[G.R. Nos. 107964-66.

February 1, 1999]

THE

PEOPLE of the PHILIPPINES represented by the PANEL OF PROSECUTORS, DEPARTMENT OF

JUSTICE, petitioner, vs. HON. DAVID G. NITAFAN, Presiding Judge, Branch 52, Regional Trial Court of
Manila, and IMELDA R. MARCOS, respondents.
DECISION

MARTINEZ, J.:
On January 9, 1992, three criminal informations for violation of Section 4 of Central Bank Circular No. 960, as
amended,[1] in relation to Section 34 of Republic Act No. 265[2] were filed against private respondent Imelda R. Marcos
before Branch 158 of the Regional Trial Court (RTC) of Pasig (herein Branch 158-Pasig). Said Informations docketed as
Criminal Case Nos. 90384-92, 90385-92 and 90386-92 were amended prior to arraignment.[3]
After arraignment, where private respondent pleaded not guilty, the People thru herein petitioner, Panel of Prosecutors
from the Department of Justice (DOJ) and the Solicitor General filed separate motions for consolidation of the three (3)
Informations pending before Branch 158-Pasig with the 21 other cases pending before RTC Branch 26-Manila (herein
Branch 26-Manila).[4] The Solicitor General alleged in its motion that the indictable acts under the three informations
form part of and is related to the transaction complained of in criminal cases 91-101732, 91-101734 and 91-101735
pending before Branch 26-Manila[5] and that these two groups of cases (the Pasig and Manila cases) relate to a series of
transactions devised by then President Ferdinand Marcos and private respondent to hide their ill-gotten wealth.[6] The
RTC of Pasig granted the motion for consolidation provided there is no objection from the presiding judge of Branch 26Manila.[7] Before the Manila RTC, the three (3) informations were re-raffled and re-assigned instead to Branch 52-Manila
presided by public respondent Judge Nitafan wherein the three informations (Criminal Cases Nos. 90384-92, 90385-92
and 90386-92) were re-numbered as Criminal Case Nos. 92-107942; 92-107943 and 92-107944.
Then, without private respondent yet taking any action or filing any motion to quash the informations, respondent
judge issued an order dated July 20, 1992 requiring petitioners to show cause why criminal case number 92-107942
should not be dismissed on the ground that it violates private respondents right against ex post facto law.[8] In that order,
respondent judge said that a check with official publications reveals that CB Circular 960 is dated 21 October 1983 (x x
x) and that said regulatory issuance was imperfectly published* in the January 30, 1984 issue of the Official
Gazette.[9] Respondent judge concluded that since the date of violation alleged in the information was prior to the date
and complete publication of the Circular charged to have been violated, the information in this case appears peremptorily

dismissible, for to apply the Circular to acts performed prior to its date and publication would make it an ex post
facto law, which is a violation of the Constitution.[10]
On the same day, respondent judge issued another order requiring the prosecution to show cause why the two other
criminal informations (92-107943 and 92-107944) should not be dismissed on the ground that private respondents right
to double jeopardy was violated.[11] It is respondent judges posture that based on the Solicitor-Generals allegations in its
Motion for Consolidation filed in Branch 58-Pasig that the three cases form part of a series of transactions which are
subject of the cases pending before Branch 26-Manila, all these cases constitute one continuous crime. Respondent judge
further stated that to separately prosecute private respondent for a series of transaction would endow it with the
functional ability of a worm multiplication or amoeba reproduction.[12] Thus, accused would be unduly vexed with
multiple jeopardy. In the two orders, respondent judge likewise said that the dismissal of the three seemingly
unmeritorious and duplicitous cases would help unclogged his docket in favor of more serious suits.[13] The prosecution
complied with the twin show cause orders accompanied by a motion to inhibit respondent judge.
On August 6, 1992, respondent judge issued an order denying the motion for consolidation (embodied in the
prosecutions compliance with the show cause orders) of the three informations with those pending before Branch 26Manila on the ground that consolidation of cases under Rule 31 of civil procedure has no counterpart in criminal
procedure, and blamed the panel of prosecutors as apparently not conversant with the procedure in the assignment of
cases. As additional justification, respondent judge stated that since he is more studious and discreet, if not more
systematic and methodical, than the prosecution in the handling of cases, it would be unfair to just pull out the case
when he had already studied it.[14]
The next day, August 7, 1992, respondent judge issued an 8-page order dismissing criminal case no. 92-107942 on
the ground that the subject CB Circular is an ex post facto law.[15] In a separate 17-page order dated August 10, 1992,
respondent judge also dismissed the two remaining criminal cases (92-107943 & 92-107944) ruling that the prosecution
of private respondent was part of a sustained political vendetta by some people in the government aside from what he
considered as a violation of private respondents right against double jeopardy.[16] From his disquisition regarding
continuing, continuous and continued offenses and his discussion of mala prohibita, respondent judge further
ratiocinated his dismissal order in that the pendency of the other cases before Branch 26-Manila had placed private
respondent in double jeopardy because of the three cases before his sala.
The prosecution filed two separate motions for reconsideration which respondent judge denied in a single order dated
September 7, 1992 containing 19 pages wherein he made a preliminary observation that:
(T)he very civil manner in which the motions were framed, which is consistent with the high ideals and standards of
pleadings envisioned in the rules, and for which the panel should be commended. This only shows that the Members of
the panel had not yielded to the derisive, panicky and intimidating reaction manifested by their Department Head when,
after learning the promulgation of the orders dismissing some of Imelda Romualdez-Marcos cases, Secretary Drilon went
to the media and repeatedly aired diatribes and even veiled threats against the trial judges concerned.

By the constitutional mandate that A member of the judiciary must be a person of proven competence, integrity, probity,
and independence (Sec 7[3], Art. VIII, judges are precluded from being dragged into running debates with parties-litigants
or their counsel and representatives in media, yet by reason of the same provision judges are mandated to decide cases in
accordance with their own independent appreciation of the facts and interpretation of the law. Any judge who yields to
extraneous influences, such as denigrating criticisms or threats, and allows his independence to be undermined thereby,
leading to violation of his oath of office, has no right to continue in his office any minute longer.
The published reaction of the Hon. Secretary is to be deplored, but it is hoped that he had merely lapsed into impudence
instead of having intended to set a pattern of mocking and denigrating the courts. He must have forgotten that as
Secretary of Justice, his actuations reflect the rule of law orientation of the administration of the President whom he
represents as the latters alter ego.[17] (emphasis supplied).
The dispositive portion of the order denying the motions for reconsideration provides:
FOR ALL THE FOREGOING CONSIDERATIONS, the Court finds no valid reason to reconsider the dismissals heretofore
decreed, and the motions for reconsideration are consequently denied for manifest lack of merit.[18]
Obviously dissatisfied, petitioners elevated the case via petition for certiorari, where the primary issue raised is
whether a judge can motu proprio initiate the dismissal and subsequently dismissed a criminal information or complaint
without any motion to that effect being filed by the accused based on the alleged violation of the latters right against ex
post facto law and double jeopardy.
Section 1, Rule 117 of the Rules on Criminal Procedure provides:
Time to move to quash. At any time before entering his plea, the accused may move to quash the complaint or
information. (emphasis supplied).
It is clear from the above rule that the accused may file a motion to quash an information at any time before entering a
plea or before arraignment. Thereafter, no motion to quash can be entertained by the court except under the
circumstances mentioned in Section 8 of Rule 117 which adopts the omnibus motion rule. In the case at at bench,
private respondent pleaded to the charges without filing any motion to quash. As such, she is deemed to have waived and
abandoned her right to avail of any legal ground which she may have properly and timely invoke to challenge the
complaint or information pursuant to Section 8 of Rule 117 which provides:
Failure to move to quash or to allege any ground therefore. The failure of the accused to assert any ground of a motion to
quash before he pleads to the complaint or information, either because he did not file a motion to quash or failed to allege
the same in his motion, shall be deemed a waiver of the grounds of a motion to quash, except the grounds of no offense

