bayot signed the vouchers and checks in question was, therefore, recklessly made and in an utterly unfair finding that is not established by the evidence on record. As can be noted, what witness Bautista only declared was that sometime in June 1978 she asked from the other accused Jose Estanislao for copies of the checks dated October, 1975, but she was told that the original copies were burned by Bayot, and that in November 1977, copies of the vouchers were found on the table of Mrs. Ventura (TSN., Feb. 6, 1980). The information given by the principal accused Estanislao, that Bayot burned the original copies of the vouchers is patently hearsay evidence. But previously noted by this Court in its resolution of the Cesar vs. Sandiganbayan case, supra, the signed vouchers were never presented in court. The duplicate

Like Cesar, the liability of Bayot is predicated on his having signed the originals of the vouchers, the existence of which and the appearance of his signatures thereon has been testified to before by Bautista, Del Prado, Samonte and Vizco. He also signed the checks issued pursuant to said vouchers. Had he not signed them the checks would not have been processed and finally encashed. The claim of Bayot that bis signatures on the checks were forged as shown by the testimony and report of his expert witness Maniwang that there exist

copies form part of the records but they do not contain any signature. The name of the petitioner is typed on the duplicate copies but no signature appears on the top of his name (134 SCRA, on pages 122-123). Regarding the alleged testimonies of the other witnesses, Estrella Samonte, Merly del Prado, and Iluminada Vizco, alluded to and relied upon by Sandiganbayan, not even in the Comment to the petition filed by the Solicitor General is there mention that anyone of these witnesses ever saw petitioner Bayot (and Cesar) sign the checks and vouchers. In fact, the gist of the testimonies of these prosecution witnesses, as condensed in the Memorandum for the Sandiganbayan in this case, indicates the contrary. As reflected in respondent Sandiganbayan's Statement of Facts and of the Case, dated July 28, 1981, the submission is made that: The names of Cesar and Bayot as the persons to sign the checks were typed and stamp-marked, respectively, on the checks, as per instruction of Fernandez. After typing the checks, the two clerks stamped the word "PAID" on an copies of the vouchers and brought them to Hilario Ginyab working directly under Vizco, who initialed them. For her part, Vizco also initialed the vouchers after tallying the checks against the vouchers from which they were copied. The vouchers and checks were then given to Fernandez who came back for them. The latter returned three or four times with other checks which were prepared in the manner as narrated above. As the time of the preparation of the checks, Cesar was already Region IV Director of MEC while Bayot (herein petitioner) was out of the government service. xxx xxx xxx (Rollo, pp. 378-379) [Emphasis supplied]

On the basis of the foregoing testimonies that the signatures on the missing documents must have been genuine signatures of the petitioner because in the past, the respondent court arrived at a conclusion that the petitioner signed the lost vouchers. We are constrained to reverse the respondent court's finding and to rule that this kind of evidence is too inconclusive and conjectural to form a basis for a prison sentence of 577 years. There is no basis for a finding of guilt beyond reasonable doubt that the petitioner really signed the vouchers. The documents are missing and the witnesses are relying on pure memory of what they saw around three years earlier. Having had a hand in the typing and preparation of instruments to a serious crime which shocked the nation, they would not testify otherwise or they would then be respondents, at the very least, in administrative proceedings. Accused Vizco was, herself found guilty and sentenced accordingly in these cases. Moreover, the two typists were acting under instructions from Superintendent Fernandez and their own chief, Iluminada Vizco. The number of checks being prepared was voluminous. The clerks could not have given more than a quick glance at the signatures on the missing vouchers. It was not their duty to verify authenticity of signatures. Their work was purely manual or mechanical in obedience to instructions. There is the added factor in this case that no less than the Secretary of Education the Honorable Juan L Manuel himself later sent formal letters addressed to the "Treasurer of the Philippines" stating that the questioned checks "signed by Dr. Lorenzo Ga. Cesar and countersigned by Mr. Reynaldo Bayot are all valid for encashment by that Office" and stating that "kind consideration on the matter would be highly appreciated." Familiarity by lay witnesses with signatures that were never presented to the court and based on pure recollection arrived at in hindsight some years after the event was the evidence used to convict the petitioner. xxx xxx xxx

While the purported signatures of Lorenzo Ga. Cesar and Reynaldo Bayot were typed on the subject checks, what is clear is that the preparation of the documents were made in September, 1977 at the instance or initiative of Amado Fernandez, Superintendent of the Teachers' Camp and one of those principally accused but who later fled. In 1977, petitioner Bayot, like Lorenzo Ga. Cesar, was no longer working with the MEC nor connected with said office for over two years before. This circumstance strongly militates against the Sandiganbayan's mistaken view that Iluminada Vizco testified as a fact that Cesar and Bayot signed said documents. Analysis of the evidence will establish that Iluminada Vizco only saw the signatures of Bayot and Cesar on the originals of the vouchers but it is also indicated that their signatures were pre-affixed on the vouchers (Exh. NN-11, Sworn Statement of Vizco. [See Cesar vs. Sandiganbayan, 134 SCRA, on page 116]). The glaring fact is that none of the witnesses relied upon by the Sandiganbayan testified that they personally saw the accused Reynaldo R. Bayot (or Lorenzo Ga. Cesar) sign the referred vouchers and checks. The testimonies of the prosecution witnesses, leave much to be desired. Del Prado and Samonte merely testified that upon instructions of Vizco and Fernandez, they prepared the questioned checks. Neither of them, however, certified that Bayot had any participation in drawing up said checks or the vouchers corresponding thereto. The conclusion arrived at by the Sandiganbayan is, therefore, manifestly faulty and erroneous. In this regard, this Court, in the Cesar vs. Sandiganbayan case, resolved the factual issue of whether the accused officials signed said vouchers and checks, and set aside the findings and conclusions of the Sandiganbayan. It is worth repeating the pronouncements made by the Court in this regard which We quote from the aforestated decision (Cesar vs. Sandiganbayan, supra, on pages 125-126): xxx xxx xxx

These unqualified witnesses give only bare opinions and their testimony seldom has but little if any technical or scientific value. Conflicts of this kind are not serious except when this merely opinion testimony, by the procedure, or the judge's charge, is given an importance which it does not deserve. It is a well established principle that the testimony of any subject that is a mere opinion should always be received with caution, and this rule certainly should cover the testimony of untrained law witnesses who, without giving reasons, testify as to the genuineness, or Identity, of disputed handwriting. ... (The Problem of Proof, Osborn pp. 465' 466' 190191) The recollection of lay witnesses Del Prado, Samonte, and Vizco on the alleged signatures of the petitioner on the missing vouchers are not only scanty but they are mere opinions which must be reviewed with extreme caution. Moreover, coming from two persons who admittedly typed the fraudulent checks and a co-accused who ordered their preparation all of whom are understandably interested in exculpating themselves from any possible liability the testimonies do not deserve the unhesitating and unqualified trust given by the respondent court. (134 SCRA 126-126). (Emphasis supplied) The incisive analysis of the prosecution's evidence and the very logical ratiocination made by Associate Justice Hugo E. Gutierrez, Jr., who penned the decision in the aforementioned case of Cesar vs. Sandiganbayan, led this Court to agree and declare that there is no basis for a finding of guilt that the petitioner really signed the vouchers (134 SCRA, on page 124). This conclusion logically must have to apply with respect to herein petitioner, Reynaldo R. Bayot. One can reread the records in vain for any fact or circumstance which should distinguish or even place the evidence adduced against Reynaldo R. Bayot, in a different light from that presented against Lorenzo Ga. Cesar,

considering that the evidence submitted against said two accused are common in nature and derived from the same set of witnesses. The semblance of support that is left to the Sandiganbayan's decision hinge solely on the uncorroborated testimony of a purported handwriting expert who was asked to testify for the prosecution as a rebuttal witness. What is, however, paradoxical in this regard is that the testimony of said handwriting expert, Mr. Segundo Tabayoyong, was not offered by the prosecution in the course of building up its case against the herein petitioner Bayot, as ordinarily would be so. No explanation can be seen why Tabayoyong's testimony was belatedly offered. Petitioner Bayot avers that from the very beginning, he had vigorously questioned and denied the authenticity of his alleged signatures on the TCAA checks which were presented to him. He is puzzled why the requests of his lawyers that the subject checks be referred to the PC-CIS laboratory for examination or signature verification, or by any other foreign forensic expert, were denied by the NBI investigators. He avers that it was only during the trial that he was able to obtain the checks for his own verification. The Court is tempted to surmise that petitioner's requests for verification by the PC-CIS were denied by the government investigators considering that such an examination could possibly reveal that Bayot's alleged signatures are forgeries and such disclosure would inevitably embarrass and create a predicament for the Secretary of Education Juan L. Manuel who had sent formal letters to the Treasurer of the Philippines certifying that the questioned checks "signed by Dr. Lorenzo Ga. Cesar and countersigned by Mr. Reynaldo Bayot are all valid for encashment by that office," and further stating that "kind consideration on the matter would be highly appreciated." Should the signature of petitioner Bayot (and Cesar) at that point of time be established as forgeries, it would necessarily follow that Secretary of Education Juan L. Manuel would have to carry also the responsibility and liability arising from the illegal disbursement. With this background, the Court is left now to assess the probative value of the respective testimonies given by two handwriting experts whose findings and conclusions are diametrically opposite to each other. In this regard, it would be relevant to consider that this Court went as far as to state as a guiding rule, in the related case of Cesar vs. Sandiganbayan that, Where the supposed expert's testimony would constitute the sole ground for conviction and there is equally convincing expert testimony to the contrary, the constitutional presumption of innocence must prevail. (134 SCRA, on page 127) In declining to accept and give credit to the testimony of Mr. Segundo Tabayoyong, this Court took note of the following: He never finished any degree in Criminology. Neither did he obtain any degree in physics or chemistry. He was a mere trainee in the NBI laboratory. He said he had gone abroad only once-to Argentina which, according to him is the only country in the world that gives tills degree (?) ... "People go there where they obtain this sort of degree (?) where they are authorized to practice examination of questioned documents." His only civil service eligibility was second grade (general clerical).<re||an1w> His present position had to be "re-classffied" "confidential" in order to qualify him to it. He never passed any other board examination. He has never authored any book on the subject on which he claimed to be an "expert." Well he did "write" a socalled pamphlet pretentiously called "Fundamentals of Questioned Documents Examination and Forgery

Detection." In that pamphlet, he mentioned some references'-(some) are Americans and one I think is a British sir, like in the case of Dr. Wilson Harrison a British' (he repeated with emphasis). Many of the "theories" contained in his pamphlet were lifted body and soul from those references, one of them being Alberto Osborn. His pamphlet has neither quotations nor footnotes, although he was too aware of the crime committed by many an author called "plagiarism." But that did not deter him, nor bother him in the least. He has never been a member of any professional organization of experts in his supposed field of expertise, because he said there is none locally. Neither is he on an international level. (1 34 SCRA, on pages 132-133) What strongly militates against the rendered opinion of prosecution witness Tabayoyong, is that he admittedly utilized as standard signatures for comparison the signatures of petitioner made in 1973 and 1974, but the questioned signatures were alleged to have been made sometime in 1977. In refusing to rely on Mr. Tabayoyong, the Court said in the Cesar Sandiganbayan case, The passage of time and a person's increase in age may have decisive influence in his writing characteristics. As stated in Testamentaria de la Finada Da. Maria Zuniga vs. Vda. de Vidal (91 Phil. 126, April 21, 1952), "the closeness or proximity of the time in which the standard used had been written to that of the suspected signature or document is very important to bring about an accurate analysis and conclusions." Hence, "... authorities are of the opinion that in order to bring about an accurate comparison and analysis, the standards of comparison must be as close as possible in point of time to the suspected signature." (ibid.) Mr. Tabayoyong explained that he used 1973 to 1975 samples because these were the only ones furnished him and he was not given the facts and circumstances of the signatures he was asked to examine. (ibid, on page 133) (Emphasis supplied) On the other hand, the series of standard signatures of Reynaldo R. Bayot, executed on different dates in 1975, 1976, 1977 and 1978-as close to the dates of the questioned TCAA checks bearing the questioned signatures were the ones that were used in the comparison made by the handwriting expert, Mr. Eduardo Maniwang, who testified for the accused petitioner, Reynaldo R. Bayot. It will not be amiss to state that petitioner Bayot's document expert, Mr. Eduardo Maniwang was at one time with the NBI Questioned Section and presently the document expert of the American Embassy. With the aid of pictorials and magnified photos, he explained his findings and conclusions that the signatures of petitioneraccused Bayot in the subject TCAA checks are not authentic. Briefly, his findings read: Comparative analysis between the questioned and the exemplars reveals the following significant differences in handwriting characteristics existing between them. 1. The questioned signatures manifest irregularities in the execution of the strokes evidencing slow drawing movement; whereas in the exemplars, the strokes of the signatures are smooth, flowing and rythmic which are the results of natural writing movements. 2. The questioned signatures lack uniformity as shown by their changes in letter designs; while in the exemplars the main features are harmoniously similar. 3. The ovals in the questioned signatures are either tall and will rounded, while in the exemplars the same are distinctly and evenly executed. 4. The questioned signatures contain pen lifts and disconnections more apparently observed at the bases; while in the exemplars the name are continuous as characterized by fluidity of the strokes.

5. The stem or staff of the letter of feature "R" (2nd) "B" in the questioned signatures are inclining to the left; whereas in the exemplars, they are comparatively upright. 6. The oval of the letter "y" (or loop) in the questioned "BAYOT" are less distinct then in the exemplars.

Considering all the foregoing, and there being totally absent any reliable evidence that can support the conviction of herein petitioner, specially when the evidence presented against him had already been described by this Court as "woefully inadequate," "conjectural and presumptive," then a verdict of acquittal, even if only on grounds of reasonable doubt, would be the only proper judgment for this Court to decree. WHEREFORE, the petition is hereby GRANTED. The judgment of the respondent Court is REVERSED and SET ASIDE with respect to the accused-petitioner herein REYNALDO R. BAYOT and the latter is, therefore ACQUITTED, for lack of proof to sustain his guilt beyond reasonable doubt. SO ORDERED. BAYOT VS. SANDIGANBAYAN [128 SCRA 383; NO.L-61776 TO NO.L-61861; 23 MAR 1984] Monday, February 09, 2009 Posted by Coffeeholic Writes Labels: Case Digests, Political Law Facts: Bayot is one of the several persons who was accused in more than 100 counts of estafa thru falsification of Public documents before the Sandiganbayan. The said charges started from his alleged involvement as a government auditor of the commission on audit assigned to the Ministry of education and culture, with some other employees from the said ministry. The bureau of treasury and the teachers camp in Baguio City for the preparation and encashment of fictitious TCAA checks for the nom-existent obligations of the teachers camp resulting in damage to the government of several millions. The 1st 32 cases were filed on july 25, 1987, while Bayot ran for municipal mayor of Amadeo Cavite and was elected on January 1980. but on May 1980 Sandiganbayan promulgated a decision convicting the accused together with his other co-accused in all but one of the thirty two cases filed against them. On Mach 16, 1982 Batas Pambansa Blg 195 was passed amending RA 3019.

7. The tops of the letter "B" whenever they appear as "M" in the questioned, exhibits their right shoulders as lower than the left; whereas in the exemplars, the same are comparatively in the same height or even higher than the left. 8. The loops and ovals of the questioned are distinctly horizontal and more pronounced, while in the exemplars, the same are comparatively circular. Moreover, the questioned signatures do not consistently exhibit uniformity in pattern formations which is unnatural for a particular writer to produce, unlike the uniformity of patterns produced in the exemplars which were done by a particular writer.' (Exh. 104) (Rollo, pp. 424-425) There are other facts more persuasive of a conclusion that petitioner Bayot did not sign the vouchers and checks in question. No one at all testified to have seen Bayot at the time of the preparation of the questioned vouchers and checks or that at anytime at all Bayot signed the questioned TCAA checks. Indeed, Bayot could not have done so because, (a) Petitioner accused Bayot had long been out of the government service, since September 1975;

(b) Even before his severance from the government service his authority as auditor of the Bureau of Public Schools had been withdrawn, effective 2 July, 1975 when Bayot was reassigned to the BIR and a memorandum to that effect had been circulated (Exh. 2; Rollo, pp. 417-418); (c) The subject check series used, as already mentioned, were released only in 1977, when Bayot had long been out of the government service since 1975. It is incomprehensible how Bayot, who was out of the service since 1975, would have been in possession of the subject checks in 1977. The decision of the Sandiganbayan itself states that it was Amado Fernandez as superintendent of the Teachers' Camp who caused the typing of the said checks by seeking the help of the accused Iluminada Vizco. The blank TCAA checks used were said to have been requisitioned by and were under the custody of Maximiano Huguete, a cashier-assistant of Iluminada Vizco, the cashier of the MEC Only Amado Fernandez and Joseph Estanislao encashed the questioned checks. On these undisputed premises, the presumption in law is that "where one is shown beyond doubt to have used the forged document, it is presumed that he is its forger." (People of the Phil. vs. Caragao, 30 SCRA 993). Such valid and legal presumption would, therefore exclude the petitioner Bayot as the author of the forgeries. On the other hand, there is the fundamental rule of law that a man is rightfully entitled to be presumed innocent. This must apply to petitioner. One last word. No where in the case records is it even suggested that petitioner herein had profited at an from the malversed funds. Except for his alleged signatures on the checks which sufficient evidence indicate to be forgeries, there is nothing in the records that herein petitioner conspired with any of those accused before, during, or after commission of the crime charged. A significant circumstance worth mentioning is that even while these much publicized cases were pending trial before the Sandiganbayan, petitioner ran as mayor of his town in the January, 1980 elections and was duly elected.

Issue: Whether or Not it would be violative of the constitutional guarantee against an ex post facto law.

Held: The court finds no merit in the petitioners contention that RA 3019 as amended by Batas Pambansa Blg 195, which includes the crime of estafa through falsification of Public Documents as among crimes subjecting the public officer charged therewith with suspension from public office pending action in court, is a penal provision which violates the constitutional prohibition against the enactment of ex post facto law. Accdg to the RPC suspension from employment and public office during trial shall not be considered as a penalty. It is not a penalty because it is not a result of a judicial proceeding. In fact, if acquitted the official who is suspended shall be entitled to reinstatement and the salaries and benefits which he failed to receive during suspension. And does not violate the constitutional provision against ex post facto law. The claim of the petitioner that he cannot be suspended because he is currently occupying a position diffren tfrom that under which he is charged is untenable. The amendatory provision clearly states that any incumbent public officer against whom any criminal prosecution under a valid information under RA 3019 for any offense involving fraud upon the government or public funds or property or whatever stage of execution and mode of participation shall be suspended from office. The use of the word office applies to any office which the officer charged may be holding and not only the particular office under which he was charged. Bayot v. Sandiganbayan 128 SCRA 383 Preventive suspension is not penalty because it is not is not imposed as a result of judicial proceedings.

FACTS: Reynaldo Bayot was accused of Estafa thru Falsification of Public Docs b4 the Sandiganbayan. The charges stemmed fr his alleged involvement, as a government auditor of the COA assigned to the Ministry of Education and Culture, in the encashment of fictitious TCAA checks for non-existent obligations of the Teachers Camp resulting in damage to the government for several million pesos. Bayot, then ran for municipal mayor of Amadeo, Cavite & was elected. Sandiganbayan promulgated conviction of Bayot. BP Blg. 195 was passed amending among others Sec 13 of RA 3019 which provided for the preventive suspension of officials against whom any criminal prosecution under this act or the RPC of for any offense involving fraud is pending incourt. Thus, Bayot was suspended. ISSUE: Whether BP 195 was an ex post facto law.

That on or about May 1969 to December 5, 1969, in the Municipality of Capas, Province of Tarlac, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused, feloniously became an officer and/or ranking leader of the Communist Party of the Philippines, an outlawed and illegal organization aimed to overthrow the Government of the Philippines by means of force, violence, deceit, subversion, or any other illegal means for the purpose of establishing in the Philippines a totalitarian regime and placing the government under the control and domination of an alien power, by being an instructor in the Mao Tse Tung University, the training school of recruits of the New People's Army, the military arm of the said Communist Party of the Philippines. That in the commission of the above offense, the following aggravating circumstances are present, to wit: (a) That the crime has been committed in contempt of or with insult to public authorities;

HELD: NO. The RPC clearly states that suspension fr the employment or public office during the trial or in order to institute proceedings shall not be considered as penalty. It is not penalty because it is not is not imposed as a result of judicial proceedings. In fact, if acquitted, the official concerned shall be entitled to reinstatement & to the salaries & benefits which he failed to receive during suspension. They are merely preventive measures. Hence, BP 195 is not an ex post facto law. PEOPLE V. FERRER (1972) G.R. Nos. L-32613-14 December 27, 1972 PEOPLE OF THE PHILIPPINES, petitioner,

(b) That the crime was committed by a band; and afford impunity. (c) With the aid of armed men or persons who insure or afford impunity. Co moved to quash on the ground that the Anti-Subversion Act is a bill of attainder. Meanwhile, on May 25, 1970, another criminal complaint was filed with the same court, sharing the respondent Nilo Tayag and five others with subversion. After preliminary investigation was had, an information was filed, which, as amended, reads: The undersigned provincial Fiscal of Tarlac and State Prosecutors duly designated by the Secretary of Justice to collaborate with the Provincial Fiscal of Tarlac, pursuant to the Order dated June 5, above entitled case, hereby accuse Nilo S. Tayag, alias Romy Reyes alias TABA, ARTHUR GARCIA, RENATO (REY) CASIPE, ABELARDO GARCIA, MANUEL ALAVADO, BENJAMIN BIE alias COMMANDER MELODY and several JOHN DOES, whose identities are still unknown, for violation of REPUBLIC ACT No. 1700, otherwise known as the Anti-Subversion Law, committed as follows: That in or about March 1969 and for sometime prior thereto and thereafter, in the Province of Tarlac, within the jurisdiction of this Honorable Court, and elsewhere in the Philippines, the above-named accused knowingly, willfully and by overt acts organized, joined and/or remained as offices and/or ranking leaders, of the KABATAANG MAKABAYAN, a subversive organization as defined in Republic Act No. 1700; that BENJAMIN BIE and COMMANDER MELODY, in addition thereto, knowingly, willfully and by over acts joined and/or remained as a member and became an officer and/or ranking leader not only of the Communist Party of the Philippines but also of the New People's Army, the military arm of the Communist Party of the Philippines; and that all the above-named accused, as such officers and/or ranking leaders of the aforestated subversive organizations, conspiring, confederating and mutually helping one another, did then and there knowingly, willfully and feloniously commit subversive and/or seditious acts, by inciting, instigating and stirring the people to unite and rise publicly and tumultuously and take up arms against the government, and/or engage in rebellious conspiracies and riots to overthrow the government of the Republic of the Philippines by force, violence, deceit, subversion and/or other illegal means among which are the following: 1. On several occasions within the province of Tarlac, the accused conducted meetings and/or seminars wherein the said accused delivered speeches instigating and inciting the people to unite, rise in arms and overthrow the Government of the Republic of the Philippines, by force, violence, deceit, subversion and/or other illegal means; and toward this end, the said accused organized, among others a chapter of the KABATAANG MAKABAYAN in barrio Motrico, La Paz, Tarlac for the avowed purpose of undertaking or promoting an

vs.

HON. SIMEON. FERRER (in his capacity as Judge of the Court of First Instance of Tarlac, Branch I), FELICIANO CO alias LEONCIO CO alias "Bob," and NILO S. TAYAG alias Romy Reyes alias "Taba," respondents. Solicitor R. Mutuc for respondent Feliciano Co. Jose W. Diokno for respondent Nilo Tayag. CASTRO, J.:p I. Statement of the Case Posed in issue in these two cases is the constitutionality of the Anti-Subversion Act, 1 which outlaws the Communist Party of the Philippines and other "subversive associations," and punishes any person who "knowingly, willfully and by overt acts affiliates himself with, becomes or remains a member" of the Party or of any other similar "subversive" organization. On March 5, 1970 a criminal complaint for violation of section 4 of the Anti-Subversion Act was filed against the respondent Feliciano Co in the Court of First Instance of Tarlac. On March 10 Judge Jose C. de Guzman conducted a preliminary investigation and, finding a prima facie case against Co, directed the Government prosecutors to file the corresponding information. The twice-amended information, docketed as Criminal Case No. 27, recites:

armed revolution, subversive and/or seditious propaganda, conspiracies, and/or riots and/or other illegal means to discredit and overthrow the Government of the Republic of the Philippines and to established in the Philippines a Communist regime. 2. The accused NILO TAYAG alias ROMY REYES alias TABA, together with FRANCISCO PORTEM alias KIKO Gonzales and others, pursued the above subversive and/or seditious activities in San Pablo City by recruiting members for the New People's Army, and/or by instigating and inciting the people to organize and unite for the purpose of overthrowing the Government of the Republic of the Philippines through armed revolution, deceit, subversion and/or other illegal means, and establishing in the Philippines a Communist Government. That the following aggravating circumstances attended the commission of the offense: (a) aid of armed men or persons to insure or afford impunity; and (b) craft, fraud, or disguise was employed.

This feature of the Act distinguishes it from section 504 of the U.S. Federal Labor-Management Reporting and Disclosure Act of 1959 11 which, in U.S. vs. Brown, 12 was held to be a bill of attainder and therefore unconstitutional. Section 504 provided in its pertinent parts as follows: (a) No person who is or has been a member of the Communist Party ... shall serve (1) as an officer, director, trustee, member of any executive board or similar governing body, business agent, manager, organizer, or other employee (other than as an employee performing exclusively clerical or custodial duties) of any labor organization.

during or for five years after the termination of his membership in the Communist Party.... On July 21, 1970 Tayag moved to quash, impugning the validity of the statute on the grounds that (1) it is a bill of attainder; (2) it is vague; (3) it embraces more than one subject not expressed in the title thereof; and (4) it denied him the equal protection of the laws. Resolving the constitutional issues raised, the trial court, in its resolution of September 15, 1970, declared the statute void on the grounds that it is a bill of attainder and that it is vague and overboard, and dismissed the informations against the two accused. The Government appealed. We resolved to treat its appeal as a special civil action for certiorari. II. Is the Act a Bill of Attainder? Article III, section 1 (11) of the Constitution states that "No bill of attainder or ex port facto law shall be enacted." 2 A bill of attainder is a legislative act which inflicts punishment without trial. 3 Its essence is the substitution of a legislative for a judicial determination of guilt. 4 The constitutional ban against bills of attainder serves to implement the principle of separation of powers 5 by confining legislatures to rule-making 6 and thereby forestalling legislative usurpation of the judicial function. 7 History in perspective, bills of attainder were employed to suppress unpopular causes and political minorities, 8 and it is against this evil that the constitutional prohibition is directed. The singling out of a definite class, the imposition of a burden on it, and a legislative intent, suffice to stigmatizea statute as a bill of attainder. 9 In the case at bar, the Anti-Subversion Act was condemned by the court a quo as a bill of attainder because it "tars and feathers" the Communist Party of the Philippines as a "continuing menace to the freedom and security of the country; its existence, a 'clear, present and grave danger to the security of the Philippines.'" By means of the Act, the trial court said, Congress usurped "the powers of the judge," and assumed "judicial magistracy by pronouncing the guilt of the CCP without any of the forms or safeguards of judicial trial." Finally, according to the trial court, "if the only issue [to be determined] is whether or not the accused is a knowing and voluntary member, the law is still a bill of attainder because it has expressly created a presumption of organizational guilt which the accused can never hope to overthrow." 1. When the Act is viewed in its actual operation, it will be seen that it does not specify the Communist Party of the Philippines or the members thereof for the purpose of punishment. What it does is simply to declare the Party to be an organized conspiracy for the overthrow of the Government for the purposes of the prohibition, stated in section 4, against membership in the outlawed organization. The term "Communist Party of the Philippines" issued solely for definitional purposes. In fact the Act applies not only to the Communist Party of the Philippines but also to "any other organization having the same purpose and their successors." Its focus is not on individuals but on conduct. 10 (b) Any person who willfully violates this section shall be fined not more than $10,000 or imprisoned for not more than one year, or both. This statute specified the Communist Party, and imposes disability and penalties on its members. Membership in the Party, without more, ipso facto disqualifies a person from becoming an officer or a member of the governing body of any labor organization. As the Supreme Court of the United States pointed out: Under the line of cases just outlined, sec. 504 of the Labor Management Reporting and Disclosure Act plainly constitutes a bill of attainder. Congress undoubtedly possesses power under the Commerce Clause to enact legislation designed to keep from positions affecting interstate commerce persons who may use of such positions to bring about political strikes. In section 504, however, Congress has exceeded the authority granted it by the Constitution. The statute does not set forth a generally applicable rule decreeing that any person who commits certain acts or possesses certain characteristics (acts and characteristics which, in Congress' view, make them likely to initiate political strikes) shall not hold union office, and leaves to courts and juries the job of deciding what persons have committed the specified acts or possessed the specified characteristics. Instead, it designates in no uncertain terms the persons who possess the feared characteristics and therefore cannot hold union office without incurring criminal liability members of the Communist Party. Communist Party v. Subversive Activities Control Board, 367 US 1, 6 L ed 2d 625, 81 S CT 1357, lend a support to our conclusion. That case involved an appeal from an order by the Control Board ordering the Communist Party to register as a "Communist-action organization," under the Subversive Activities Control Act of 1950, 64 Stat 987, 50 USC sec. 781 et seq. (1958 ed). The definition of "Communist-action organization" which the Board is to apply is set forth in sec. 3 of the Act: [A]ny organization in the United States ... which (i)is substantially directed, dominated, or controlled by the foreign government or foreign organization controlling the world Communist movement referred to in section 2 of this title, and(ii) operates primarily to advance the objectives of such world Communist movement... 64 Stat 989, 50 USC sec. 782 (1958 ed.) A majority of the Court rejected the argument that the Act was a bill of attainder, reasoning that sec. 3 does not specify the persons or groups upon which the deprivations setforth in the Act are to be imposed, but instead sets forth a general definition. Although the Board has determined in 1953 that the Communist Party was a "Communist-action organization," the Court found the statutory definition not to be so narrow as to insure that the Party would always come within it:

In this proceeding the Board had found, and the Court of Appeals has sustained its conclusion, that the Communist Party, by virtud of the activities in which it now engages, comes within the terms of the Act. If the Party should at anytime choose to abandon these activities, after it is once registered pursuant to sec. 7, the Act provides adequate means of relief. (367 US, at 87, 6 L ed 2d at 683) Indeed, were the Anti-Subversion Act a bill of attainder, it would be totally unnecessary to charge Communists in court, as the law alone, without more, would suffice to secure their punishment. But the undeniable fact is that their guilt still has to be judicially established. The Government has yet to prove at the trial that the accused joined the Party knowingly, willfully and by overt acts, and that they joined the Party, knowing its subversive character and with specific intent to further its basic objective, i.e., to overthrow the existing Government by force deceit, and other illegal means and place the country under the control and domination of a foreign power. As to the claim that under the statute organizationl guilt is nonetheless imputed despite the requirement of proof of knowing membership in the Party, suffice it to say that is precisely the nature of conspiracy, which has been referred to as a "dragneet device" whereby all who participate in the criminal covenant are liable. The contention would be correct if the statute were construed as punishing mere membership devoid of any specific intent to further the unlawful goals of the Party. 13 But the statute specifically required that membership must be knowing or active, with specific intent to further the illegal objectives of the Party. That is what section 4 means when it requires that membership, to be unlawful, must be shown to have been acquired "knowingly, willfully and by overt acts." 14 The ingredient of specific intent to pursue the unlawful goals of the Party must be shown by "overt acts." 15 This constitutes an element of "membership" distinct from the ingredient of guilty knowledge. The former requires proof of direct participation in the organization's unlawful activities, while the latter requires proof of mere adherence to the organization's illegal objectives. 2. Even assuming, however, that the Act specifies individuals and not activities, this feature is not enough to render it a bill of attainder. A statute prohibiting partners or employees of securities underwriting firms from serving as officers or employees of national banks on the basis of a legislative finding that the persons mentioned would be subject to the temptation to commit acts deemed inimical to the national economy, has been declared not to be a bill of attainder. 16 Similarly, a statute requiring every secret, oath-bound society having a membership of at least twenty to register, and punishing any person who becomes a member of such society which fails to register or remains a member thereof, was declared valid even if in its operation it was shown to apply only to the members of the Ku Klux Klan. 17 In the Philippines the validity of section 23 (b) of the Industrial Peace Act, 18 requiring labor unions to file with the Department of Labor affidavits of union officers "to the effect that they are not members of the Communist Party and that they are not members of any organization which teaches the overthrow of the Government by force or by any illegal or unconstitutional method," was upheld by this Court. 19 Indeed, it is only when a statute applies either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial trial does it become a bill of attainder. 20 It is upon this ground that statutes which disqualified those who had taken part in the rebellion against the Government of the United States during the Civil War from holding office, 21 or from exercising their profession, 22 or which prohibited the payment of further compensation to individuals named in the Act on the basis of a finding that they had engages in subversive activities, 23 or which made it a crime for a member of the Communist Party to serve as an officer or employee of a labor union, 24 have been invalidated as bills of attainder. But when the judgment expressed in legislation is so universally acknowledged to be certain as to be "judicially noticeable," the legislature may apply its own rules, and judicial hearing is not needed fairly to make such determination. 25

In New York ex rel. Bryant vs. Zimmerman, 26 the New York legislature passed a law requiring every secret, oath-bound society with a membership of at least twenty to register, and punishing any person who joined or remained a member of such a society failing to register. While the statute did not specify the Ku Klux Klan, in its operation the law applied to the KKK exclusively. In sustaining the statute against the claim that it discriminated against the Ku Klux Klan while exempting other secret, oath-bound organizations like masonic societies and the Knights of Columbus, the United States Supreme Court relied on common knowledge of the nature and activities of the Ku Klux Klan. The Court said: The courts below recognized the principle shown in the cases just cited and reached the conclusion that the classification was justified by a difference between the two classes of associations shown by experience, and that the difference consisted (a) in a manifest tendency on the part of one class to make the secrecy surrounding its purpose and membership a cloak for acts and conduct inimical to personal rights and public welfare, and (b) in the absence of such a tendency on the part of the other class. In pointing out this difference one of the courts said of the Ku Klux Klan, the principal association in the included class: "It is a matter of common knowledge that this organization functions largely at night, its members disguised by hoods and gowns and doing things calculated to strike terror into the minds of the people;" and later said of the other class: "These organizations and their purposes are well known, many of them having been in existence for many years. Many of them are oath-bound and secret. But we hear no complaint against them regarding violation of the peace or interfering with the rights of others." Another of the courts said: "It is a matter of common knowledge that the association or organization of which the relator is concededly a member exercises activities tending to the prejudice and intimidation of sundry classes of our citizens. But the legislation is not confined to this society;" and later said of the other class: "Labor unions have a recognized lawful purpose. The benevolent orders mentioned in the Benevolent Orders Law have already received legislative scrutiny and have been granted special privileges so that the legislature may well consider them beneficial rather than harmful agencies." The third court, after recognizing "the potentialities of evil in secret societies," and observing that "the danger of certain organizations has been judicially demonstrated," meaning in that state, said: "Benevolent orders, labor unions and college fraternities have existed for many years, and, while not immune from hostile criticism, have on the whole justified their existence." We assume that the legislature had before it such information as was readily available including the published report of a hearing, before a committee of the House of Representatives of the 57th Congress relating to the formation, purposes and activities of the Klu Klux Klan. If so it was advised putting aside controverted evidence that the order was a revival of the Ku Klux Klan of an earlier time with additional features borrowed from the Know Nothing and the A. P. A. orders of other periods; that its memberships was limited to native-born, gentile, protestant whites; that in part of its constitution and printed creed it proclaimed the widest freedom for all and full adherence to the Constitution of the United States; in another exacted of its member an oath to shield and preserve "white supremacy;" and in still another declared any person actively opposing its principles to be "a dangerous ingredient in the body politic of our country and an enemy to the weal of our national commonwealth;" that it was conducting a crusade against Catholics, Jews, and Negroes, and stimulating hurtful religious and race prejudices; that it was striving for political power and assuming a sort of guardianship over the administration of local, state and national affairs; and that at times it was taking into its own hands the punishment of what some of its members conceived to be crimes. 27 In the Philippines the character of the Communist Party has been the object of continuing scrutiny by this Court. In 1932 we found the Communist Party of the Philippines to be an illegal association. 28 In 1969 we again found that the objective of the Party was the "overthrow of the Philippine Government by armed struggle and to establish in the Philippines a communist form of government similar to that of Soviet Russia and Red China." 29 More recently, in Lansang vs. Garcia, 30 we noted the growth of the Communist Party of the Philippines and the organization of Communist fronts among youth organizations such as the Kabataang Makabayan (KM) and the emergence of the New People's Army. After meticulously reviewing the evidence, we said: "We entertain, therefore, no doubts about the existence of a sizeable group of men who have publicly risen in arms to

overthrow the government and have thus been and still are engaged in rebellion against the Government of the Philippines. 3. Nor is it enough that the statute specify persons or groups in order that it may fall within the ambit of the prohibition against bills of attainder. It is also necessary that it must apply retroactively and reach past conduct. This requirement follows from the nature of a bill of attainder as a legislative adjudication of guilt. As Justice Frankfurter observed, "frequently a bill of attainder was ... doubly objectionable because of its ex post facto features. This is the historic explanation for uniting the two mischiefs in one clause 'No Bill of Attainder or ex post facto law shall be passed.' ... Therefore, if [a statute] is a bill of attainder it is also an ex post facto law. But if it is not an ex post facto law, the reasons that establish that it is not are persuasive that it cannot be a bill of attainder." 31 Thus in Gardner vs. Board of Public Works, 32 the U.S. Supreme Court upheld the validity of the Charter of the City of Los Angeles which provided: ... [N]o person shall hold or retain or be eligible for any public office or employment in the service of the City of Los Angeles, in any office or department thereof, either elective or appointive, who has within five (5) years prior to the effective date of this section advised, advocated, or taught, or who may, after this section becomes effective, become a member of or affiliated with any group, society, association, organization or party which advises, advocates or teaches or has within said period of five (5) years advised, advocated, or taught the overthrow by force or violence of the Government of the United States of America or of the State of California. In upholding the statute, the Court stressed the prospective application of the Act to the petitioner therein, thus: ... Immaterial here is any opinion we might have as to the charter provision insofar as it purported to apply restrospectively for a five-year period to its effective date. We assume that under the Federal Constitution the Charter Amendment is valid to the extent that it bars from the city's public service persons who, subsequently to its adoption in 1941, advise, advocate, or reach the violent overthrow of the Government or who are or become affiliated with any group doing so. The provisions operating thus prospectively were a reasonable regulation to protect the municipal service by establishing an employment qualification of loyalty to the State and the United States. ... Unlike the provisions of the charter and ordinance under which petitioners were removed, the statute in the Lovett case did not declare general and prospectively operative standards of qualification and eligibility for public employment. Rather, by its terms it prohibited any further payment of compensationto named individuals or employees. Under these circumstances, viewed against the legislative background, the statutewas held to have imposed penalties without judicial trial. Indeed, if one objection to the bill of attainder is thatCongress thereby assumed judicial magistracy, them it mustbe demonstrated that the statute claimed to be a bill of attainderreaches past conduct and that the penalties it imposesare inescapable. As the U.S. Supreme Court observedwith respect to the U.S. Federal Subversive Activities ControlAct of 1950: Nor is the statute made an act of "outlawry" or of attainderby the fact that the conduct which it regulates is describedwith such particularity that, in probability, few organizationswill come within the statutory terms. Legislatures may act tocurb behaviour which they regard as harmful to the public welfare,whether that conduct is found to be engaged in by manypersons or by one. So long as the incidence of legislation issuch that the persons who engage in the regulated conduct, bethey many or few, can escape regulation merely by altering thecourse of their own present activities, there can be no complaintof an attainder. 33

This statement, mutatis mutandis, may be said of theAnti-Subversion Act. Section 4 thereof expressly statesthat the prohibition therein applies only to acts committed"After the approval of this Act." Only those who "knowingly,willfully and by overt acts affiliate themselves with,become or remain members of the Communist Party of thePhilippines and/or its successors or of any subversive association"after June 20, 1957, are punished. Those whowere members of the Party or of any other subversive associationat the time of the enactment of the law, weregiven the opportunity of purging themselves of liability byrenouncing in writing and under oath their membershipin the Party. The law expressly provides that such renunciationshall operate to exempt such persons from penalliability. 34 The penalties prescribed by the Act are thereforenot inescapable. III. The Act and the Requirements of Due Process 1. As already stated, the legislative declaration in section 2 of the Act that the Communist Party of the Philippinesis an organized conspiracy for the overthrow of theGovernment is inteded not to provide the basis for a legislativefinding of guilt of the members of the Party butrather to justify the proscription spelled out in section 4. Freedom of expression and freedom of association are sofundamental that they are thought by some to occupy a"preferred position" in the hierarchy of constitutional values. 35 Accordingly, any limitation on their exercise mustbe justified by the existence of a substantive evil. This isthe reason why before enacting the statute in question Congressconducted careful investigations and then stated itsfindings in the preamble, thus: ... [T]he Communist Party of the Philippines althoughpurportedly a political party, is in fact an organized conspiracyto overthrow the Government of the Republic of the Philippinesnot only by force and violence but also by deceit, subversionand other illegal means, for the purpose of establishing in thePhilippines a totalitarian regime subject to alien dominationand control; ... [T]he continued existence and activities of the CommunistParty of the Philippines constitutes a clear, present andgrave danger to the security of the Philippines; ... [I]n the face of the organized, systematice and persistentsubversion, national in scope but international in direction,posed by the Communist Party of the Philippines and its activities,there is urgent need for special legislation to cope withthis continuing menace to the freedom and security of the country. In truth, the constitutionality of the Act would be opento question if, instead of making these findings in enactingthe statute, Congress omitted to do so. In saying that by means of the Act Congress has assumed judicial magistracy, the trial courd failed to takeproper account of the distinction between legislative fact and adjudicative fact. Professor Paul Freund elucidatesthe crucial distinction, thus: ... A law forbidding the sale of beverages containingmore than 3.2 per cent of alcohol would raise a question of legislativefact, i.e., whether this standard has a reasonable relationto public health, morals, and the enforcement problem. Alaw forbidding the sale of intoxicating beverages (assuming itis not so vague as to require supplementation by rule-making)would raise a question of adjudicative fact, i.e., whether thisor that beverage is intoxicating within the meaning of the statuteand the limits on governmental action imposed by the Constitution. Of course what we mean by fact in each case is itselfan ultimate conclusion founded on underlying facts and oncriteria of judgment for weighing them. A conventional formulation is that legislative facts those facts which are relevant to the legislative judgment will not be canvassed save to determine whether there is a rationalbasis for believing that they exist, while adjudicativefacts those which tie the legislative enactment to the litigant are to be demonstrated and found according to the ordinarystandards prevailing for judicial trials. 36