charged, lack of jurisdiction over the offense charged, extinction of the offense or penalty and jeopardy, as provided for in
paragraphs (a), (b), (f) and (h) of section 3 of this Rule. (emphasis supplied)
It is also clear from Section 1 that the right to file a motion to quash belongs only to the accused. There is nothing in the
rules which authorizes the court or judge to motu proprio initiate a motion to quash if no such motion was filed by the
accused. A motion contemplates an initial action originating from the accused. It is the latter who is in the best position
to know on what ground/s he will based his objection to the information. Otherwise, if the judge initiates the motion to
quash, then he is not only pre-judging the case of the prosecution but also takes side with the accused. This would
violate the right to a hearing before an independent and impartial tribunal. Such independence and impartiality cannot
be expected from a magistrate, such as herein respondent judge, who in his show cause orders, orders dismissing the
charges and order denying the motions for reconsideration stated and even expounded in a lengthy disquisition with
citation of authorities, the grounds and justifications to support his action. Certainly, in compliance with the orders, the
prosecution has no choice but to present arguments contradicting that of respondent judge. Obviously, however, it
cannot be expected from respondent judge to overturn the reasons he relied upon in his different orders without
contradicting himself. To allow a judge to initiate such motion even under the guise of a show cause order would result in
a situation where a magistrate who is supposed to be neutral, in effect, acts as counsel for the accused and judge as
well. A combination of these two personalities in one person is violative of due process which is a fundamental right not
only of the accused but also of the prosecution.
That the initial act to quash an information lodged with the accused is further supported by Sections 2, 3 and 8 of
Rule 117 which states that:
Section 2. The motion to quash shall be in writing signed by the accused or his counsel. It shall specify distinctly the
factual and legal grounds therefor and the Court shall consider no grounds other than those stated therein, except lack of
jurisdiction over the offense charged.
Section 3. Grounds. The accused may move to quash the complaint or information on any of the following grounds:
a)

That the facts charged do not constitute an offense;

b)

That the court trying the case has no jurisdiction over the offense charged or the person of the accused;

c)

That the officer who filed the information had no authority to do so;

d)

That it does not conform substantially to the prescribed form;

e)

That more than one offense is charged except in those cases in which existing laws prescribe a single punishment
for various offenses;

f)

That the criminal action or liability has been extinguished;

g)

That it contains averments which, if true, would constitute a legal excuse or justification; and

h)

That the accused has been previously convicted or in jeopardy of being convicted, or acquitted of the offense
charged.

Section 8. The failure of the accused to assert any ground of a motion to quash before he pleads (Emphasis supplied).
Section 2 requires that the motion must be signed by accused or his counsel; Section 3 states that the accused
may file a motion, and; Section 8 refers to the consequence if the accused do not file such motion. Neither the court nor
the judge was mentioned. Section 2 further, ordains that the court is proscribed from considering any ground other than
those stated in the motion which should be specify(ied) distinctly therein. Thus, the filing of a motion to quash is a right
that belongs to the accused who may waived it by inaction and not an authority for the court to assume.
It is therefore clear that the only grounds which the court may consider in resolving a motion to quash an information
or complaint are (1) those grounds stated in the motion and (2) the ground of lack of jurisdiction over the offense charged,
whether or not mentioned in the motion. Other than that, grounds which have not been sharply pleaded in the motion
cannot be taken cognizance of by the court, even if at the time of filing thereof, it may be properly invoked by the
defendant. Such proscription on considerations of other grounds than those specially pleaded in the motion to quash is
premised on the rationale that the right to these defenses are waivable on the part of the accused, and that by claiming to
wave said right, he is deemed to have desired these matters to be litigated upon in a full-blown trial. Pursuant to the
Rules, the sole exception is lack of jurisdiction over the offense charged which goes into the competence of the court to
hear and pass judgment on the cause.
With these, the rule clearly implies the requirement of filing a motion by the accused even if the ground asserted is
premised on lack of jurisdiction over the offense charged. Besides, lack of jurisdiction should be evident from the face of
the information or complaint to warrant a dismissal thereof. Happily, no jurisdictional challenge is involved in this case.
Assuming arguendo that a judge has the power to motu proprio dismiss a criminal charge, yet contrary to the findings
of respondent judge, the grounds of ex post facto law and double jeopardy herein invoked by him are not applicable.
On ex post facto law, suffice it to say that every law carries with it the presumption of constitutionality until otherwise
declared by this court.[19] To rule that the CB Circular is an ex post facto law is to say that it is unconstitutional. However,
neither private respondent nor the Solicitor-General challenges it. This Court, much more the lower courts, will not pass
upon the constitutionality of a statute or rule nor declare it void unless directly assailed in an appropriate action.
With respect to the ground of double jeopardy invoked by respondent judge, the same is improper and has neither
legal nor factual basis in this case. Double jeopardy connotes the concurrence of three requisites, which are: (a) the first
jeopardy must have attached prior to the second, (b) the first jeopardy must have been validly terminated, and (c) the

second jeopardy must be for the same offense as that in the first[20] or the second offense includes or is necessarily
included in the offense charged in the first information, or is an attempt to commit the same or is a frustration
thereof.[21] In this case, it is manifestly clear that no first jeopardy has yet attached nor any such jeopardy
terminated. Section 7, Rule 117 provides:
When an accused has been convicted or acquitted, or the case against him dismissed or otherwise terminated without his
express consent by a court of competent jurisdiction, upon a valid complaint or information or other formal charge
sufficient in form and substance to sustain a conviction and after the accused had pleaded to the charge, the conviction
or acquittal of the accused or the dismissal of the case shall be a bar to another prosecution for the offense charged, or for
any attempt to commit the same or frustration thereof, or for any offense which necessarily includes or is necessary
included in the offense charged in the former complaint or information.
x x x

xxx

x x x.[22]

Under said Section, the first jeopardy attaches only (1) upon a valid indictment, (2) before a competent court, (3) after
arraignment, (4) when a valid plea has been entered, and (5) when the defendant was convicted or acquitted, or the case
was dismissed or otherwise terminated without the express consent of the accused.[23]
Other than the Solicitor-Generals allegation of pending suits in Branch 26-Manila, respondent judge has no other
basis on whether private respondent had already been arraigned, much less entered a plea in those cases pending before
the said Branch. Even assuming that there was already arraignment and plea with respect to those cases in Branch 26Manila which respondent judge used as basis to quash the three informations pending in his sala, still the first jeopardy
has not yet attached. Precisely, those Branch 26-Manila cases are still pending and there was as yet no judgment on the
merits at the time respondent judge quashed the three informations in his sala. Private respondent was not convicted,
acquitted nor the cases against her in Branch 26-Manila dismissed or otherwise terminated which definitely shows the
absence of the fifth requisite for the first jeopardy to attached. Accordingly, it was wrong to say that the further
prosecution of private respondent under the three informations pending Branch 56-Manila would violate the formers right
against double jeopardy.
WHEREFORE, Premises considered, the petition is GRANTED and the two orders dated January 20, 1990, as well as
the orders dated August 7, 1992, August 10, 1992 and September 7, 1992 all issued by respondent judge are hereby
REVERSED AND SET ASIDE. Let this case be REMANDED to the trial court for further proceedings.
SO ORDERED.
Davide, Jr., C.J., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Purisima, Pardo,
Buena, and Gonzaga-Reyes, JJ., concur.

Section 4, CB Circular No. 960 Foreign exchange retention abroad. No person shall promote, finance enter into or
participate in any foreign exchange transactions where the foreign exchange involved is paid, retained delivered or
transferred abroad while the corresponding pesos are paid for or are received in the Philippines, except when specifically
authorized by the Central Bank or otherwise allowed under central bank regulations.
[1]

Residents, firms, associations, or corporations unless otherwise permitted under CB regulations are prohibited
from maintaining foreign exchange accounts abroad.
Section 32. CB Circular 1028, amended Section 4, CB Circular 960, provides: Prohibition Against Deposit
Abroad of residents. No resident shall open and maintain foreign exchange deposit accounts abroad involving outward
remittance of foreign exchange unless otherwise permitted by law or by central bank regulations. x x x.
Proceedings upon violation of laws and regulations. Whenever any person or entity willfully violates this act or any
order, instruction, rules or regulation issued by the Monetary Board, the person or persons responsible for such violations
shall be punished by a fine of not more than twenty thousand pesos and by imprisonment of not more than five years.
[2]

Annexes E, F and G of the Petition; Rollo, pp. 121-126. The three informations originally filed on January 9, 1992
were amended on February 24, 1992. The amended informations read:
[3]

(Crim. Case No. 90384-92)

That on or about 03 October 1980, and sometime prior or subsequent thereto, the above-named accused, a public
official, a citizen and a resident of the Republic of the Philippines, in violation of Section 4 of Central Bank Circular 960,
as amended, a crime triable by and within the jurisdiction of this Honorable Court, did then and there unlawfully
maintain a foreign account deposit in Banque de Paris Et. Des Pays-Bas, S.A., Suisse with account number 073043P
without prior authority from the Central Bank of the Philippines.
Contrary to Law.
(Crim. Case No. 90385-92)
That on or about June 6, 1991, and sometime prior or subsequent thereto, the above-named accused, a public
officer, a citizen and a resident of the Republic of the Philippines, in violation of Section 4 of Central Bank Circular 960, as
amended, a crime triable by and within the jurisdiction of this Honorable Court, did then and there unlawfully maintain a
foreign account deposit in Swiss Bank Corporation with Account No. 98929-NY in the name of Maler II Foundation,
without prior authority from the Central Bank of the Philippines.
Contrary to Law.
(Crim. Case No. 90386-92)
That on or about June 6, 1991, and sometime prior or subsequent thereto, the above-named accused, a public
official, a citizen and a resident of the Republic of the Philippines, in violation of Section 4 of Central Bank Circular 960,
as amended, a crime triable by and within the jurisdiction of this Honorable Court, did then and there unlawfully
maintain a foreign account deposit in Swiss Bank Corporation with Account No. 254508BT in the name of Maler I
Foundation, without prior authority from the Central Bank of the Philippines.
Contrary to Law.