The test formulated in Nebbia vs. new York, 37 andadopted by this Court in Lansang vs. Garcia, 38 is that 'if laws are seen to have a reasonable relation to a proper legislative purpose, and are neither arbitrary nor discriminatory, the requirements of due process are satisfied, and judicial determination to that effect renders a court functus officio." The recital of legislative findings implements this test. With respect to a similar statement of legislative findingsin the U.S. Federal Subversive Activities Control Actof 1950 (that "Communist-action organizations" are controlledby the foreign government controlling the worldCommunist movement and that they operate primarily to"advance the objectives of such world Communist movement"),the U.S. Supreme Court said: It is not for the courts to reexamine the validity of theselegislative findings and reject them....They are the productof extensive investigation by Committes of Congress over morethan a decade and a half. Cf. Nebbia v. New York, 291 U.S.502, 516, 530. We certainly cannot dismiss them as unfoundedirrational imaginings. ... And if we accept them, as we mustas a not unentertainable appraisal by Congress of the threatwhich Communist organizations pose not only to existing governmentin the United States, but to the United States as asovereign, independent Nation. ...we must recognize that thepower of Congress to regulate Communist organizations of thisnature is extensive. 39 This statement, mutatis mutandis, may be said of thelegislative findings articulated in the Anti-Subversion Act. That the Government has a right to protect itself againstsubversion is a proposition too plain to require elaboration.Self-preservation is the "ultimate value" of society. It surpasses and transcendes every other value, "forif a society cannot protect its very structure from armedinternal attack, ...no subordinate value can be protected" 40 As Chief Justice Vinson so aptly said in Dennis vs. United States: 41 Whatever theoretical merit there may be to the argumentthat there is a 'right' to rebellion against dictatorial governmentsis without force where the existing structure of government provides for peaceful and orderly change. We rejectany principle of governmental helplessness in the face of preparationfor revolution, which principle, carried to its logical conclusion,must lead to anarchy. No one could conceive that it isnot within the power of Congress to prohibit acts intended tooverthrow the government by force and violence. 2. By carefully delimiting the reach of the Act to conduct (as explicitly described in sectin 4 thereof), Congressreaffirmed its respect for the rule that "even throughthe governmental purpose be legitimate and substantial,that purpose cannot be pursued by means that broadly stiflefundamental personal liberties when the end can be more narrowly achieved." 42 The requirement of knowing membership,as distinguished from nominal membership, hasbeen held as a sufficient basis for penalizing membershipin a subversive organization. 43 For, as has been stated: Membership in an organization renders aid and encouragement to the organization; and when membership is acceptedor retained with knowledge that the organization is engaged inan unlawful purpose, the one accepting or retaining membershipwith such knowledge makes himself a party to the unlawfulenterprise in which it is engaged. 44 3. The argument that the Act is unconstitutionallyoverbroad because section 2 merely speaks of "overthrow"of the Government and overthrow may be achieved by peaceful means, misconceives the function of the phrase"knowingly, willfully and by overt acts" in section 4. Section 2 is merely a legislative declaration; the definitionsof and the penalties prescribed for the different acts prescribedare stated in section 4 which requires that membershipin the Communist Party of the Philippines, to be unlawful, must be acquired "knowingly,

willfully and by overt acts." Indeed, the first "whereas" clause makes clear thatthe overthrow contemplated is "overthrow not only by forceand violence but also be deceit, subversion and other illegalmeans." The absence of this qualificatio in section 2 appearsto be due more to an oversight rather than to deliberateomission. Moreover, the word "overthrow' sufficiently connotesthe use of violent and other illegal means. Only in a metaphoricalsense may one speak of peaceful overthrow ofgovernments, and certainly the law does not speak in metaphors.In the case of the Anti-Subversion Act, the use ofthe word "overthrow" in a metaphorical sense is hardlyconsistent with the clearly delineated objective of the "overthrow,"namely, "establishing in the Philippines a totalitarianregime and place [sic] the Government under thecontrol and domination of an alien power." What thisCourt once said in a prosecution for sedition is appropos: "The language used by the appellant clearly imported anoverthrow of the Government by violence, and it should beinterpreted in the plain and obvious sense in which it wasevidently intended to be understood. The word 'overthrow'could not have been intended as referring to an ordinarychange by the exercise of the elective franchise. The useof the whip [which the accused exhorted his audience to useagainst the Constabulary], an instrument designed toleave marks on the sides of adversaries, is inconsistentwith the mild interpretation which the appellant wouldhave us impute to the language." 45 IV. The Act and the Guaranty of Free Expression As already pointed out, the Act is aimed against conspiracies to overthrow the Government by force, violence orother illegal means. Whatever interest in freedom of speechand freedom of association is infringed by the prohibitionagainst knowing membership in the Communist Party ofthe Philippines, is so indirect and so insubstantial as to beclearly and heavily outweighed by the overriding considerationsof national security and the preservartion of democraticinstitutions in his country. The membership clause of the U.S. Federal Smith Actis similar in many respects to the membership provision ofthe Anti-Subversion Act. The former provides: Whoever organizes or helps or attempts to organize anysociety, group, or assembly of persons who teach, advocate, orencourage the overthrow or destruction of any such governmentby force or violence; or becomes or is a member of, or affiliatedwith, any such society, group or assembly of persons, knowingthe purpose thereof Shall be fined not more than $20,000 or imprisoned notmore than twenty years, or both, and shall be ineligible for emplymentby the United States or any department or agencythereof, for the five years next following his conviction.... 46 In sustaining the validity of this provision, the "Court said in Scales vs. United States: 47 It was settled in Dennis that advocacy with which we arehere concerned is not constitutionally protected speech, and itwas further established that a combination to promote suchadvocacy, albeit under the aegis of what purports to be a politicalparty, is not such association as is protected by the firstAmendment. We can discern no reason why membership, whenit constitutes a purposeful form of complicity in a group engagingin this same forbidden advocacy, should receive anygreater degree of protection from the guarantees of that Amendment. Moreover, as was held in another case, where the problemsof accommodating the exigencies of selfpreservationand the values of liberty are as complex and intricate as inthe situation described in the legislative findings stated inthe U.S. Federal Subversive Activities Control Act of 1950,the legislative judgment as to how that threat may best bemet consistently with the safeguards of personal freedomsis not to be set aside merely because the judgment of judgeswould, in the first instance, have chosen other methods. 48 For in truth,

legislation, "whether it restrains freedom tohire or freedom to speak, is itself an effort at compromisebetween the claims of the social order and individual freedom,and when the legislative compromise in either case isbrought to the judicial test the court stands one step removedfrom the conflict and its resolution through law." 49 V. The Act and its Title The respondent Tayag invokes the constitutional commandthat "no bill which may be enacted into law shall embrace more than one subject which shall be expressed in the title of the bill." 50 What is assailed as not germane to or embraced in thetitle of the Act is the last proviso of section 4 which reads: And provided, finally, That one who conspires with anyother person to overthrow the Government of the Republic ofthe Philippines, or the government of any of its political subdivisionsby force, violence, deceit, subversion or illegal means,for the purpose of placing such Government or political subdivisionunder the control and domination of any lien power, shallbe punished by prision correccional to prision mayor with allthe accessory penalties provided therefor in the same code. It is argued that the said proviso, in reality, punishes notonly membership in the Communist Party of the Philippinesor similar associations, but as well "any conspiracyby two persons to overthrow the national or any local governmentby illegal means, even if their intent is not to establisha totalitarian regime, burt a democratic regime, evenif their purpose is not to place the nation under an aliencommunist power, but under an alien democratic power likethe United States or England or Malaysia or even an anti-communistpower like Spain, Japan, Thailand or Taiwanor Indonesia." The Act, in addition to its main title ("An Act to Outlawthe Communist Party of the Philippines and SimilarAssociations, Penalizing Membership Therein, and forOther Purposes"), has a short title. Section 1 providesthat "This Act shall be known as the

(1) In the case of subversive organizations other thanthe Communist Party of the Philippines, (a) that thepurpose of the organization is to overthrow the presentGovernment of the Philippines and to establish in thiscountry a totalitarian regime under the domination of aforeign power; (b) that the accused joined such organization;and (c) that he did so knowingly, willfully and byovert acts; and (2) In the case of the Communist Party of the Philippines,(a) that the CPP continues to pursue the objectiveswhich led Congress in 1957 to declare it to be an organizedconspiracy for the overthrow of the Government by illegalmeans for the purpose of placing the country under thecontrol of a foreign power; (b) that the accused joined theCPP; and (c) that he did so willfully, knowingly and byovert acts. We refrain from making any pronouncement as to thecrime or remaining a member of the Communist Party ofthe Philippines or of any other subversive association: weleave this matter to future determination. ACCORDINGLY, the questioned resolution of September15, 1970 is set aside, and these two cases are herebyremanded to the court a quo for trial on the merits. Costs de oficio. 370 People vs. Ferrer [GRs L-32613-14, 27 December 1972] First Division, Castro (J): 5 concur, 12 took no part, 1 dissented in a separate opinion Facts: On 5 March 1970 a criminal complaint for violation of section 4 of the Anti-Subversion Act was filed against Feliciano Co in the Court of First Instance (CFI) of Tarlac. On March 10, Judge Jose C. de Guzman conducted a preliminary investigation and, finding a prima facie case against Co, directed the Government prosecutors to file the corresponding information. The twice-amended information (Criminal Case 27), recites "That on or about May 1969 to December 5, 1969, in the Municipality of Capas, Province of Tarlac,Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused, feloniously became an officer and/or ranking leader of the Communist Party of the Philippines, an outlawed and illegal organization aimed to overthrow the Government of the Philippines by means of force, violence, deceit, subversion, or any other illegal means for the purpose of establishing in the Philippines a totalitarian regime and placing the government under the control and domination of an alien power, by being an instructor in the Mao Tse Tung University, the training school of recruits of the New People's Army, the military arm of the said Communist Party of the Philippines. That in the commission of the above offense, the following aggravating circumstances are present, to wit: (a) That the crime has been committed in contempt of or with insult to public authorities; (b) That the crime was committed by a band; and (c) With the aid of armed men or persons who insure or afford impunity." Co moved to quash on the ground that the Anti-Subversion Act is a bill of attainder. Meanwhile, on 25 May 1970, another criminal complaint was filed with the same court, charging Nilo Tayag and five others with subversion. After preliminary investigation was had, an information was filed. On 21 July 1970 Tayag moved to quash, impugning the validity of the statute on the grounds that (1) Republic Act 1700 is a bill of attainder; (2) it is vague; (3) it embraces more than one subject not expressed in the title thereof; and (4) it denies him the equal protection of the laws. Resolving the constitutional issues raised, the trial court, in its resolution of 15 September 1970, declared the statute void on the grounds that it is a bill of attainder and that it is vague and overbroad, and dismissed the informations against the two accused. The Government appealed. The Supreme Court resolved to treat its appeal as a special civil action for certiorari. Issue: Whether the Anti-Subversion Law partakes of the nature of a Bill of Attainder. Held: Article III, section 1 (11) of the Constitution states that "No bill of attainder or ex post facto law shall be enacted." A bill of attainder is a legislative act which inflicts punishment without trial. Its essence is the substitution of a legislative for a judicial determination of guilt. The constitutional ban against bills of attainder serves to implement the principle of separation of powers by confining legislatures to rule-making and thereby forestalling legislative usurpation of the judicial function. History in perspective, bills of attainder were employed to suppress unpopular causes and political minorities, and it is against this evil that the constitutional prohibition is directed. The singling out of a definite class, the imposition of a burden on it, and a legislative intent, suffice to stigmatize a statute as a bill of attainder. Herein, when the Anti-Subversion Act is viewed in

Anti-Subversion Act."Together with the main title, the short title of the statuteunequivocally indicates that the subject matter is subversionin general which has for its fundamental purpose the substitutionof a foreign totalitarian regime in place of theexisting Government and not merely subversion by Communistconspiracies.. The title of a bill need not be a catalogue or an indexof its contents, and need not recite the details of the Act. 51 It is a valid title if it indicates in broad but clear termsthe nature, scope, and consequences of the proposed lawand its operation. 52 A narrow or technical construction isto be avoided, and the statute will be read fairly and reasonablyin order not to thwart the legislative intent. We holdthat the Anti-Subversion Act fully satisfies these requirements. VI. Conclusion and Guidelines In conclusion, even as we uphold the validity of theAnti-Subversion Act, we cannot overemphasize the needfor prudence and circumspection in its enforcement, operatingas it does in the sensitive area of freedom of expressionand belief. Accordingly, we set the following basic guidelines to be observed in any prosecution under the Act.The Government, in addition to proving such circumstancesas may affect liability, must establish the following elementsof the crime of joining the Communist Party of the Philippinesor any other subversive association:

its actual operation, it will be seen that it does not specify the Communist Party of the Philippine or the members thereof for the purpose of punishment. What it does is simply to declare the Party to be an organized conspiracy for the overthrow of the Government for the purposes of the prohibition, stated in section 4, against membership in the outlawed organization. The term "Communist Party of the Philippines" is used solely for definitional purposes. In fact the Act applies not only to the Communist Party of the Philippines but also to "any other organization having the same purpose and their successors." Its focus is not on individuals but on conduct. Were the Anti-Subversion Act a bill of attainder, it would be totally unnecessary to charge Communists in court, as the law alone, without more, would suffice to secure their punishment. But the undeniable fact is that their guilt still has to be judicially established. The Government has yet to prove at the trial that the accused joined the Party knowingly, willfully and by overt acts, and that they joined the Party, knowing its subversive character and with specific intent to further its basic objective, i.e., to overthrow the existing Government by force, deceit, and other illegal means and place the country under the control and domination of a foreign power. Further, the statute specifically requires that membership must be knowing or active, with specific intent to further the illegal objectives of the Party. Thatis what section 4 means when it requires that membership, to be unlawful, must be shown to have been acquired "knowingly, willfully and by overt acts." The ingredient of specific intent to pursue the unlawful goals of the Party must be shown by "overt acts." This constitutes an element of "membership" distinct from the ingredient of guilty knowledge. The former requires proof of direct participation in the organization's unlawful activities, while the latter requires proof of mere adherence to the organization's illegal objectives. Even assuming, however, that the Act specifies individuals and not activities, this feature is not enough to render it a bill of attainder. It is only when a statute applies either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial trial does it become a bill of attainder. Nor is it enough that the statute specify persons or groups in order that it may fall within the ambit of the prohibition against bills of attainder. It is also necessary that it must apply retroactively and reach past conduct. This requirement follows from the nature of a bill of attainder as a legislative adjudication of guilt. Indeed, if one objection to the bill of attainder is that Congress thereby assumes judicial magistracy, then it must be demonstrated that the statute claimed to be a bill of attainder reaches past conduct and that the penalties it imposes are inescapable. Section 4 of Anti-Subversion Act expressly states that the prohibition therein applies only to acts committed "After the approval of this Act." Only those who "knowingly, willfully and by overt acts affiliate themselves with, become or remain members of the Communist Party of the Philippines and/or its successors or of any subversive association" after 20 June 1957, are punished. Those who were members of the Party or of any other subversive association at the time of the enactment of the law, were given the opportunity of purging themselves of liability by renouncing in writing and under oath their membership in the Party. The law expressly provides that such renunciation shall operate to exempt such persons from penal liability. The penalties prescribed by the Act are therefore not inescapable. PEOPLE VS. FERRER [48 SCRA 382; NOS.L-32613-14; 27 DEC 1972] Monday, February 09, 2009 Posted by Coffeeholic Writes Labels: Case Digests, Political Law Facts: Hon. Judge Simeon Ferrer is the Tarlac trial court judge that declared RA1700 or the Anti-Subversive Act of 1957 as a bill of attainder. Thus, dismissing the information of subversion against the following: 1.) Feliciano Co for being an officer/leader of the Communist Party of the Philippines (CPP) aggravated by circumstances of contempt and insult to public officers, subversion by a band and aid of armed men to afford impunity. 2.) Nilo Tayag and 5 others, for being members/leaders of the NPA, inciting, instigating people to unite and overthrow the Philippine Government. Attended by Aggravating Circumstances of Aid or Armed Men, Craft, and Fraud. The trial court is of opinion that 1.) The Congress usurped the powers of the judge 2.) Assumed judicial magistracy by pronouncing the guilt of the CPP without any forms of safeguard of a judicial trial. 3.) It created a presumption of organizational guilt by being members of the CPP regardless of voluntariness.

The Anti Subversive Act of 1957 was approved 20June1957. It is an act to outlaw the CPP and similar associations penalizing membership therein, and for other purposes. It defined the Communist Party being although a political party is in fact an organized conspiracy to overthrow the Government, not only by force and violence but also by deceit, subversion and other illegal means. It declares that the CPP is a clear and present danger to the security of the Philippines. Section 4 provided that affiliation with full knowledge of the illegal acts of the CPP is punishable. Section 5 states that due investigation by a designated prosecutor by the Secretary of Justice be made prior to filing of information in court. Section 6 provides for penalty for furnishing false evidence. Section 7 provides for 2 witnesses in open court for acts penalized by prision mayor to death. Section 8 allows the renunciation of membership to the CCP through writing under oath. Section 9 declares the constitutionality of the statute and its valid exercise under freedom if thought, assembly and association.

Issues: (1) Whether or not RA1700 is a bill of attainder/ ex post facto law. (2) Whether or Not RA1700 violates freedom of expression.

Held: The court holds the VALIDITY Of the Anti-Subversion Act of 1957. A bill of attainder is solely a legislative act. It punishes without the benefit of the trial. It is the substitution of judicial determination to a legislative determination of guilt. In order for a statute be measured as a bill of attainder, the following requisites must be present: 1.) The statute specifies persons, groups. 2.) the statute is applied retroactively and reach past conduct. (A bill of attainder relatively is also an ex post facto law.) In the case at bar, the statute simply declares the CPP as an organized conspiracy for the overthrow of the Government for purposes of example of SECTION 4 of the Act. The Act applies not only to the CPP but also to other organizations having the same purpose and their successors. The Acts focus is on the conduct not person. Membership to this organizations, to be UNLAWFUL, it must be shown that membership was acquired with the intent to further the goals of the organization by overt acts. This is the element of MEMBERSHIP with KNOWLEDGE that is punishable. This is the required proof of a members direct participation. Why is membership punished. Membership renders aid and encouragement to the organization. Membership makes himself party to its unlawful acts. Furthermore, the statute is PROSPECTIVE in nature. Section 4 prohibits acts committed after approval of the act. The members of the subversive organizations before the passing of this Act is given an opportunity to escape liability by renouncing membership in accordance with Section 8. The statute applies the principle of mutatis mutandis or that the necessary changes having been made. The declaration of that the CPP is an organized conspiracy to overthrow the Philippine Government should not be the basis of guilt. This declaration is only a basis of Section 4 of the Act. The EXISTENCE OF SUBSTANTIVE EVIL justifies the limitation to the exercise of Freedom of Expression and Association in this matter. Before the enactment of the statute and statements in the preamble, careful investigations by the Congress were done. The court further stresses that whatever interest in freedom of speech and association is excluded in the prohibition of membership in the CPP are weak considering NATIONAL SECURITY and PRESERVATION of DEMOCRACY.

The court set basic guidelines to be observed in the prosecution under RA1700. In addition to proving circumstances/ evidences of subversion, the following elements must also be established: 1. Subversive Organizations besides the CPP, it must be proven that the organization purpose is to overthrow the present Government of the Philippines and establish a domination of a FOREIGN POWER. Membership is willfully and knowingly done by overt acts. 2. In case of CPP, the continued pursuance of its subversive purpose. Membership is willfully and knowingly done by overt acts. The court did not make any judgment on the crimes of the accused under the Act. The Supreme Court set aside the resolution of the TRIAL COURT. [G.R. No. 156394. January 21, 2005] PEOPLE OF THE PHILIPPINES, petitioner, vs. THE HONORABLE SANDIGANBAYAN, FOURTH DIVISION and SERGIO F. EMPRESE, SR., respondents. DECISION CHICO-NAZARIO, J.: Before the Court is a petition for certiorari under Rule 65 of the Rules of Court filed by the People of the Philippines through the Office of the Ombudsman, assailing the 02 August 2002 Resolution of the Fourth Division of the Sandiganbayan (public respondent) which granted the Motion to Quash the Information filed by Sergio F. Emprese, Sr. (private respondent) in Criminal Case No. 27136, entitled People of the Philippines versus Sergio Emprese, Sr., and the 11 September 2002 Resolution denying petitioners Motion for Reconsideration.[1] It would be useful to trace the origin of the case. On 22 June 1998, private complainants in the above case, i.e., Ariel A. Castro, Ramon B. Lustanas, Julia F. Avelino, Butche P. Reyes, Jurly L. Reta, Jr., Rene L. Dadace, Ramon Isidro U. Reyes, Jr., Judith B. Montero and Anastacia V. Edar, were appointed by the then Mayor of the Municipality of San Andres, Quezon, Francisco de Leon, Jr., as Agricultural Technologist, Utility Worker II, Utility Worker II, Construction and Maintenance Man, Construction and Maintenance Man, Utility Worker II, Utility Worker II, Clerk II and Utility Worker II, respectively, for the Municipality of San Andres, Quezon. On 01 July 1998, when private respondent assumed office, he revoked the appointments of private complainants. Aggrieved, private complainants filed with the Civil Service Commission, Regional Office No. IV, Quezon City (CSCRO-IV) a complaint for illegal termination and nonpayment of salaries. On 05 March 1999, the CSCRO-IV issued an order in favor of private complainants directing private respondent to reinstate the former with payment of back wages and other monetary benefits from the time they were illegally terminated from service until their actual reinstatement.[2] On 04 May 1999, private respondent filed a notice of appeal with the Civil Service Commission, Central Office (CSC Central).

On 29 February 2000, the CSC Central issued a resolution reversing the order of CSCRO-IV and declaring the termination of the services of private complainants valid.[3] Private complainants filed a Motion for Reconsideration of the resolution, but the same was denied. Private complainants elevated the case to the Court of Appeals. In a decision dated 31 July 2001, the Court of Appeals ruled in their favor.[4] It reversed the order of CSC Central and reinstated the order of the CSCRO-IV. The Court of Appeals found that the CSC Centrals resolution was issued without jurisdiction as the CSCRO IVs order dated 05 March 1999 had already become final and executory for failure of private resp ondent to appeal seasonably and was therefore beyond the power of review by the CSC Central. On 18 October 2001, private complainants filed complaints with the Office of the Ombudsman against private respondent Sergio F. Emprese, Sr., for violation of Republic Act No. 3019, Section 3(e) and an administrative case for Grave Misconduct.[5] On 22 October 2001, private respondent filed before this Court a petition for certiorari under Rule 65[6] seeking to nullify the 31 July 2001 decision of the Court of Appeals for allegedly being rendered in grave abuse of discretion amounting to lack of jurisdiction. This Court denied the petition for being filed beyond the prescriptive period and for failure to pay the prescribed legal fees and deposit for costs.[7] Private complainants filed with the CSC Central an Urgent Motion for Execution dated 22 October 2001 of the 31 July 2001 decision of the Court of Appeals.[8] On 28 January 2002, the Office of the Ombudsman filed an Information with the Sandiganbayan charging private respondent for violation of Section 3(e) of Rep. Act No. 3019. It was docketed as Criminal Case No. 27136 and was raffled to the Fourth Division.[9] The Information reads: That on or about September 11, 2001, or immediately prior or subsequent thereto, in San Andres, Province of Quezon, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, Sergio F. Emprese, Sr., a public officer, being then the Municipal Mayor of San Andres, Quezon, committing the crime herein charged in relation to and taking advantage of his official functions, and through manifest partiality, evident bad faith or gross inexcusable negligence, did then and there willfully, unlawfully and criminally fail to reinstate the complainants to their position and to pay back wages due them despite the finality of the Order of the Court of Appeals, thereby causing undue injury to the complainants. On 20 February 2002, the CSC Central granted private complainants Urgent Motion for Execution dated 22 October 2001 seeking the implementation of the decision of the Court of Appeals dated 31 July 2001.[10] Private respondent filed a motion for reconsideration which was denied by the CSC Central in an order dated 23 April 2002.[11] On 09 May 2002, private respondent filed a Motion to Quash with the Sandiganbayan on the grounds that the acts for which the accused is charged do not constitute a violation of Section 3(e) of Rep. Act No. 3019 and that the Information does not conform substantially to the prescribed form pursuant to Section 3(d) of Rule 117 of the Rules of Court.[12] On 13 June 2002, private respondent manifested before the Office of the Ombudsman that private complainants had been reinstated to their former positions and that they have been receiving partial payments for their back wages as evidenced by the Allotment and Obligation Slip dated 23 May 2002 and the Payroll for the month of May, 2002.[13]

On 19 June 2002, private respondent further filed with the Office of the Ombudsman a Supplemental Manifestation attaching therewith the Joint Affidavit of Desistance of private complainants dated 11 June 2002.[14] On the same date, the Office of the Ombudsman dismissed the administrative case against private respondent for lack of interest to prosecute.[15] On 25 June 2002, private respondent filed with the Sandiganbayan a Manifestation informing the said court of the Affidavit of Desistance executed by private complainants.[16] On 02 August 2002, public respondent issued the assailed Resolution granting the Motion to Quash filed by private respondent.[17] Public respondent ruled:[18] It strains reason how could accused (sic) be charged criminally in this Court for failure to enforce a decision, the execution of which the private complainants asked in the Civil Service Commission. What is apparent is the good faith shown by the obedience of the accused in reinstating the private complainants after receiving the Civil Service Commissions Order denying his Motion for Reconsideration. This, the accused did, when his Motion for Clarification has yet to be resolved in the Court of Appeals. ... IN VIEW HEREOF, the instant Information is hereby DISMISSED. The cash bail bond posted by the accused for his provisional liberty is cancelled and the Hold Departure Order issued by this Court is hereby lifted and set aside. Petitioner sought a reconsideration thereof which was denied by public respondent in a resolution dated 11 September 2002.[19] On 13 November 2002, petitioner received a copy of the above resolution.[20] On 10 January 2003, petitioner filed before this Court the instant petition imputing grave abuse of discretion and lack or excess of jurisdiction to respondent court in granting the motion to quash the Information and in denying the motion for reconsideration.[21] Petitioner filed the instant petition seeking to annul the Resolutions of the Sandiganbayan raising the sole issue: Whether or not the Sandiganbayan acted without jurisdiction or in excess of jurisdiction or with grave abuse of discretion in quashing the Information. In support of its claim, petitioner asserts that the Sandiganbayan committed grave abuse of discretion when it quashed the Information on the basis of an Affidavit of Desistance signed only by one of the eight (8) complaining witnesses. Such being the case, the said affidavit cannot be used as a basis for dismissing the case insofar as the other remaining witnesses were concerned. The petitioner likewise alleged that the resolution which quashed the Information merely concluded, without any evidence on record to support such conclusion, and without giving it the opportunity to present contrary evidence, that private respondent had acted in good faith. Private respondent, on the other hand, contends that the instant petition should be dismissed on the ground that the present recourse is an improper remedy to assail the resolutions of the Sandiganbayan. The resolution, being a final order, should have been appealed via petition for review on certiorari under Rule 45 of the Rules of Court. Unfortunately, petitioner cannot make use of the said remedy after it failed to file an appeal within the

reglementary period. Private respondent further contends that the Information was quashed not primarily on the basis of the Affidavit of Desistance but on the ground that the acts for which the accused is charged do not constitute a violation of Section 3(e) of Rep. Act No. 3019. Finally, the charges in the Information were rendered moot and academic because private complainants were duly reinstated by private respondent pursuant to the writ of execution issued by the Civil Service Commission (CSC). Courts Ruling The petition must fail. It must be stated that the filing of the instant petition for certiorari under Rule 65 of the Rules of Court is inappropriate. Considering that the Resolution of the Sandiganbayan which quashed the Information was a final order that finally disposed of the case, the proper remedy therefrom is a petition for review under Rule 45 of the Rules of Court.[22] Section 1 of said rule provides: Filing of petition with Supreme Court. A party desiring to appeal by certiorari from a judgment or final order or resolution of the Court of Appeals, the Sandiganbayan, the Regional Trial Court or other courts whenever authorized by law, may file with the Supreme Court a verified petition for review on certiorari. The petition shall raise only questions of law which must be distinctly set forth. Section 2 of the same rule provides for the period within which to file the appeal: Time for filing; extension. The petition shall be filed within fifteen (15) days from notice of the judgment or final order or resolution appealed from, or of the den ial of the petitioners motion for new trial or reconsideration filed in due time after notice of the judgment. On motion duly filed and served, with full payment of the docket and other lawful fees and the deposit for costs before the expiration of the reglementary period, the Supreme Court may for justifiable reasons grant an extension of thirty (30) days only within which to file the petition. Moreover, Section 7 of Presidential Decree No. 1606, as amended by Section 3 of Rep. Act No. 7975, states: Form, Finality and Enforcement of Decisions. ... Decisions and final orders of the Sandiganbayan shall be appealable to the Supreme Court by petition for review on certiorari raising pure questions of law in accordance with Rule 45 of the Rules of Court. It appears that petitioner resorted to the special civil action of certiorari because it failed to seasonably interpose an appeal. It must be noted that the Sandiganbayan promulgated the assailed resolution on 02 August 2002. Petitioner filed a motion for reconsideration thereof but the same was denied in a resolution dated 11 September 2002, a copy of which was received by the petitioner on 13 November 2002. The petitioners remedy would have been to file a petition for review on certiorari under Rule 45[23] before this Court, and, reckoning the fifteen-day period to file the same from receipt of the resolution denying the motion for reconsideration, the petitioner had until 28 November 2002 to file said petition for certiorari before this Court. Instead, petitioner filed the instant petition for certiorari under Rule 65[24] on 10 January 2003 or forty-three (43) days after the lapse of the reglementary period within which to file an appeal via petition for review on certiorari. Apparently, petitioner resorted to the instant special civil action after failing to appeal within the fifteen-day reglementary period. This, of course, cannot be done. The special civil action of certiorari cannot be used as a substitute for an appeal which the petitioner already lost.[25]