[4]

Annex H of Petition; Rollo, pp. 132-139.

[5]

Rollo, pp. 134-136.

(Crim. Case No. 91-101732)

That from 1973 up to December 26, 1985, both dates inclusive, and for sometime thereafter, the above-named
accused, in conspiracy with her late husband, then President Ferdinand E. Marcos, while both residing in Malacaang
Palace in the City of Manila, Philippines, and within the jurisdiction of this Honorable Court, did then and the5re wilfully,
unlawfully and feloniously open and maintain foreign exchange accounts abroad, particularly in Banque de Paris et des
Pays-Bas (also known as Banque Paribas) in Geneva, Switzerland, later transferred to another bank known as LOMBARD,
ODIER ET CIE also in Geneva, in the names of several establishments organized by their dummy or attorney-in-fact
identified as Stephane A. Cattaui, among which were accounts 036-517 J, Establishment BULLSEYE; 037-973 R,
Establishment MABARI; 038-150 L, Establishment GLADIATOR; 038-4892, Establishment VOLUBILIS; 32.529 X,
INTERNATIONAL INTELLIGENCE FUND; PRETORIEN created under the name INTELLIGENCE: Establishment
GARDENIA; Establishment GLADIATOR; Establishment CESAR; Establishment ESG; Account Nos. 23-0734 H, 22-98 SC,
23-285; 3652 IN; and 073-043 P in the name of accused who executed a power of attorney in favor of her husband on
September 29, 1980 giving the latter the authority to do anything with respect to her accounts; which accounts were
reduced to five, namely: 036 517 J; 037 973 R; 038 150 L, 038 489 Z, and 036 521 N which were later on transferred to
LOMBARD, ODIER ET CIE for credit to the account COGES 00777 per instruction on May 17, 1984 of the accuseds
husband and attorney-in-fact to their dummy and duly appointed Administrator Stephane Cattaui who also transferred to
said LOMBARD Odier et Cie in order to continue managing for them their hidden accounts, including the investment of
$15 Million in Philippine-issued dollar-dominated treasury notes which was fully paid together with the interests on
December 26, 1985 and which payment was remitted to LOMBARD ODIER ET CIE for the credit of Account COGES
00777 of the accused and her late husband which act of maintaining said foreign exchange accounts abroad was not
permitted under the Central Bank regulations.
CONTRARY TO LAW.
(Crim. Case No. 91-101734)
That from 1968 to June 6, 1991 both date inclusive, the above-named accused, in conspiracy with her late
husband, then President Ferdinand E. Marcos, while both residing in Malacaang Palace in the City of Manila,
Philippines, and within the jurisdiction of this Honorable Court did, then and there wilfully, unlawfully and feloniously
open and maintain foreign exchange account abroad, particularly in Swiss Bank Corporation (SBC) in Geneva,
Switzerland, in the name of Maler Establishment, later transformed into Maler Foundation, which was organized by their
dummies, nominees, fronts, agents or duly appointed administrators among them Jean Louis Sunier who received
instructions from the accused and her husband who signed with their alias JOHN LEWIS in order to maintain two
accounts, one of which is Account No. 98929 NY under Maler II with the balance of SF 16,195,258.00, without prior
permission from the Central Bank of the Philippines, and such act of maintaining foreign account abroad was not
permitted under Central Bank regulations.
CONTRARY TO LAW.

[6]

Motion for Consolidation, p. 6; Rollo, p. 137.

Annex I Order dated July 1, 1992 issued by Hon. Jose Hernandez of RTC Br. 158, Pasig. The dispositive portion of
said Orders reads: WHEREFORE, let this case be consolidated with those pending before Branch 26, Regional Trial
Court of Manila presided by Judge Corona Ibay-Somera, provided she dose not have any objection to the
consolidation. (Rollo, p. 140).
[7]

Order dated July 20, 1992 in criminal case no. 92-107942 issued by Judge Nitafan of RTC Branch 52, Manila; Annex
A of Petition; the dispositive portion of this order reads:
[8]

WHEREFORE, the prosecution in this case is hereby ordered to show cause, within ten (10) days from receipt of a
copy of this order, why the information shall not be dismissed.
This order is made in line with continuing efforts of this Court to unclogged its docket of seemingly unmeritorious
cases so that it can concentrate its attention to more serious and important cases. (Rollo, pp. 66-69).
Respondent judge stated in the order that the Circular was (I)mperfectly published because although the text of
the Circular was included in said issue of the Official Gazette, (pp. 510, et seq.) It was not indicated in the Table of
Contents thereof. (Rollo, p. 67).
[9] Ibid., p. 2; Rollo, p. 67.
[10]

Ibid., p. 3; Rollo, pp. 68-69.

Order dated July 20, 1992 in criminal case nos. 92-107943 and 92-107944 issued by Judge Nitafan of Branch 52Manila; Annex A-1" of Petition; The dispositive portion of this order provides:
[11]

WHEREFORE, the prosecution is hereby ordered to show cause within ten (10) days from receipt of a copy of
this order why the informations in these cases shall not be dismissed. (Rollo, pp. 70-74.)
[12]

Ibid., p. 4; Rollo, p. 73.

[13]

Rollo, pp. 69, 74.

It would be unfair, indeed, to the Presiding judge of this court to just pull out these cases after he had gone over and
studied their substance. Fortunately and/or unfortunately for the prosecution that the presiding judge is more studious
and discreet, if not more systematic and methodical, in the handling of this cases. But such is not a valid ground for
consolidation.
[14]

The fact that the prosecution intended to have these cases to be assigned to a specific branch of this court is of no
moment for as already intimated parties or their counsel must not be allowed to select the judges to try and determine
their cases; otherwise, the raffle procedure and its intent and spirit will be brought to naught. (Order of Judge Nitafan
dated August 6, 1992, p. 3; Rollo, p. 161).
Order dated August 7, 1992 of RTC Branch 52-Manila in Criminal Case No. 92-107942; Annex B of Petition; Rollo,
pp. 75-82. The dispositive portion of that order reads:
[15]

WHEREFORE, for all the foregoing considerations, in addition to the authorities cited in the July 20, 1992 order,
the instant case is clearly dismissible. Therefore, the dismissal of the information is hereby ordered, with costs de oficio,
and the cash bail bond of the accused is ordered refunded to the accused, subject to the usual accounting and auditing
procedures. (Rollo, p. 82).
Order dated August 10, 1992 of RTC Branch 52-Manila in criminal cases no. 92-107943 and 92-107944; Annex C of
Petition, p. 16; Rollo, pp. 83-99. The dispositive portion of that order states:
[16]

WHEREFORE, without prejudice to adding the alleged violations recited in the informations which commenced
theses cases as additional overt acts in the other related cases mentioned by the Office of the solicitor-general in its
oftrepeated motion (if still legally feasible), the above-enetitled cases are hereby dismissed, with costs de oficio, and the
cash bail bonds of the accused is ordered refunded to her, subject to the usual accounting and auditing
procedures. (Rollo, p. 99).
RTC Order dated September 7, 1992 issued by Judge Nitafan in Criminal cases 92-107942, 92-107943 and 92107944, pp. 2-4; Rollo, pp. 102-104.
[17]

[18]

Ibid., pp. 1-19; Rollo, pp. 101-120.

[19]

Padilla v. CA, 269 SCRA 402 cited in Lacson v. Sandiganbayan, G.R. No. 128096, January 20, 1999.

[20]

People v. Leviste, 255 SCRA 238; People v. Tampal, 244 SCRA 202.

[21]

Guerrero v. CA, 257 SCRA 703.