This Court has often enough reminded members of the bench and bar that a special civil action for certiorari under Rule 65[26] lies only when there is no appeal nor plain, speedy and adequate remedy in the ordinary course of law.[27] Certiorari is not allowed when a party to a case fails to appeal a judgment or final order despite the availability of that remedy. The remedies of appeal and certiorari are mutually exclusive and not alternative or successive.[28] The antithetic character of the remedies of appeal and certiorari has been generally observed by this Court save only in those rare instances where appeal is satisfactorily shown to be an inadequate remedy. In this case, petitioner has failed to show any valid reason why the issue being raised by the petitioner, whether or not respondent court committed grave abuse of discretion in quashing the Information in Criminal Case No. 27136, could not have been raised on appeal. Admittedly, this Court, may treat a petition for certiorari under Rule 65 as having been filed under Rule 45 to serve the higher interest of justice.[29] Such liberal application of the rules, however, finds no application if the petition is filed well beyond the reglementary period for filing a petition for review without any reason therefor.[30] Concomitant to a liberal application of the rules of procedure should be an effort on the part of the party invoking liberality to at least explain its failure to comply with the rules.[31] This Court finds no exceptional circumstances to justify the relaxation of the rules and neither has petitioner tried to offer any valid reason or explanation as to why it failed to properly observe the rules of procedure. This being the case, another elementary rule of procedure applies, i.e., the perfection of an appeal within the reglementary period is not only mandatory but also jurisdictional so that failure to do so renders the questioned resolution final and executory, and deprives this Court of jurisdiction to alter the final order, much less to entertain the appeal.[32] This rule is founded upon the principle that the right to appeal is not part of due process of law but is a mere statutory privilege to be exercised only in the manner and in accordance with the provisions of law.[33] It is a jurisdictional caveat that not even this Court can trifle with.[34] Even on the ground invoked by the petitioner, i.e., that the Sandiganbayan committed grave abuse of discretion in quashing the Information, the present petition must be dismissed. There is grave abuse of discretion where the public respondent acts in a capricious, whimsical, arbitrary or despotic manner in the exercise of its judgment as to be equivalent to lack of jurisdiction.[35] The abuse of discretion must be so patent and gross as to amount to an evasion of a positive duty or a virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law as where the power is exercised in an arbitrary and despotic manner by reason of passion or hostility.[36] The material dates of the case reveal that the Decision of the Court of Appeals ordering the reinstatement of private complainants was promulgated on 31 July 2001. The said decision became final and executory as private respondent did not appeal on time. Private complainants filed with the CSC an Urgent Motion for Execution of the same on 22 October 2001. The Office of the Ombudsman through the Office of the Special Prosecutor filed the Information before the Sandiganbayan on 28 January 2002 while the Urgent Motion for Execution was still pending. It was only on 20 February 2002 that the Urgent Motion for Execution was granted. Private respondent filed a motion for reconsideration thereof which was eventually denied in an order of the CSC Central dated 23 April 2002. Undoubtedly, when the Information was filed with the Sandiganbayan, there was yet no Writ of Execution from the CSC ordering private respondent to reinstate private complainants. Private respondent could not have committed the crime alleged in the Information failure to reinstate private complainants to their positions and to pay back wages due them - as there was no writ or order from the CSC to reinstate private complainants and to pay them back wages. As correctly put by the respondent Court [i]t strains reason how accused could be

charged criminally in this Court for failure to enforce a decision, the execution of which the private complainants asked in the Civil Service Commission. Public respondent, in rendering t he assailed resolutions, was evidently, an ocean away from being gravely abusive of its discretion. In sum, we find that the petition is bereft of merit. It is not the proper remedy and even if it is, no grave abuse of discretion was committed by the Sandiganbayan. WHEREFORE, the instant petition for certiorari is DISMISSED for lack of merit. SO ORDERED. 372 People vs. Sandiganbayan [GR 101724, 3 July 1992] En Banc, Grino-Aquino (J): 14 concur Facts: Two letter-complaints were filed on 28 October 1986 and 9 December 1986, with the Tanodbayan by Teofilo Gelacio, a political leader of Governor Valentina Plaza, wife of Congressman Democrito O. Plaza of Agusan del Sur, shortly after the Ceferino S. Paredes had replaced Mrs. Plaza as OIC/provincial governor of Agusan del Sur in March 1986. Gelacio's complaint questioned the issuance to Governor Paredes, when he was still the provincial attorney in 1976, of a free patent title for Lot 3097-8, Pls. 67, with an area of 1,391 sq.m., more or less, in the Rosario public land subdivision in San Francisco, Agusan del Sur. On 23 February 1989, the Tanodbayan referred the complaint to the City Fiscal of Butuan City who subpoenaed Governor Paredes. However, the subpoena was served on, and received by, the Station Commander of San Francisco, Agusan del Sur, who did not serve it on Paredes. Despite the absence of notice to Paredes, Deputized Tanodbayan/City Fiscal Ernesto M. Brocoy conducted a preliminary investigation ex parte. He recommended that an information be filed in court. His recommendation was approved by the Tanodbayan who, on 10 August 10, 1989, filed an information in the Sandiganbayan (TBP Case 86-03368), alleging "That on or about January 21, 1976, or sometime prior or subsequent thereto, in San Francisco, Agusan del Sur, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, a public officer, being then the Provincial Attorney of Agusan del Sur, having been duly appointed and qualified as such, taking advantage of his public position, did, then and there, wilfully and unlawfully persuade, influence and induce the Land Inspector of the Bureau of Lands, by the name of Armando L. Luison to violate an existing rule or regulation duly promulgated by competent authority by misrepresenting to the latter that the land subject of an application filed by the accused with the Bureau of Lands is disposable by a free patent when the accused well knew that the said land had already been reserved for a school site, thus by the accused's personal Constitutional Law II, 2005 ( 5 )Narratives (Berne Guerrero) misrepresentation in his capacity as Provincial Attorney of Agusan del Sur and applicant for a free patent, areport favorably recommending the issuance of a free patent was given by the said Armando L. Luison, land inspector, thereby paving the way to the release of a decree of title, by the Register of Deeds of Agusan del Sur, an act committed by the accused, in outright prejudice of the public interest." Paredes was arrested upon a warrant issued by the Sandiganbayan. Claiming that the information and the warrant of arrest were null and void because he had been denied his right to a preliminary investigation, Paredes refused to post bail. His wife filed a petition for habeas corpus praying this Court to order his release, but the Supreme Court denied her petition because the proper remedy was for Paredes to file a bail bond of P20,000 fixed by the Sandiganbayan for his provisional liberty, and move to quash the information before being arraigned. On 5 April 1991, Paredes filed in the Sandiganbayan "An Urgent Motion to Quash Information and to Recall Warrant of Arrest." After the parties had filed their written arguments, the Sandiganbayan issued a resolution on 1 August 1991 granting the motion to quash on the ground of prescription of the offense charged. The People of the Philippines, through the Solicitor General, filed the petition for certiorari. Issue: Whether Paredes may no longer be prosecuted for his violation of RA 3019 in 1976. Held: Batas Pambansa 195 which was approved on 16 March 1982, amending Section 11 of RA 3019 by increasing from 10 to 15 years the period for the prescription or extinguishment of a violation of the AntiGraft and Corrupt Practices Act, may not be given retroactive application to the "crime" which was committed

by Paredes in January 1976 yet, for it would be prejudicial to the accused. It would deprive him of the substantive benefit of the shorter (10 years) prescriptive period under Section 11, RA 3019 which was an essential element of the "crime" at the time he committed it. To apply BP 195 to Paredes would make it an ex post facto law for it would alter his situation to his disadvantage by making him criminally liable for a crime that had already been extinguished under the law existing when it was committed. Since an ex post facto law is proscribed by our Constitution (Sec. 22, Article III, 1987 Constitution), the Sandiganbayan committed no reversible error in ruling that Paredes may no longer be prosecuted for his supposed violation of RA 3019 in 1976, 6 years before BP 195 was approved. The new prescriptive period under that law should apply only to those offenses which were committed after the approval of BP 195. PEOPLE VS. SANDIGANBAYAN [211 SCRA 241; G.R. NO. 101724; 3 JUL 1992] Monday, February 09, 2009 Posted by Coffeeholic Writes Labels: Case Digests, Political Law Facts: Two letter complaints were filed with the Tanodbayan by Teofilo Gelacio on October 28,1986 and December 9, 1986, a political leader of Governor Valentina Plaza, wife of Congressman Democrito Plaza of Agusan del Sur, shortly after private respondent had replaced Mrs. Plaza as OIC/provincial Governor of Agusan del Sur on March 1986 The complaint questioned the issuance to Governor Paredes, when he was still the provincial attorney in 1976 of a free patent title for a lot in the Rosario public land subdivision in San Francisco, Agusan del Sur. He misrepresented to a Lands Inspector of the Bureau of Lands that the lands subject herein are disposable lands, thereby inducing said inspector to recommend approval of his application for free patent. On August 10, 1989 an information for violation of RA 3019 Anti-Graft and Corrupt Practices Act was then filed in the Sandiganbayan after an ex parte preliminary investigation. A motion to quash the information was filed by the private respondent contending among others that he is charged for an offence which has prescribed. Said motion was granted. The crime was committed on January 21, 1976, period of prescription was 10 years, therefore it has prescribed in 1986. Now the motion to quash was being assailed.

Issue: Whether or Not the motion to quash validly granted.

Held: Yes. RA 3019, being a special law the computation of the period for the prescription of the crime is governed by Sec. 29 of Act No. 3326, which begins to run from the day of the commission of the crime and not the discovery of it. Additionally, BP 195 which was approved on March 16, 1982, amending Sec. 11 of RA 3019 by increasing ten to fifteen years of the period for the prescription or extinguishment of a violation of RA 3019 may not be given retroactive application to the crime which was committed by Paredes, as it is prejudicial to the accused. To apply BP 195 to Paredes would make it an ex post facto law1 for it would alter his situation to his disadvantage by making him criminally liable for a crime that had already been extinguished under the law existing when it was committed. G.R. No. L-61355 February 18, 1983 MAXIMO G. RODRIGUEZ, petitioner, vs. THE HON. SANDIGANBAYAN, Second Division, THE PEOPLE OF THE PHILIPPINES, herein represented by the HON. TANOD-BAYAN and ATTY. DIGNO A. ROA, respondents. Maximo Rodriguez in his own behalf. The Solicitor General for respondents. ESCOLIN, J.:

Petition for certiorari and prohibition with prayer for pre injunction to declare the Sandiganbayan without jurisdiction over Criminal Case No. 3693, entitled, "People of the Philippines versus Maximo G. Rodriguez", petitioner advancing as grounds therefor: (1) the ex post facto character of Presidential Decree No. 1606 creating the Sandiganbayan and (2) the exclusive jurisdiction of the regular courts of first instance over the offense alleged in the Information. Petitioner further assails the validity of the Information filed by the Tanodbayan in said case for alleged failure on the part of the latter to conduct a proper preliminary investigation, in violation of petitioner's fundamental right to due process as wen as Republic Act No. 5180, as amended by Presidential Decree No. 77 and 911. On January 24, 1964, petitioner Maximo G. Rodriguez was appointed provincial fiscal of the Province of Misamis Oriental with official station at Cagayan de Oro city. On September 23, 1975 following the acceptance by the President of the Philippines of the courtesy resignation of the Register of Deeds of Misamis Oriental, petitioner was designated as Ex-Officio Register of Deeds of Misamis Oriental and Cagayan de Oro City. On October 13, 1977, respondent Digno A. Roa filed an affidavit-complaint before the Office of the City Fiscal of Cagayan de Oro, docketed as Criminal Case No. I.S. 15247, charging petitioner with the crimes of estafa, falsification and usurpation of public functions. A subpoena was issued to petitioner on November 2, 1977, and on November 11, 1977, petitioner submitted his counter-affidavit to the City Fiscal. On March 20, 21, and 22, 1978, State Prosecutor Lilia Lopez, who had been assigned by the Ministry of Justice to assist the City Fiscal of Cagayan de Oro in the said case, conducted a lengthy preliminary investigation. Barely two month later, on May 1, 1978, petitioner was separated from the service by reason of the acceptance by the President of the Philippines of his letter of resignation dated October 10, 1972. On December 12, 1978, State Prosecutor Lopez issued a resolution finding petitioner, together with Isidro Udang and Josefa Ebora Pacardo, "probably guilty of estafa thru falsification." However, before this resolution could be approved by the then Undersecretary of Justice Catalino Macaraig, Jr., the Office of the Tanodbayan was created and the entire records of the case were transferred to it. The case was referred to Tanodbayan Prosecutor Francisco P. Rabanes, who, on February 25, 1980, issued a subpoena to petitioner, setting the case for another preliminary investigation. In response, petitioner asked Rabanes to just consider in said proceedings the counter-affidavit he had earlier submitted to the City Fiscal of Cagayan de Oro. Thus, on the basis of the records, Rabanes issued a resolution, dated June 18, 1980, recommending dismissal of Criminal Case No. I.S. 15247 for lack of probable cause. After the Rabanes resolution had been forwarded to the Tanodbayan for review, Tanodbayan Legal Officer Cesar Mindaro, after reviewing the records, came out with a recommendation to the Tanodbayan Prosecution and Investigation Office that the Rabanes resolution be set aside and that said office be directed to cause the filing of an information against petitioner for violation of Sec. 3[e] of Republic Act No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act. In a Memorandum dated October 1, 1980, addressed to the Hon. Vicente G. Ericta, then Tanodbayan, the Tanodbayan Prosecution and Investigation Office, thru Prosecutor Florencio Ruiz, Jr., approved Mindaro's recommendation with the additional suggestion, to wit: However, considering that the basic complaint (affidavit of Digno A. Roa, dated October 11, 1977) specifically charged Maximino G. Rodriguez, Rosalio Pacardo, Josefa Ebora Pacardo and three (3) Does with violations of Articles 316, paragraph 1, and 237, in relation to Art. 171, paragraph 4 all of the Revised Penal Code, it would be in keeping with the fundamental principles of fair play [cf: Bandiola v. CFI of Misamis Oriental, 35 SCRA] if a new preliminary investigation focused on the proper charge under Section 3[e] of the Anti-Graft and Corrupt Practices Act [R.A. 3019] be conducted. In compliance with the above cited recommendation, a team of special prosecutors was created, headed by Legal Officer Cesar Mindaro. Another subpoena dated October 3, 1980 was issued to petitioner requiring him to appear "in the Office of the City Fiscal of Cagayan de Oro City, on October 20, 1980 and thereafter until the investigation is finished." The subpoena was hand-carried to Cagayan de Oro City and on October 15, 1980 was served upon petitioner's wife, Martha B. Rodriguez, in the absence of petitioner who was then in Catarman Northern Samar Hospital attending to his sick mother, and who, on October 19, 1980, proceeded directly to Manila for an appearance before the Court of Appeals as counsel for one Dr. Julio Ruiz.