The rest of the Section reads: However, the conviction of the accused shall not be a bar to another prosecution for an
offense which necessarily includes the offense charged in the former complaint or information under any of the following
instances:
[22]

(a) the graver offense developed due to supervening facts arising from the same act or omission constituting the
former charge;
(b) the facts constituting the graver charge became known or were discovered only after the filing of the former
complaint or information; or
(c) the plea of guilty to the lesser offense was made without the consent of the fiscal and of the offended party.
In any of the foregoing cases, where the accused satisfies or serves in whole or in part the judgment, he shall be
credited with the same in the event of conviction for the graver offense. (Revised Rules on Criminal Procedure).
Cudia v. CA, G.R. No. 110315, January 16, 1998; Guerrero v. CA, 257 SCRA 703; People v. Leviste, 255 SCRA 238;
People v. Tampal, 244 SCRA 202.
[23]

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 124171

March 18, 2002

LETICIA R. MERCIALES, petitioner,

vs.
THE HONORABLE COURT OF APPEALS, THE PEOPLE OF THE PHILIPPINES, JOSELITO NUADA, PAT. EDWIN
MORAL, ADONIS NIEVES, ERNESTO LOBETE, DOMIL GRAGEDA, and RAMON "POL" FLORES, respondents.
YNARES-SANTIAGO, J.:
Petitioner seeks the reversal of the Decision of the Court of Appeals1 in CA-G.R. SP No. 37341, denying her petition to
annul the Order of the Regional Trial Court of Legazpi City, Branch 8,2 in Criminal Case Nos. 6307-6312, which dismissed
the charge of rape with homicide based on a demurrer to evidence filed by private respondents, accused therein.
The antecedent facts as succinctly synthesized by the respondent court are as follows:
On August 12, 1993, Criminal Case Nos. 6307, 6308, 6309, 6310, 6311, and 6312, for rape with homicide, in
connection with the death of one Maritess Ricafort Merciales, were filed against the private respondents, Joselito
Nuada, Pat. Edwin Moral, Adonis Nieves, Ernesto Lobete, Domil Grageda and Ramon "Pol" Flores, before the
Regional Trial Court, Fifth Judicial Region, Legaspi City. The said cases were consolidated in Branch 8, presided
over by the respondent judge.
During the trial, after presenting seven witnesses, the public prosecutor filed a motion for the discharge of accused
Joselito Nuada, in order that he may be utilized as a state witness. However, the prosecution contended that it was
not required to present evidence to warrant the discharge of accused Nuada, since the latter had already been
admitted into the Witness Protection Program of the Department of Justice. Consequently, the respondent judge
denied the motion for discharge, for failure of the prosecution to present evidence as provided for by Section 9, Rule
119 of the 1985 Rules on Criminal Procedure.
On December 22, 1993, the prosecution filed a petition3 for certiorari [G.R. No. 113273-78] before the Supreme
Court, questioning the respondent judge's denial of the motion to discharge the accused Nuada. Despite the fact
that the petition did not contain a prayer for a temporary restraining order, the trial judge did not set the case for

further hearing so as to give the prosecution time to secure such temporary restraining order from the Supreme
Court.
On July 13, 1994, herein private respondents filed a motion to set the case for hearing, invoking their constitutional
right to speedy trial. The respondent judge granted the motion, and set the case for hearing on July 29, 1994.
On the said date, the prosecution filed a motion for reconsideration, instead of presenting further evidence. The
respondent Judge postponed the hearing and reset the same for August 9, 1994.
On August 9, 1994, again the prosecution filed a motion for reconsideration, invoking its pending petition for
certiorari with the Supreme Court. The private respondents, thru counsel, objected to any further resetting as this
would constitute a violation of their right to a speedy trial. The respondent judge called for a recess so as to let the
prosecution decide whether or not to present an NBI agent, who was then present, to prove the due execution of the
accused Nuada's extrajudicial confession.
However, after the recess, the public prosecutor declined to present the NBI agent, and instead manifested that he
was not presenting any further evidence. The defense then moved that the cases be deemed submitted for decision,
and asked leave of court to file a demurrer to evidence.
On August 29, 1994, the Solicitor General filed [in G.R. No. 113273-78] a motion for issuance of a writ of
preliminary injunction or temporary restraining order with the Supreme Court, to enjoin the respondent judge from
proceeding with the resolution of the case. However, on September 19, 1994, the motion was denied by the Supreme
Court.
In due time, the accused filed their demurrer to evidence x x x.4
On October 21, 1994, the trial court issued the assailed Order, the dispositive portion of which reads:
For lack of sufficient evidence to prove the guilt of the accused beyond reasonable doubt, all the accused in all these
cases are hereby ACQUITTED and the cases filed against them are hereby DISMISSED. The accused in all these
cases, being detention prisoners, are hereby ordered RELEASED from detention, unless they are being detained for
some other legal cause.
SO ORDERED.5
Petitioner Leticia Merciales, who is the mother of the victim in the said criminal cases, filed before the respondent Court of
Appeals a petition to annul the foregoing Order of the trial court. However, the Court of Appeals dismissed the petition on
October 4, 1995.

A motion for reconsideration was denied on March 6, 1996. Hence, the instant petition based on the ground that:
THE COURT OF APPEALS COMMITTED A REVERSIBLE ERROR WHEN IT REFUSED TO NULLIFY THE ORDER
DATED OCTOBER 21, 1994 OF THE TRIAL COURT FOR BEING NULL AND VOID ON THE GROUND THAT THE
TRIAL JUDGE TOLERATED AND/OR COMMITTED INJUSTICE BY FAILING TO REQUIRE THE PROSECUTION TO
PRESENT ALL THEIR EVIDENCE INSTEAD OF SUPPRESSING THEM APPARENTLY TO FAVOR THE ACCUSED IN
VIOLATION OF THE CONSTITUTIONAL RIGHT OF THE PEOPLE TO DUE PROCESS, OUSTING THE TRIAL COURT
OF ITS JURISDICTION.6
The case was set for oral argument on December 11, 2001. Counsel for petitioner and the Solicitor General appeared.
During the oral argument, the Solicitor General manifested that he was joining the cause of petitioner in order to prevent
a miscarriage of justice. The Court directed the parties to submit their respective memoranda in amplification of the
points raised during the oral argument.
Petitioner maintains that the reopening of the criminal case will not violate the accused's right to double jeopardy. More
particularly, she ascribes prosecutorial and judicial misconduct in the undue haste which attended the prosecution's
premature resting and the trial court's grant of the demurrer to evidence when the presentation of the evidence for the
prosecution has not been completed.
Private respondent Ramon Flores filed his Memorandum, arguing that petitioner, being the private complainant in the
criminal case below, has no legal standing to appeal the acquittal of private respondents; that there was no extrinsic
fraud, abuse of discretion or jurisdictional defect to warrant either a petition for annulment of judgment or certiorari; and
that the reopening of the criminal case will violate the accused's right against double jeopardy.
It is true that a private complainant cannot bring an action questioning a judgment of acquittal, except insofar as the civil
aspect of the criminal case is concerned.7 In the case at bar, we agree with petitioner that this issue was rendered moot
when the Solicitor General, in representation of the People, changed his position and joined the cause of petitioner, thus
fulfilling the requirement that all criminal actions shall be prosecuted under the direction and control of the public
prosecutor.8
In any event, petitioner has an interest in the maintenance of the criminal prosecution, being the mother of the deceased
rape victim. The right of offended parties to appeal an order of the trial court which deprives them of due process has
always been recognized, the only limitation being that they cannot appeal any adverse ruling if to do so would place the
accused in double jeopardy.9
The criminal case below was for rape with homicide. Although the public prosecutor presented seven witnesses, none of
these actually saw the commission of the crime. It was only Joselito Nuada, one of the accused, who came forward and
expressed willingness to turn state witness. His testimony was vital for the prosecution, as it would provide the only

eyewitness account of the accused's complicity in the crime. The trial court required the public prosecutor to present
evidence to justify Nuada's discharge as a state witness, but the latter insisted that there was no need for such proof since
Nuada had already been admitted into the Witness Protection Program of the Department of Justice. The public
prosecutor's obstinate refusal to present the required evidence prompted the trial court to deny the motion to discharge
Nuada.
The prosecution elevated the matter to the Supreme Court on a petition for certiorari. Meanwhile, the accused moved to
set the case for hearing, invoking their constitutional right to speedy trial. The trial court granted the motion. The public
prosecutor moved for a continuance, and the trial court acceded. At the next scheduled hearing, however, the trial court
denied a similar motion by the prosecution in view of the objection of the accused. The trial court directed the public
prosecutor to present Atty. Carlos S. Caabay, the NBI Agent who took Nuada's extrajudicial confession. At the resumption
of the hearing, the public prosecutor declared that he was resting the prosecution's case, knowing fully well that the
evidence he has presented was not sufficient to convict the accused. Consequently, the ensuing demurrer to evidence filed
by the accused was granted by the trial court.
It is clear from the foregoing that the public prosecutor was guilty of serious nonfeasance. It is the duty of the public
prosecutor to bring the criminal proceedings for the punishment of the guilty.10 Concomitant with this is the duty to
pursue the prosecution of a criminal action and to represent the public interest. A crime is an offense against the State,
and hence is prosecuted in the name of the People of the Philippines. For this reason, Section 5 of Rule 110 provides that
"all criminal actions either commenced by complaint or by information shall be prosecuted under the direction and control
of the fiscal x x x." As the representative of the State, the public prosecutor has the right and the duty to take all steps to
protect the rights of the People in the trial of an accused.11 If the public prosecutor commits a nonfeasance in refusing to
perform a specific duty imposed on him by law, he can be compelled by an action for mandamus.12
In the case at bar, the public prosecutor knew that he had not presented sufficient evidence to convict the accused. Yet,
despite repeated moves by the accused for the trial court to continue hearing the case, he deliberately failed to present an
available witness and thereby allowed the court to declare that the prosecution has rested its case. In this sense, he was
remiss in his duty to protect the interest of the offended parties. More specifically, the public prosecutor in this case was
guilty of blatant error and abuse of discretion, thereby causing prejudice to the offended party. Indeed, the family of the
deceased victim, Maritess Merciales, could do nothing during the proceedings, having entrusted the conduct of the case in
the hands of the said prosecutor. All they could do was helplessly watch as the public prosecutor, who was under legal
obligation to pursue the action on their behalf, renege on that obligation and refuse to perform his sworn duty.
Indeed, Rule 119, Section 9 (now Section 17) of the Rules of Court expressly requires the presentation of evidence in
support of the prosecution's prayer for the discharge of an accused to be a state witness, viz:
When two or more persons are jointly charged with the commission of any offense, upon motion of the prosecution
before resting its case, the court may direct one or more of the accused to be discharged with their consent so that

they may be witnesses for the state when after requiring the prosecution to present evidence and the sworn
statement of each proposed state witness at a hearing in support of the discharge, xxx xxx xxx.
By refusing to comply with the trial court's order to present evidence, the public prosecutor grossly violated the abovequoted rule. Moreover, the public prosecutor violated his bounden duty to protect the interest of the offended party, at
least insofar as the criminal aspect is concerned. After the trial court denied his motion to discharge Nuada as a state
witness, he should have proceeded to complete the evidence of the prosecution by other means. Instead, he willfully and
deliberately refused to present an available witness, i.e., the NBI Agent who was present in court on that date and time.
The public prosecutor was duty-bound to exhaust all available proofs to establish the guilt of the accused and bring them
to justice for their offense against the injured party.
Likewise guilty for serious nonfeasance was the trial court. Notwithstanding its knowledge that the evidence for the
prosecution was insufficient to convict, especially after the public prosecutor tenaciously insisted on utilizing Nuada as
state witness, the trial court passively watched as the public prosecutor bungled the case. The trial court was well aware
of the nature of the testimonies of the seven prosecution witnesses that have so far been presented. Given this
circumstance, the trial court, motu proprio, should have called additional witnesses for the purpose of questioning them
himself in order to satisfy his mind with reference to particular facts or issues involved in the case.13
Based on the foregoing, it is evident that petitioner was deprived of her day in court. Indeed, it is not only the State, but
more so the offended party, that is entitled to due process in criminal cases. Inasmuch as the acquittal of the accused by
the court a quo was done without regard to due process of law, the same is null and void. It is as if there was no acquittal
at all, and the same cannot constitute a claim for double jeopardy.14
By contending that the challenged Decision is void for having been issued with grave abuse of discretion amounting
to lack or excess of jurisdiction, the petition does not violate the right of the accused against double jeopardy. It is
elementary that double jeopardy attaches only when the following elements concur: (1) the accused are charged
under a complaint or information sufficient in form and substance to sustain their conviction; (2) the court has
jurisdiction; (3) the accused have been arraigned and have pleaded; and (4) they are convicted or acquitted, or the
case is dismissed without their consent.
Thus, even assuming that a writ of certiorari is granted, the accused would not be placed in double jeopardy
because, from the very beginning, the lower tribunal had acted without jurisdiction. Precisely, any ruling issued
without jurisdiction is, in legal contemplation, necessarily null and void and does not exist.15
Otherwise put, the dismissal of the case below was invalid for lack of a fundamental prerequisite, that is, due process.16 In
rendering the judgment of dismissal, the trial judge in this case acted without or in excess of jurisdiction, for a judgment
which is void for lack of due process is equivalent to excess or lack of jurisdiction.17Indeed, "jurisdiction" is the right to
hear and determine, not to determine without hearing.18

Lack of jurisdiction is one of the grounds for the annulment by the Court of Appeals of judgments or final orders and
resolutions of Regional Trial Courts.19 Hence, the remedy taken by petitioner before the Court of Appeals was correct.
WHEREFORE, in view of the foregoing, the petition is GRANTED. The Decision of the Court of Appeals in CA-G.R. SP No.
37341 is REVERSED AND SET ASIDE. The Order dismissing Criminal Case Nos. 6307-6312 isANNULLED, and this case
is REMANDED to the Regional Trial Court of Legazpi City, Branch 8, for further proceedings. The public prosecutor
is ORDERED to complete the presentation of all available witnesses for the prosecution.
SO ORDERED.
Bellosillo, Puno, Vitug, Kapunan, Panganiban, Quisumbing, Buena, De Leon, Jr., Sandoval-Gutierrez, and Carpio,
JJ., concur.
Davide, Jr., C.J., Melo, and Mendoza, JJ., in the result.

Footnotes
Sixteenth Division, composed of Associate Justices Hector L. Hofilea (ponente), Jainal D. Rasul (Chairman) and
Oswaldo D. Agcaoili.
1

Presided by Judge Salvador D. Silerio.

Docketed as G.R. Nos. 113273-78 (People v. Hon. Salvador D. Silerio, RTC Judge, Branch 8, Legazpi City, et al.).
The petition was dismissed on October 17, 1994, and the motion for reconsideration thereof was denied with finality
on November 21, 1994.
3

Rollo, pp. 44-46.

Ibid., p. 42.

Ibid., p. 19-20.

Palu-ay v. Court of Appeals, et al., 293 SCRA 358, at 361-62 [1998], citing People v. Santiago, et al., 174 SCRA
143 [1989].
7

Revised Rules of Criminal Procedure, Rule 110, Section 5.

Mosquera v. Panganiban, 258 SCRA 473, 478 [1996].

10

Padua v. Judge Molina, A.M. No. MTJ-00-1248; citing U.S. v. Leao. 6 Phil. 368.

11

People v. Arcilla, 256 SCRA 757, 763-764 [1996].

12

People v. Quijada, 259 SCRA 191, 263 [1996]; Concurring and Dissenting Opinion, Regalado, J.,

13

People v. Velasco, 307 SCRA 684, 700 [1999], citing Arce, et al. v. Arce, et al., 106 Phil., 630 [1959].

People v. Surtida, 43 SCRA 29, 38-39 [1972], citing People v. Balisacan, G.R. No. L-26376, August 31, 1966 and
People v. Gomez, G.R. No. L-22345, May 29, 1967.
14

15

People v. Judge Velasco, G.R. No. 127644, September 13, 2000.

16

People v. Navarro, 63 SCRA 264, 273 [1975].

17

Ibid., citing Trimica, Inc. v. Polaris Marketing Corp., et al., G.R. No. L-29887, October 28, 1974.

18

Ibid., citing Windsor v. McVeigh, 93 U.S. 274 , 23 L. Ed. 914, 23A Words and Phrases, p. 121.