In the resolution signed by Special Prosecutors Carlos D. Montemayor and Cesar J. Mindaro, dated August 17, 1981, it appears that the preliminary investigation on the new charge against petitioner was conducted from October 19-25, 1981 at the appointed place. While petitioner himself was absent during said proceedings, his law partner, Atty. Alberto Martinez, as well as his son, the Hon. Rufus Rodriquez of the Provincial Board of Misamis Oriental, were present and they actively participated therein by examining the complainant and his witnesses. Petitioner, however, denied the representative character of the appearance of his law partner and his son before the investigating body, arguing that he could not have possibly authorized them to act in his behalf as he himself was unaware of the holding of said preliminary investigation. He further disputed the number of days during which the preliminary investigation was reported to have been conducted for the reason that upon his return to Cagayan de Oro from Manila on October 23, 1980, he immediately proceeded to the Fiscal's Office only to discover that the investigating body had already left for Manila. Thus, on October 29, 1980, petitioner went to Manila to file his memorandum and to argue or any before the Tanodbayan team of special prosecutors. On August 17, 1981, the investigating team issued a resolution directing the filing of an Information against petitioner and Josefa Ebora Pacardo before the Sandiganbayan for violation of Sec. 3[e] of the Anti-Graft and Corrupt Practices Act. Petitioner filed a motion for reconsideration of this resolution, but the same was denied. The Information was finally filed before the Sandiganbayan on September 9, 1981. On November 25, 1981, petitioner filed a motion to quash the Information, which was opposed by the prosecution. On December 11, 1981, petitioner was arraigned. He entered a plea of not guilty, without prejudice to the resolution of his pending motion to quash. On April 16, 1982, the Sandiganbayan, Second Division, denied the motion to quash. His motion for reconsideration of May 17, 1982 having been likewise rejected, petitioner now seeks relief from this Court. The fallacy in characterizing Presidential Decree No. 1606 as an ex-post facto law in so far as the statutory right of recourse to the Court of Appeals is denied petitioner, has been exhibited by Chief Justice Fernando in the case ofNuez v. Sandiganbayan 1, reiterated in De Guzman v. People of the Philippines and the Sandiganbayan, G.R. No. L-54288, December 15, 1982. It was there expounded that: The test as to whether the ex-post facto clause is disregarded, in the language of Justice Harlan in the just-cited Thompson V. Utah decision taking from an accused any right that was regarded, at the tune of the adoption of the constitution as vital for the protection of life and liberty, and which he enjoyed at the time of the commission of the offense charged against him.' The crucial words are "vital for the protection of life and liberty," of a defendant in a criminal case. Would the ommission of the Court of Appeals as an intermediate tribunal deprive petitioner of a right vital to the protection of his liberty? The answer must be in the negative. In the first place, his innocence or guilt is passed upon by the three-judge court of a division of respondent court. Moreover, a unanimous vote is required, fairing which, "the Presiding Judge shall designate two other justices from among members of the Court to sit temporarily with them, forming a division of five justices, and the concurrence of a majority of such division shall be necessary for rendering judgment." Then if convicted, this Court has the duty if he seeks a review to see whether any error of law was committed to justify a reversal of the judgment. Petitioner makes much, perhaps excessively so as is the wont of advocates, of the fact that there is no review of the facts. What cannot be sufficiently stressed is that this Court in determining whether or not to give due course to the petition for review must be convinced that the constitutional presumption of innocence has been overcome. In the sense, it cannot be said that on the appellate level there is no way of scrutinizing whether the quantum of evidence required for a finding of guilt has been satisfied. The standard as to when there is proof of such weight to justify a conviction is set forth in People v. Dramayo. Petitioner's view that "based on the standpoint of territorial jurisdiction, the Sandiganbayan is a National Court with station in the City of Manila, and therefore, the tremendous expenses to be incurred by the petitioner and his witnesses in coming back and forth to the City of Manila are factors that are really prejudicial to the petitioner." This Court is fully aware of the harsh reality that expenses are a necessary evil in the prosecution or defense of a suit. But the fact alone that a person may, by circumstances, be put to a greater expense in defending his cause in court of justice cannot justify the categorization of P-1606 as an ex-post facto legislation. For as petitioner himself pointed out:

It is now well-settled that statutory changes in the mode of trial or the rules of evidence, which do not deprive the accused of a defense and which operate only in a limited and unsubstantial manner to his disadvantage, are not prohibited. [Beazall v. Ohio, 269 U.S. 167, 170 (1925)]. Petitioner further advances the theme that since the allegations in the Information define an offense punishable under Sections 117 and 119 of the Land Registration Act [Act No. 4961, the proper forum for its prosecution is the regular court of first instance, specifically the Court of First Instance of Misamis Oriental, as provided in Section 118 of said Act 496. The argument is bereft of merit. The Information [Annex "A", p. 26, Rollo] in Criminal Case No. 3693 reads as follows: That on or about August, 1977 or for sometime prior or subsequent thereto in the City of Cagayan de Oro, Misamis Oriental, Philippines, the accused Maximo G. Rodriguez, a public officer having been appointed and qualified as Provincial Fiscal of Misamis Oriental and at the same time was the Ex-Officio Register of Deeds of Cagayan de Oro City, conspiring and confederating with Josefa E. Pacardo, a private individual, and mutually helping each other did then and there wilfully, unlawfully and feloniously through manifest partiality, evident bad faith and/or gross inexcusable negligence issued TCT No. T-24213-A in favor of his co-accused Josefa E. Pacardo without petition from the registrant for segregation and without any subdivision plan as required by Section 44 of the Land Registration Act and while it appears in T.C.T. No. 24213-A that the same is a transfer from Subdivision Original Certificate of Title No. P-47 the same was not recorded in the Original Certificate of Title, giving the impression that TCT No. 24213-A was not derived from Title No. P-47 likewise fairing to carry over the encumbrances appearing in the old title further he issued the title to his co-accused immediately thereafter while issuing that of Digno Roa a month later, or more particularly only on August 11, 1977, as a consequence thereof his co-accused was able to sell to one Wilson Gaw, portions of the land covered by Original TCT No. P-47 thereby causing undue injury to Digno Roa and giving unwarranted benefit to his coaccused Josefa E. Pacarda. The phraseology of the above-quoted information leaves no doubt whatsoever that petitioner is being charged with a violation of Section 3[e] of the Anti-Graft and Corrupt Practices Act, in that as a public officer, he allegedly committed an act "causing any undue injury to any party, including the government, or giving any private party any unwarranted benefits, or preference in the discharge of his administrative or judicial functions thru manifest partiality, evident bad faith or gross inexcusable negligence ..." [Sec. 3(e), R.A. 3019]. Under P.D. 1606, it is the Sandiganbayan that is vested with original and exclusive jurisdiction over this offense in accordance with Section 4 thereof to wit: Sec. 4. Jurisdiction. The Sandiganbayan shall have jurisdiction over: [a] Violations of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act, and Republic Act No. 1379. Thus, as pointed out by the respondent court in upholding its jurisdiction over Criminal Case No. 3693, The fact that the Information contains allegations which accused [referring to petitioner] contends are recitals of facts constituting violation of Sec. 44 of Art. [sic] 496 is neither decisive nor controlling, since the same allegations also constitute a corrupt practice within the purview of Sec. 3, par. [e] of the Anti-Graft Law, which declares unlawful, certain acts or omissions of public officers, in addition to those already penalized by existing laws including the provisions of the Land Registration Act. (Resolution dated July 8, 1982, of the Sandiganbayan, Second Division, p. 128, Rollo). Petitioner would characterize the information in Criminal Case No. 3693 as a patent nullity for alleged failure of the Tanodbayan Team of Special Prosecutors to conduct a proper preliminary investigation. It is contended that the irregularities committed in the conduct of the preliminary investigation had divested the Tanodbayan of any authority to file the challenged information. Petitioner's thesis is untenable. The information in question contains the following certification 2 by Special Prosecutor Christina J. Corral-Paterno Preliminary investigation has been conducted in this case; that the complainant and his witnesses have been examined; that the accused were given an opportunity to submit controverting evidence; that on the basis of the sworn statements and other evidence submitted, there is reasonable ground to believe that the offense charged has been committed and that the accused are probably guilty thereof.

In the absence of clear and convincing evidence to the contrary, We accord credence to this certification in accordance with the presumption that "official duty has been regularly performed." The account of what transpired during the preliminary investigation, as reflected on the records, strengthens, rather than destroys, this presumption. It is not disputed that a subpoena dated October 3, 1980 was sent to petitioner and, as admitted by petitioner himself, said subpoena was received by his wife, Martha B. Rodriguez, on October 15, 1980. The records likewise disclose that, although petitioner himself was absent during the preliminary investigation, he was represented by his law partner, Atty. Alberto Martinez, and his son, Rufus, who actively participated in the proceedings by examining the complainant and his witnesses. And while petitioner denies the representative character of their appearance, it appears that petitioner had not only submitted a memorandum to the Tanodbayan but had in fact ventilated his arguments at a hearing before said body. Thus, petitioner had more than ample opportunity to be heard, and as he, in fact, had heard, he cannot now claim denial of due process. It is also significant to note that P.D. 911 which petitioner claims to have been violated, authorizes the holding of an ex parte, preliminary investigation under Section 1 [b] thereof, which provides: ... If respondent cannot be subpoenaed, or if subpoenaed does not appear before the investigating fiscal or state prosecutor, the preliminary investigation shall proceed without him. ... IN VIEW OF THE FOREGOING, the instant petition for certiorari and prohibition is dismissed. No costs. SO ORDERED. Fernando, CJ., Aquino, Concepcion, Jr., Guerrero, Abad Santos, De Castro, Melencio-Herrera; Plana, Vasquez, Relova and Gutierrez, Jr., JJ., concur.

G.R. No. L-19328 December 22, 1989 ALEJANDRO KATIGBAK and MERCEDES K. KATIGBAK, plaintiffs-appellants, vs. THE SOLICITOR GENERAL, EPIFANIO VILLEGAS, ARTURO XAVIER, PONCIANO FERNANDO, ROSENDO DOMINGO and LEONARDO LUCENA, defendants-appellees. G.R. No. L-19329 December 22, 1989 REPUBLIC OF THE PHILIPPINES, plaintiff-appellee, vs. ALEJANDRO KATIGBAK and MERCEDES K. KATIGBAK defendants-appellants. Augusto Kalaw for plaintiffs-appellants. NARVASA, J.: These cases were certified to this Court by the Court of Appeals for resolution on appeal, 1 since the central issue involved is the constitutionality of Republic Act No. 1379, "An Act Declaring Forfeiture in Favor of the State of Any Property Found To Have Been Unlawfully Acquired by Any Public Officer or Employee and Providing for the Proceedings Therefor. 2 As posed by the referral resolution, 3 the question is whether or not said statute. ...en cuanto autoriza la confiscacion en favor del Estado de las propiedades ilegalmente adquiridas por un funcionario o empleado del Gobierno antes de la aprobacion de la ley ... es nula y anti-constitutional porque: (a) es una Ley ex-post facto que autoriza la confiscacion de una propiedad privada adquirida antes de la aprobacion de la ley y obliga el funcionario o empleado publico a explicar como adquirio sus propiedades privadas, compeliendo de esta forma a incriminarse a si mismo, y en cierto modo autoriza la confiscacion de dicha propiedad sin debido proceso de la ley; y (b) porque autoriza la confiscacion de inmuebles previamente hipotecados de buena fe a una persona. The proceedings at bar originated from two (2) actions filed with the Court of First Instance of Manila. The first was Civil Case No. 30823, instituted by the Spouses Alejandro Katigbak and Mercedes Katigbak. In their complaint they prayed that: (1) the Solicitor General be enjoined from filing a complaint against them for forfeiture of property under the above mentioned R.A. No. 1379; (2) said statute be declared unconstitutional in

so far as it authorizes forfeiture of properties acquired before its approval, or, alternatively, a new preliminary investigation of the complaint filed against Alejandro Katigbak by NBI officers be ordered; (3) properties acquired by Alejandro Katigbak when he was out of the government service be excluded from forfeiture proceedings; and (4) the NBI officers and the Investigating Prosecutor (Leonardo Lucena) be sentenced to pay damages. The second action was Civil Case No. 31080, commenced by petition 4 filed by the Republic of the Philippines against Alejandro Katigbak, his wife, Mercedes, and his son, Benedicto, seeking the forfeiture in favor of the State of the properties of Alejandro Katigbak allegedly gotten by him illegally, in accordance with R.A. No. 1379. Said properties were allegedly acquired while Katigbak was holding various positions in the government, the last being that of an examiner of the Bureau of Customs; and title to some of the properties were supposedly recorded in the names of his wife and/or son. The cases were jointly tried. The judgment thereafter rendered 5 (1) dismissed the complaint and the counterclaim in Civil Case No. 30823, the first action; and (2) as regards Civil Case No. 31080, ordered "that from the properties (of Katigbak) enumerated in this decision as acquired in 1953,1954 and 1955, shall be enforced a lien in favor of the Government in the sum of P100,000.00. 6 The judgment also declared that the "impatience of the Investigating Prosecutor" during the preliminary inquiry into the charges filed against Katigbak for violation of R.A. No. 1379 did not amount to such arbitrariness as would justify annulment of the proceedings since, after all, Katigbak was able to fully ventilate his side of the case in the trial court; 7 that R.A. No. 1379 is not penal in nature, its objective not being the enforcement of a penal liability but the recovery of property held under an implied trust; 8 that with respect to things acquired through delicts, prescription does not run in favor of the offender; 9 that Alejandro Katigbak may not be deemed to have been compelled to testify against his will since he took the witness stand voluntarily. 10 The Katigbaks moved for reconsideration and/or new trial. The Trial Court refused to grant a new trial but modified its decision by reducing the amount of "P 100,000.00 in the dispositive portion ... to P80,000.00." 11 Appeal was taken from this verdict of the Court of Appeals by the Katigbaks which appeal, as earlier stated, was certified to this Court. No less than 18 errors have been attributed by the Katigbaks to the Court a quo. 12 They concern mainly the character of R.A. No. 1379 as an ex-post facto law, principally because it imposes the penalty of forfeiture on a public officer or employee acquiring properties allegedly in violation of said R.A. No. 1379 at a time when that law had not yet been enacted. 13 Whatever persuasiveness might have been carried by the ruling on the issue of the learned Trial Judge in 1961, the fact is that the nature of R.A. No. 1379 as penal was in 1962 clearly and categorically pronounced by this Court inCabal v. Kapunan, Jr. 14 Citing voluminous authorities, the Court in that case declared that "forfeiture to the State of property of a public officer or employee which is manifestly out of proportion to his salary as such ... and his other lawful income and the income from legitimately acquired property ... has been held ... to partake of the nature of a penalty"; and that "proceedings for forfeiture of property although technically civil in form are deemed criminal or penal, and, hence, the exemption of defendants in criminal cases from the obligation to be witnesses against, themselves is applicable thereto. 15 The doctrine was reaffirmed and reiterated in 1971 in republic v. Agoncillo. 16 And germane is the 1977 ruling of the Court in de la Cruz v. Better Living, Inc. 17 involving among others the issue of the validity and enforceability of a written agreement alleged to be in violation of Republic Act No. 3019, otherwise known as the Anti-Graft and Corrupt PracticesAct to the effect that "the provisions of said law cannot be given retro active effect." The forfeiture of property provided for in Republic Act No. 1379 being in the nature of a penalty; and it being axiomatic that a law is ex-post facto which inter alia "makes criminal an act done before the passage of the law and which was innocent when done, and punishes such an act," or, "assuming to regulate civil rights and remedies only, in effect imposes a penalty or deprivation of a right for something which when done was lawful," it follows that penalty of forfeiture prescribed by R.A. No. 1379 cannot be applied to acquisitions made prior to its passage without running afoul of the Constitutional provision condemning ex post facto laws or bills of attainder. 18 But this is precisely what has been done in the case of the Katigbaks. The Trial Court declared certain of their acquisitions in 1953, 1954 and 1955 to be illegal under R.A. No. 1379 although made prior to

the enactment of the law, and imposed a lien thereon "in favor of the Government in the sum of P100,000.00." Such a disposition is, quite obviously, constitutionally impermissible. As to the issue of whether or not the Prosecuting Fiscal, Leonardo Lucena, should be made answerable for damages because the filing of the forfeiture proceedings, Civil Case No. 31080, resulted from a preliminary investigation which was allegedly conducted by Fiscal Lucena in an arbitrary and highhanded manner, suffice it to state that the trial court found no proof of any intention to persecute or other ill motive underlying the institution of Civil Case No. 31080. The trial court further found that during the preliminary investigation by Fiscal Lucena on September 13, 19, 24, 25 and 26, 1956, Alejandro Katigbak was assisted by reputable and competent counsel, Atty. Estanislao A. Fernandez and Atty. Antonio Carag. The mere fact that the preliminary investigation was terminated against the objection of Katigbak's counsel, does not necessarily signify that he was denied the right to such an investigation. What is more, the Trial Court's factual conclusion that no malice or bad faith attended the acts of public respondents complained of, and consequently no award of damages is proper, cannot under established rule be reviewed by this Court absent any showing of the existence of some recognized exception thereto. The foregoing pronouncements make unnecessary the determination of the other issues. WHEREFORE, the judgment of the Court a quo, in so far as it pronounces the acquisitions of property by the appellants illegal in accordance with Republic Act No. 1379 and imposes a lien thereon in favor of the Government in the sum of P80,000.00 is hereby REVERSED AND SET ASIDE, but is AFFIRMED in all other respects. No pronouncement as to costs. SO ORDERED. Katigbak v. Solicitor General 180 SCRA 540 FACTS: RA 1379 was enacted providing for the forfeiture in favor of the State of any property found to have been unlawfully acquired by any public officer. Court ruled that the properties of the Katigbaks acquired during 1953-1955 shall be enforced a lien in favor of the Gov in the sum of P100 T. The Katigbaks assail RA 1379 as it was an ex post facto law, principally bec it imposes the penalty of forfeiture on a public officer or EEs acquiring properties allegedly in violation of RA 1379 at a time when that law had not yet been enacted. ISSUE: Whether RA 1379 is an ex post facto law. HELD: YES. Forfeiture to the State of property of a public officer which is manifestly out of proportion to his salary as such & other lawful income and the income from legitimately acquired property has been held to partake of the nature of a penalty & that proceedings for forfeiture of property although technically civil in form are deemed criminal of penal & hence, the exemption of defendants in criminal case fr the obligation to be witnesses against, themselves is applicable thereto. Provisions of the law cannot be given retroactive effect. Penalty of forfeiture cannot be applied to acquisitions prior to its enactment without running afoul of the Constitutional provision condemning ex post facto lawsbecause (1) it makes criminal an act b4 the passage of the law & which was innocent when done, & punishes an act AND (2) assuming to regulate civil rights and remedies only, in effect imposes a penalty or deprivation of a right for something which when done was lawful. Therefore, wagi c Mr. & Mrs. Katigbak.