19

1997 Rules of Civil Procedure, Rule 47, Section 2.

SECOND DIVISION

[G.R. No. 151931. September 23, 2003]

ANAMER SALAZAR, petitioner, vs. THE PEOPLE OF THE PHILIPPINES and J.Y. BROTHERS MARKETING
CORPORATION, respondents.
DECISION
CALLEJO, SR., J.:
This is a petition for review on certiorari under Rule 45 of the 1997 Rules of Criminal Procedure of the Order[1] of the
Regional Trial Court, 5th Judicial Region, Legazpi City, Branch 5,[2] dated November 19, 2001, and its Order[3] dated
January 14, 2002 denying the motion for reconsideration of the decision of the said court on the civil aspect thereof and
to allow her to present evidence thereon.
On June 11, 1997, an Information for estafa was filed against herein petitioner Anamer D. Salazar and co-accused
Nena Jaucian Timario with the Regional Trial Court of Legazpi City, docketed as Criminal Case No. 7474 which reads as
follows:
That sometime in the month of October, 1996, in the City of Legazpi, Philippines, and within the jurisdiction of this
Honorable Court, the above named-accused, conspiring and confederating with each other, with intent to defraud by
means of false pretenses or fraudulent acts executed simultaneously with the commission of the fraud, did then and there
wilfully, unlawfully and feloniously, on the part of accused NENA JAUCIAN TIMARIO, drew and issue[d] PRUDENTIAL
BANK, LEGASPI CITY BRANCH CHECK NO. 067481, dated October 15, 1996, in the amount of P214,000.00 in favor of
J.Y. BROTHERS MARKETING CORPORATION, represented by its Branch Manager, JERSON O. YAO, and accused
ANAMER D. SALAZAR endorsed and negotiated said check as payment of 300 cavans of rice obtained from J.Y.
BROTHERS MARKETING CORPORATION, knowing fully well that at that time said check was issued and endorsed, Nena
Jaucian Timario did not have sufficient funds in or credit with the drawee bank to cover the amount called for therein and
without informing the payee of such circumstance; that when said check was presented to the drawee bank for payment,
the same was consequently dishonored and refused payment for the reason of ACCOUNT CLOSED; that despite
demands, accused failed and refused and still fail and refuse to pay and/or make arrangement for the payment of the said
check, to the damage and prejudice of said J.Y. BROTHERS MARKETING CORPORATION.
CONTRARY TO LAW.[4]
Upon arraignment, the petitioner, assisted by counsel, entered a plea of not guilty. Trial thereafter ensued.
The Evidence of the Prosecution

On October 15, 1996, petitioner Anamer Salazar purchased 300 cavans of rice from J.Y. Brothers Marketing
Corporation, through Mr. Jerson Yao. As payment for these cavansof rice, the petitioner gave the private complainant
Check No. 067481 drawn against the Prudential Bank, Legazpi City Branch, dated October 15, 1996, by one Nena
Jaucian Timario in the amount of P214,000. Jerson Yao accepted the check upon the petitioners assurance that it was a
good check. The cavans of rice were picked up the next day by the petitioner. Upon presentment, the check was
dishonored because it was drawn under a closed account (Account Closed). The petitioner was informed of such
dishonor. She replaced the Prudential Bank check with Check No. 365704 drawn against the Solid Bank, Legazpi
Branch, which, however, was returned with the word DAUD (Drawn Against Uncollected Deposit).
After the prosecution rested its case, the petitioner filed a Demurrer to Evidence with Leave of Court[5] alleging that she
could not be guilty of the crime as charged for the following reasons: (a) she was merely an indorser of the check issued by
Nena Timario, and Article 315, paragraph 2(d) on estafa penalizes only the issuer of the check and not the indorser
thereof; (b) there is no sufficient evidence to prove that the petitioner conspired with the issuer of the check, Nena Jaucian
Timario, in order to defraud the private complainant; (c) after the first check was dishonored, the petitioner replaced it
with a second one. The first transaction had therefore been effectively novated by the issuance of the second
check. Unfortunately, her personal check was dishonored not for insufficiency of funds, but for DAUD, which in
banking parlance means drawn against uncollected deposit. According to the petitioner, this means that the account
had sufficient funds but was still restricted because the deposit, usually a check, had not yet been cleared.
The prosecution filed its comment/opposition to the petitioners demurrer to evidence.
On November 19, 2001, the trial court rendered judgment acquitting the petitioner of the crime charged but ordering
her to remit to the private complainant the amount of the check as payment for her purchase. The trial court ruled that
the evidence for the prosecution did not establish the existence of conspiracy beyond reasonable doubt between the
petitioner and the issuer of the check, her co-accused Nena Jaucian Timario, for the purpose of defrauding the private
complainant. In fact, the private complainant, Jerson Yao, admitted that he had never met Nena Jaucian Timario who
remained at large. As a mere indorser of the check, the petitioners breach of the warranty that the check was a good one
is not synonymous with the fraudulent act of falsely pretending to possess credit under Article 315(2)(d). The decretal
portion of the trial courts judgment reads as follows:
WHEREFORE, premises considered, the accused Anamer D. Salazar is hereby ACQUITTED of the crime charged but is
hereby held liable for the value of the 300 bags of rice. Accused Anamer D. Salazar is therefore ordered to pay J.Y.
Brothers Marketing Corporation the sum of P214,000.00. Costs against the accused.[6]
Within the reglementary period therefor, the petitioner filed a motion for reconsideration on the civil aspect of the
decision with a plea that he be allowed to present evidence pursuant to Rule 33 of the Rules of Court. On January 14,
2002, the court issued an order denying the motion.
In her petition at bar, the petitioner assails the orders of the trial court claiming that after her demurrer to evidence
was granted by the trial court, she was denied due process as she was not given the opportunity to adduce evidence to

prove that she was not civilly liable to the private respondent. The petitioner invokes the applicability of Rule 33 of the
Rules of Civil Procedure in this case, contending that before being adjudged liable to the private offended party, she
should have been first accorded the procedural relief granted in Rule 33.
The Petition Is Meritorious
According to Section 1, Rule 111 of the Revised Rules of Criminal Procedure
SECTION 1. Institution of criminal and civil actions. (a) When a criminal action is instituted, the civil action for the
recovery of civil liability arising from the offense charged shall be deemed instituted with the criminal action unless the
offended party waives the civil action, reserves the right to institute it separately or institutes the civil action prior to the
criminal action.
The reservation of the right to institute separately the civil action shall be made before the prosecution starts presenting
its evidence and under circumstances affording the offended party a reasonable opportunity to make such reservation.
When the offended party seeks to enforce civil liability against the accused by way of moral, nominal, temperate, or
exemplary damages without specifying the amount thereof in the complaint or information, the filing fees therefor shall
constitute a first lien on the judgment awarding such damages.
Where the amount of damages, other than actual, is specified in the complaint or information, the corresponding filing
fees shall be paid by the offended party upon the filing thereof in court.
Except as otherwise provided in these Rules, no filing fees shall be required for actual damages.
No counterclaim, cross-claim or third-party complaint may be filed by the accused in the criminal case, but any cause of
action which could have been the subject thereof may be litigated in a separate civil action.
(b)
The criminal action for violation of Batas Pambansa Blg. 22 shall be deemed to include the corresponding civil
action. No reservation to file such civil action separately shall be allowed.
Upon filing of the aforesaid joint criminal and civil actions, the offended party shall pay in full the filing fees based on the
amount of the check involved, which shall be considered as the actual damages claimed. Where the complaint or
information also seeks to recover liquidated, moral, nominal, temperate or exemplary damages, the offended party shall
pay additional filing fees based on the amounts alleged therein. If the amounts are not so alleged but any of these

damages are subsequently awarded by the court, the filing fees based on the amount awarded shall constitute a first lien
on the judgment.
Where the civil action has been filed separately and trial thereof has not yet commenced, it may be consolidated with the
criminal action upon application with the court trying the latter case. If the application is granted, the trial of both
actions shall proceed in accordance with section 2 of this Rule governing consolidation of the civil and criminal actions.
The last paragraph of Section 2 of the said rule provides that the extinction of the penal action does not carry with it the
extinction of the civil action. Moreover, the civil action based on delict shall be deemed extinguished if there is a finding in
a final judgment in the criminal action that the act or omission from which the civil liability may arise did not exist.[7]
The criminal action has a dual purpose, namely, the punishment of the offender and indemnity to the offended
party. The dominant and primordial objective of the criminal action is the punishment of the offender. The civil action is
merely incidental to and consequent to the conviction of the accused. The reason for this is that criminal actions are
primarily intended to vindicate an outrage against the sovereignty of the state and to impose the appropriate penalty for
the vindication of the disturbance to the social order caused by the offender. On the other hand, the action between the
private complainant and the accused is intended solely to indemnify the former.[8]
Unless the offended party waives the civil action or reserves the right to institute it separately or institutes the civil
action prior to the criminal action, there are two actions involved in a criminal case. The first is the criminal action for the
punishment of the offender. The parties are the People of the Philippines as the plaintiff and the accused. In a criminal
action, the private complainant is merely a witness for the State on the criminal aspect of the action. The second is the
civil action arising from the delict. The private complainant is the plaintiff and the accused is the defendant. There is a
merger of the trial of the two cases to avoid multiplicity of suits.
The quantum of evidence on the criminal aspect of the case is proof beyond reasonable doubt, while in the civil aspect
of the action, the quantum of evidence is preponderance of evidence.[9] Under Section 3, Rule 1 of the 1997 Rules of
Criminal Procedure, the said rules shall govern the procedure to be observed in action, civil or criminal.
The prosecution presents its evidence not only to prove the guilt of the accused beyond reasonable doubt but also to
prove the civil liability of the accused to the offended party. After the prosecution has rested its case, the accused shall
adduce its evidence not only on the criminal but also on the civil aspect of the case. At the conclusion of the trial, the
court should render judgment not only on the criminal aspect of the case but also on the civil aspect thereof:
SEC. 2. Contents of the judgment. If the judgment is of conviction, it shall state (1) the legal qualification of the offense
constituted by the acts committed by the accused and the aggravating or mitigating circumstances which attended its
commission; (2) the participation of the accused in the offense, whether as principal, accomplice, or accessory after the
fact; (3) the penalty imposed upon the accused; and (4) the civil liability or damages caused by his wrongful act or omission
to be recovered from the accused by the offended party, if there is any, unless the enforcement of the civil liability by a
separate civil action has been reserved or waived.

In case the judgment is of acquittal, it shall state whether the evidence of the prosecution absolutely failed to prove the
guilt of the accused or merely failed to prove his guilt beyond reasonable doubt. In either case, the judgment shall
determine if the act or omission from which the civil liability might arise did not exist.[10]
The acquittal of the accused does not prevent a judgment against him on the civil aspect of the case where (a) the
acquittal is based on reasonable doubt as only preponderance of evidence is required; (b) where the court declared that
the liability of the accused is only civil; (c) where the civil liability of the accused does not arise from or is not based upon
the crime of which the accused was acquitted. Moreover, the civil action based on the delict is extinguished if there is a
finding in the final judgment in the criminal action that the act or omission from which the civil liability may arise did not
exist or where the accused did not commit the acts or omission imputed to him.
If the accused is acquitted on reasonable doubt but the court renders judgment on the civil aspect of the criminal
case, the prosecution cannot appeal from the judgment of acquittal as it would place the accused in double
jeopardy. However, the aggrieved party, the offended party or the accused or both may appeal from the judgment on the
civil aspect of the case within the period therefor.
After the prosecution has rested its case, the accused has the option either to (a) file a demurrer to evidence with or
without leave of court under Section 23, Rule 119 of the Revised Rules of Criminal Procedure, or to (b) adduce his
evidence unless he waives the same. The aforecited rule reads:
Sec. 23. Demurrer to evidence. After the prosecution rests its case, the court may dismiss the action on the ground of
insufficiency of evidence (1) on its own initiative after giving the prosecution the opportunity to be heard or (2) upon
demurrer to evidence filed by the accused with or without leave of court.
If the court denies the demurrer to evidence filed with leave of court, the accused may adduce evidence in his
defense. When the demurrer to evidence is filed without leave of court, the accused waives his right to present evidence
and submits the case for judgment on the basis of the evidence for the prosecution.
The motion for leave of court to file demurrer to evidence shall specifically state its grounds and shall be filed within a
non-extendible period of five (5) days after the prosecution rests its case. The prosecution may oppose the motion within a
non-extendible period of five (5) days from its receipt.
If leave of court is granted, the accused shall file the demurrer to evidence within a non-extendible period of ten (10) days
from notice. The prosecution may oppose the demurrer to evidence within a similar period from its receipt.
The order denying the motion for leave of court to file demurrer to evidence or the demurrer itself shall not be reviewable
by appeal or by certiorari before the judgment.

In criminal cases, the demurrer to evidence partakes of the nature of a motion to dismiss the case for failure of the
prosecution to prove his guilt beyond reasonable doubt. In a case where the accused files a demurrer to evidence without
leave of court, he thereby waives his right to present evidence and submits the case for decision on the basis of the
evidence of the prosecution. On the other hand, if the accused is granted leave to file a demurrer to evidence, he has the
right to adduce evidence not only on the criminal aspect but also on the civil aspect of the case if his demurrer is denied
by the court.
If demurrer is granted and the accused is acquitted by the court, the accused has the right to adduce evidence on the
civil aspect of the case unless the court also declares that the act or omission from which the civil liability may arise did
not exist. If the trial court issues an order or renders judgment not only granting the demurrer to evidence of the accused
and acquitting him but also on the civil liability of the accused to the private offended party, said judgment on the civil
aspect of the case would be a nullity for the reason that the constitutional right of the accused to due process is thereby
violated. As we held in Alonte v. Savellano, Jr.:[11]
Section 14, paragraphs (1) and (2), of Article III, of the Constitution provides the fundamentals.
(1)

No person shall be held to answer for a criminal offense without due process of law.

(2)
In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and shall
enjoy the right to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him,
to have a speedy, impartial, and public trial, to meet the witnesses face to face, and to have compulsory process to secure
the attendance of witnesses and the production of evidence in his behalf. However, after arraignment, trial may proceed
notwithstanding the absence of the accused provided that he has been duly notified and his failure to appear is
unjustifiable.
Jurisprudence acknowledges that due process in criminal proceedings, in particular, require (a) that the court or tribunal
trying the case is properly clothed with judicial power to hear and determine the matter before it; (b) that jurisdiction is
lawfully acquired by it over the person of the accused; (c) that the accused is given an opportunity to be heard; and (d)
that judgment is rendered only upon lawful hearing.
The above constitutional and jurisprudentially postulates, by now elementary and deeply imbedded in our own criminal
justice system, are mandatory and indispensable. The principles find universal acceptance and are tersely expressed in
the oft-quoted statement that procedural due process cannot possibly be met without a law which hears before it
condemns, which proceeds upon inquiry and renders judgment only after trial.[12]
This is so because when the accused files a demurrer to evidence, the accused has not yet adduced evidence both on
the criminal and civil aspects of the case. The only evidence on record is the evidence for the prosecution. What the trial
court should do is to issue an order or partial judgment granting the demurrer to evidence and acquitting the accused;

and set the case for continuation of trial for the petitioner to adduce evidence on the civil aspect of the case, and for the
private complainant to adduce evidence by way of rebuttal after which the parties may adduce their sur-rebuttal evidence
as provided for in Section 11, Rule 119 of the Revised Rules of Criminal Procedure:
Sec. 11. Order of trial. The trial shall proceed in the following order:
(a)

The prosecution shall present evidence to prove the charge and, in the proper case, the civil liability.

(b)
The accused may present evidence to prove his defense and damages, if any, arising from the issuance of a
provisional remedy in the case.
(c)
The prosecution and the defense may, in that order, present rebuttal and sur-rebuttal evidence unless the court, in
furtherance of justice, permits them to present additional evidence bearing upon the main issue.
(d)
Upon admission of the evidence of the parties, the case shall be deemed submitted for decision unless the court
directs them to argue orally or to submit written memoranda.
(e)
When the accused admits the act or omission charged in the complaint or information but interposes a lawful
defense, the order of trial may be modified.
Thereafter, the court shall render judgment on the civil aspect of the case on the basis of the evidence of the
prosecution and the accused.
In this case, the petitioner was charged with estafa under Article 315, paragraph 2(d) of the Revised Penal Code. The
civil action arising from the delict was impliedly instituted since there was no waiver by the private offended party of the
civil liability nor a reservation of the civil action. Neither did he file a civil action before the institution of the criminal
action.
The petitioner was granted leave of court to file a demurrer to evidence. The court issued an order granting the
demurrer on its finding that the liability of the petitioner was not criminal but only civil. However, the court rendered
judgment on the civil aspect of the case and ordered the petitioner to pay for her purchases from the private complainant
even before the petitioner could adduce evidence thereon. Patently, therefore, the petitioner was denied her right to due
process.
IN LIGHT OF ALL THE FOREGOING, the Petition is GRANTED. The Orders dated November 19, 2001 and January
14, 2002 are SET ASIDE AND NULLIFIED. The Regional Trial Court of Legazpi City, Branch 5, is hereby DIRECTED to set
Criminal Case No. 7474 for the continuation of trial for the reception of the evidence-in-chief of the petitioner on the civil
aspect of the case and for the rebuttal evidence of the private complainant and the sur-rebuttal evidence of the parties if
they opt to adduce any.