G.R. No. 176169

November 14, 2008

ROSARIO NASI-VILLAR, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent. DECISION TINGA, J.: This is a Petition for Review1 under Rule 45 of the Rules of Court filed by petitioner Rosario Nasi-Villar assailing the Decision2 dated 27 June 2005 and Resolution3 dated 28 November 2006 of the Court of Appeals. This case originated from an Information4 for Illegal Recruitment as defined under Sections 6 and 7 of Republic Act (R.A.) No. 80425 filed by the Office of the Provincial Prosecutor of Davao del Sur on 5 October 1998 for acts committed by petitioner and one Dolores Placa in or about January 1993. The Information reads: That on [sic] or about the month of [January 1993], in the Municipality of Sta. Cruz, Province of Davao del Sur, Philippines and within the jurisdiction of the Honorable Court, the aforenamed accused, conspiring together, confederating with and mutually helping one another through fraudulent representation and deceitful machination, did then and there [willfully], unlawfully and feloniously recruit Nila Panilag for employment abroad[,] demand and receive the amount ofP6,500.00 Philippine Currency [sic] as placement fee[,] the said accused being a non-licensee or non-holder of authority to engage in the recruitment of workers abroad to the damage and prejudice of the herein offended party. CONTRARY TO LAW.6 On 3 July 2002, after due trial, the Regional Trial Court (RTC), Br. 18, Digos City, Davao del Sur found the evidence presented by the prosecution to be more credible than that presented by the defense and thus held petitioner liable for the offense of illegal recruitment under the Labor Code, as amended.7 The dispositive portion of the decision reads: WHEREFORE, premises considered, the Court hereby finds accused ROSARIO NASI-VILLAR GUILTY BEYOND REASONABLE DOUBT of Illegal Recruitment and, in accordance with the penalty set forth under the Labor Code, as amended, said accused is hereby sentenced to an indeterminate penalty ranging from FOUR YEARS as minimum to FIVE YEARS as maximum. On the civil aspect of the case, there being no substantial proof presented to justify a grant of civil damages, this Court makes no pronouncement thereon. With respect to accused Ma. Dolores Placa, who is still at large, the records of this case are hereby sent to the archives to be retrieved in the event that said accused would be apprehended. Issue an alias warrant of arrest for the apprehension of said accused. SO ORDERED.8 Petitioner appealed to the Court of Appeals raising as sole issue the alleged error by the trial court in finding her guilty of illegal recruitment on the basis of the trial court's appreciation of the evidence presented by the prosecution. The Court of Appeals, in its Decision dated 27 June 2005,9 following the principle that an appeal in a criminal case throws the whole case wide open for review, noted that the criminal acts alleged to have been committed happened sometime in 1993. However, R.A. No. 8042, under which petitioner was charged, was approved only on 7 June 1995 and took effect on 15 July 1995. Thus, the Court of Appeals declared that petitioner should have been charged under the Labor Code, in particular Art. 13(b) thereof, and not under R.A. No. 8042. Accordingly, it made its findings on the basis of the provisions of the Labor Code and found petitioner liable under Art. 38, in relation to Art. 13(b), and Art. 39 of the Labor Code. The appellate court affirmed with modification the decision of the RTC, decreeing in the dispositive portion, thus: WHEREFORE, in view of all the foregoing, the appealed Decision of the Regional Trial Court, 11th Judicial Region, Br. 18, City of Digos, Province of Davao del Sur, finding Rosario Nasi-Villar guilty beyond reasonable doubt o the crime of Illegal Recruitment is AFFIRMED withMODIFICATION in that Rosario Nasi-Villar is ORDERED to pay Nila Panilag the sum ofP10,000.00 as temperate damages. SO ORDERED.10 On 28 November 2006, the appellate court denied petitioner's motion for reconsideration.11

Hence, petitioner filed the instant petition for review. Petitioner alleges that the Court of Appeals erred in failing to consider that R.A. No. 8042 cannot be given retroactive effect and that the decision of the RTC constitutes a violation of the constitutional prohibition against ex post facto law. Since R.A. No. 8042 did not yet exist in January 1993 when the crime was allegedly committed, petitioner argues that law cannot be used as the basis of filing a criminal action for illegal recruitment. What was applicable in 1993 is the Labor Code, where under Art. 38, in relation to Art. 39, the violation of the Code is penalized with imprisonment of not less than four (4) years nor more than eight (8) years or a fine of not less than P20,000.00 and not more than P100,000.00 or both. On the other hand, Sec. 7(c) of R.A. No. 8042 penalizes illegal recruitment with a penalty of imprisonment of not less than six (6) years and one (1) day but not more than twelve (12) years and a fine not less than P200,000.00 nor more than P500,000.00. Thus, the penalty of imprisonment provided in the Labor Code was raised or increased by R.A. No. 8042. Petitioner concludes that the charge and conviction of an offense carrying a penalty higher than that provided by the law at the time of its commission constitutes a violation of the prohibition against ex post facto law and the retroactive application of R.A. No. 8042. In its Comment12 dated 7 September 2007, the Office of the Solicitor General (OSG) argues that the Court of Appeals' conviction of petitioner under the Labor Code is correct. While conceding that there was an erroneous designation of the law violated by petitioner, the OSG stresses that the designation of the offense in the Information is not determinative of the nature and character of the crime charged against her but the acts alleged in the Information. The allegations in the Information clearly charge petitioner with illegal recruitment as defined in Art. 38, in relation to Art. 13(b) of the Labor Code, and penalized under Art. 39(c) of the same Code. The evidence on record substantiates the charge to a moral certainty. Thus, while there was an erroneous specification of the law violated by petitioner in the Information, the CA was correct in affirming the RTC's imposition of the penalty for simple illegal recruitment under the Labor Code, the OSG concludes. The petition is denied. We find no reversible error in the decision arrived at by the Court of Appeals. In Gabriel v. Court of Appeals,13 we held that the real nature of the crime charged is determined, not from the caption or preamble of the information nor from the specification of the law alleged to have been violated these being conclusions of lawbut by the actual recital of facts in the complaint or information. What controls is not the designation but the description of the offense charged. From a legal point of view, and in a very real sense, it is of no concern to the accused what the technical name of the crime of which he stands charged is. If the accused performed the acts alleged in the body of the information, in the manner stated, then he ought to be punished and punished adequately, whatever may be the name of the crime which those acts constitute.14 In the case at bar, the prosecution established beyond reasonable doubt that petitioner had performed the acts constituting the offense defined in Art. 38, in relation to Art. 13(b) and punished by Art. 39 of the Labor Code, as alleged in the body of the Information. To prove illegal recruitment, two elements must be shown, namely: (1) the person charged with the crime must have undertaken recruitment activities, or any of the activities enumerated in Article 34 of the Labor Code, as amended; and (2) said person does not have a license or authority to do so.15 Art. 13(b) defines "recruitment and placement" as "any act of canvassing, enlisting, contracting, transporting, utilizing, hiring, or procuring workers, and includes referrals, contract services, promising, or advertising for employment, locally or abroad, whether for profit or not; Provided that any person or entity which, in any manner, offers or promises for a fee employment to two or more persons, is considered engaged in recruitment and placement." The trial court found these two elements had been proven in the case at bar. Petitioner has not offered any argument or proof that countervails such findings. The basic rule is that a criminal act is punishable under the law in force at the time of its commission. Thus, petitioner can only be charged and found guilty under the Labor Code which was in force in 1993 when the acts attributed to her were committed. Petitioner was charged in 1998 under an Information that erroneously designated the offense as covered by R.A. No. 8042, but alleged in its body acts which are punishable under the Labor Code. As it was proven that petitioner had committed the acts she was charged with, she was properly convicted under the Labor Code, and not under R.A. No. 8042. There is no violation of the prohibition against ex post facto law nor a retroactive application of R.A. No. 8042, as alleged by petitioner. An ex post facto law is one which, among others, aggravates a crime or makes it greater than it was when committed or changes the punishment and inflicts a greater punishment than the law

annexed to the crime when committed.16 Penal laws and laws which, while not penal in nature, nonetheless have provisions defining offenses and prescribing penalties for their violation operate prospectively. Penal laws cannot be given retroactive effect, except when they are favorable to the accused.17 R.A. No. 8042 amended pertinent provisions of the Labor Code and gave a new definition of the crime of illegal recruitment and provided for its higher penalty. There is no indication in R.A. No. 8042 that said law, including the penalties provided therein, would take effect retroactively. A law can never be considered ex post facto as long as it operates prospectively since its strictures would cover only offenses committed after and not before its enactment.18 Neither did the trial court nor the appellate court give R.A. No. 8042 a retroactive application since both courts passed upon petitioner's case only under the aegis of the Labor Code. The proceedings before the trial court and the appellate court did not violate the prohibition against ex post facto law nor involved a retroactive application of R.A. No. 8042 in any way. WHEREFORE, the petition is DENIED. The assailed Decision dated 27 June 2005 and Resolution dated 28 November 2006 of the Court of Appeals are AFFIRMED. SO ORDERED. 17. Rosario Nasi-Villar vs People GR No. 176169 Facts: Petitioner appealed to the Court of Appeals raising as sole issue the alleged error by the trial court in finding her guilty of illegal recruitment on the basis of the trial courts appreciation of the evidence presented by the prosecution. Petitioner alleges that the Court of Appeals erred in failing to consider that R.A. No. 8042 cannot be given retroactive effect and that the decision of the RTC constitutes a violation of the constitutional prohibition against ex post facto law. Since R.A. No. 8042 did not yet exist in January 1993 when the crime was allegedly committed, petitioner argues that law cannot be used as the basis of filing a criminal action for illegal recruitment. What was applicable in 1993 is the Labor Code, where under Art. 38, in relation to Art. 39, the violation of the Code is penalized with imprisonment of not less than four (4) years nor more than eight (8) years or a fine of not less than P20,000.00 and not more than P100,000.00 or both. On the other hand, Sec. 7(c) of R.A. No. 8042 penalizes illegal recruitment with a penalty of imprisonment of not less than six (6) years and one (1) day but not more than twelve (12) years and a fine not less than P200,000.00 nor more than P500,000.00. Thus, the penalty of imprisonment provided in the Labor Code was raised or increased by R.A. No. 8042. Petitioner concludes that the charge and conviction of an offense carrying a penalty higher than that provided by the law at the time of its commission constitutes a violation of the prohibition against ex post facto law and the retroactive application of R.A. No. 8042. Issue: Whether or not the charge and conviction of an offense carrying a penalty higher than that provided by the law at the time of its commission constitutes a violation of the prohibition against ex post facto law and the retroactive application of R.A. No. 8042. Held: No. the prosecution established beyond reasonable doubt that petitioner had performed the acts constituting the offense defined in Art. 38, in relation to Art. 13(b) and punished by Art. 39 of the Labor Code, as alleged in the body of the Information. To prove illegal recruitment, two elements must be shown, namely: (1) the person charged with the crime must have undertaken recruitment activities, or any of the activities enumerated in Article 34 of the Labor Code, as amended; and (2) said person does not have a license or authority to do so. [15] Art. 13(b) defines recruitment and placement as any act of canvassing, enlisting, contracting, transporting, utilizing, hiring, or procuring workers, and includes referrals, contract services, promising, or advertising for employment, locally or abroad, whether for profit or not; Provided that any person or entity which, in any manner, offers or promises for a fee employment to two or more persons, is considered engaged in recruitment

and placement. The trial court found these two elements had been proven in the case at bar. Petitioner has not offered any argument or proof that countervails such findings. The basic rule is that a criminal act is punishable under the law in force at the time of its commission. Thus, petitioner can only be charged and found guilty under the Labor Code which was in force in 1993 when the acts attributed to her were committed. Petitioner was charged in 1998 under an Information that erroneously designated the offense as covered by R.A. No. 8042, but alleged in its body acts which are punishable under the Labor Code. As it was proven that petitioner had committed the acts she was charged with, she was properly convicted under the Labor Code, and not under R.A. No. 8042. There is no violation of the prohibition against ex post facto law nor a retroactive application of R.A. No. 8042, as alleged by petitioner. An ex post facto law is one which, among others, aggravates a crime or makes it greater than it was when committed or changes the punishment and inflicts a greater punishment than the law annexed to the crime when committed. [16] Penal laws and laws which, while not penal in nature, nonetheless have provisions defining offenses and prescribing penalties for their violation operate prospectively. Penal laws cannot be given retroactive effect, except when they are favorable to the accused. [17] R.A. No. 8042 amended pertinent provisions of the Labor Code and gave a new definition of the crime of illegal recruitment and provided for its higher penalty. There is no indication in R.A. No. 8042 that said law, including the penalties provided therein, would take effect retroactively. A law can never be considered ex post facto as long as it operates prospectively since its strictures would cover only offenses committed after and not before its enactment. [18] Neither did the trial court nor the appellate court give R.A. No. 8042 a retroactive application since both courts passed upon petitioners case only under the aegis of the Labor Code. The proceedings before the trial court and the appellate court did not violate the prohibition against ex post facto law nor involved a retroactive application of R.A. No. 8042 in any way.