SO ORDERED.
Bellosillo, (Chairman), Quisumbing, Austria-Martinez, and Tinga, JJ., concur.

[1]

Annex A, Rollo, pp. 24-25.

[2]

Penned by Judge Vladimir B. Brusola.

[3]

Annex C, Rollo, p. 29.

[4]

Rollo, p. 30.

[5]

Annex E, id. at 32.

[6]

Id. at 14.

[7]

Sec. 2, Rule 111.

[8]

Herrera, Remedial Law, Vol. IV, 2001 ed., p. 160.

[9]

Section 1, Revised Rules of Evidence.

[10]

Section 2, Rule 120 of the Revised Rules of Criminal Procedure. (Emphasis supplied).

[11]

287 SCRA 245 (1998).

[12]

Id. at 261.

Republic of the Philippines

Supreme Court
Manila
THIRD DIVISION

STEPHEN SY y TIBAGONG,
Petitioner,

G.R. No. 182178

Present:

versus -

CARPIO,* J.,
VELASCO, JR., J., Chairperson,
BRION,**
PERALTA, and
SERENO,*** JJ.
Promulgated:

PEOPLE OF THE PHILIPPINES,

Respondent.

August 15, 2011

x--------------------------------------------------------------------------------------x
DECISION
PERALTA, J.:
This is a petition for review on certiorari seeking to reverse and set aside the Decision[1] dated October 24, 2007 of
the Court of Appeals (CA) in CA-G.R. CR No. 00402, which in turn affirmed in toto the Decision of the Regional Trial Court
(RTC), Branch 30, Dumaguete City, in Criminal Case No. 17614 convicting petitioner of violation of Section 11, Article II of
Republic Act (RA) No. 9165, or the Comprehensive Dangerous Drugs Act of 2002, as well as the Resolution[2] dated March
7, 2008, denying petitioners motion for reconsideration.
The factual and procedural antecedents are as follows:
Under an Information dated June 12, 2005, petitioner Stephen T. Sy was indicted for violation of Section 11, Article
II of RA No. 9165, the accusatory portion of which reads:

That on or about the 11th day of June 2005, in the City of Dumaguete, Philippines and within the
jurisdiction of this Honorable Court, the said [petitioner], not being authorized by law, did, then and there
willfully, unlawfully and feloniously possess and keep one (1) heat-sealed transparent plastic sachet
containing 0.02 gram of white crystalline substance of Methamphetamine Hydrochloride, commonly known as
shabu, a dangerous drug.
Contrary to Section 11, Article II of R.A. 9165.[3]

Upon

his

arraignment,

petitioner,

with

the

assistance

of

counsel,

pleaded

not

guilty

to

the

crime

charged. Consequently, trial on the merits ensued.

To establish its case, on the one hand, the prosecution presented Police Senior Inspector Maria Ana RiveraDagasdas, Police Officer (PO) 3 Liberato Faelogo, PO3 Dario Paquera, Barangay Kagawad Rogelio Talavera, PO2 Glenn M.
Corsame, and Reysan Elloren.
On the other hand, the defense presented the petitioner as its sole witness.
Evidence for the Prosecution
PO3 Faelogo, a member of the PNP and assigned as Intelligence Operative of the Dumaguete City Police
Station, testified that at about 2 oclock in the afternoon of June 11, 2005, while he was on duty, their office
received a telephone call from a concerned citizen that an illegal drug trade was going on at Zone 3, Barangay
Looc, Dumaguete City. With him at that time was PO3 Paquera. PO3 Faelogo averred that the two (2) of them
immediately responded and went to the place as reported. While walking at the pathway going to the interior
portion of Zone 3, Barangay Looc, at a distance of about two (2) meters away, they saw a man, later identified
as the [petitioner] in this case, examining a transparent plastic sachet containing shabu powder by flicking
the same. They approached the [petitioner], introduced themselves as policemen and announced his arrest for
illegal possession of dangerous drug. PO3 Faelogo then apprised the [petitioner] of his constitutional rights
but while doing so, the [petitioner] hurriedly boarded on his motorcycle for a possible escape. PO3 Faelogo
was not able to finish his recital of the constitutional rights of the [petitioner]. PO3 Faelogo had to wrestle
with the [petitioner] who dropped the sachet of shabu on the ground. While PO3 Faelogo and the [petitioner]

were wrestling, PO3 Paquera picked up the said sachet of shabu. After a few minutes of struggle, they were
able to subdue the [petitioner] and handcuff him. PO3 Faelogo continued to inform the [petitioner] of his
constitutional rights in the Cebuano dialect. The [petitioner] was searched and found in his possession was a
disposable lighter. PO3 Paquera gave the plastic sachet of shabu to PO3 Faelogo who made markings on it
with the initials SS 06-11-05 with SS to mean the name of the [petitioner] Stephen Sy and the numbers, the
date of the incident. They then brought the [petitioner] with the seized items to the police station. They were
not able to conduct an inventory in the crime scene, as there was a commotion where some people tried to
rescue the [petitioner]. For their safety, they left the area.
At the police station, PO3 Paquera took a photograph of the [petitioner] and the seized items. PO3
Faelogo then conducted an inventory of the recovered sachet of shabu including the disposable lighter in the
presence of DOJ Representative Pros. Angelita Alcoran, Brgy. Kagawad Rogelio Talavera of Barangay Looc,
the elected official representative, Reysan Elloren, the media representative and PO2 Glenn Corsame of the
PDEA, who all signed the receipt of property seized. The [petitioner] was given a copy of the receipt. PO2
Corsame had the incident recorded in the PDEA blotter.
PO3 Faelogo also averred that he was the one who submitted the seized one (1) heat-sealed transparent
plastic sachet containing white crystalline pow[d]er/granules to the PNP Crime Laboratory, together with a
letter request dated June 11, 2005 of the Chief of Police of Dumaguete City Police Station. The [petitioner]
was not subjected to drug examination, as no drug testing kit was available at that time.
It was Police Senior Inspector Maria Ana Rivera-Dagasdas, forensic chemical officer of the Negros
Oriental Provincial Crime Laboratory who received the seized one (1) heat-sealed transparent plastic sachet
with marking SS-06-11-05 and conducted a laboratory examination on the contents thereof. She re-marked
the sachet as Specimen A which had a weight of 0.02 gram. Her qualitative examination conducted on the
specimen gave positive result to the tests for the presence of methamphetamine hydrochloride, a dangerous
drug under RA 9165. Her conclusion was that Specimen A contained methamphetamine hydrochloride, a
dangerous drug under RA 9165. Her examination results were embodied in a Chemistry Report No. D-103-05
and a certification, which she signed and submitted.
In support of the case filed, PO3 Faelogo and PO3 Paquera executed a joint affidavit of arrest, which
they identified in Court.[4]
Evidence for the Defense
The [petitioner] claimed that on June 11, 2005 at around 2 oclock in the afternoon, he was in Barangay
Looc to book a masseur to massage him in the evening. As he was not able to find the person to massage

him, the [petitioner] started to go home. While he was about to board his motorcycle, one of two (2) men,
whom he had seen earlier from a distance, immediately handcuffed him in his left wrist. The [petitioner] was
not given a warning and he was surprised why he was handcuffed especially since he had not committed any
crime. Fearing for his life, the [petitioner] resisted and told the person who handcuffed him, What am I
charged of? The [petitioner] was told to just keep quiet. The [petitioner] told the person to search him first
before he should handcuff him. The [petitioner] continued to resist the person and they wrestled with each
other. Noticing that this person had a gun tucked in his waist, the [petitioner] did not resist anymore. The
[petitioner] was frisked in his pockets, in his cap and other parts of his body, including his brief wherein the
person inserted his hand inside. The pants of the [petitioner] were also removed. The search was conducted
in full view of many onlookers, but still nothing was found on the [petitioner]. One of the persons then picked
up something, which the [petitioner] could not see and was told that it was shabu and a lighter. The
[petitioner] was then brought to the Dumaguete City Police Station. The [petitioner] later learned at the police
station the identity of the persons who arrested him, namely, Liberato Faelogo and Dario Paquera. At the
police station, a photograph was taken of the [petitioner]. The [petitioner] then requested that he be subjected
to drug examination, but was not tested. The [petitioner] kept on requesting for drug examination for a week
but still he was not tested. The [petitioner] also claimed that while he was at the police station and being
investigated, he was kicked and punched by no less than the Chief of Police, one named Hidalgo. The
[petitioner] tried to protest but was not able to do anything, as nobody was around to help him.[5]

On May 12, 2006, the RTC, after finding that the prosecution has established all the elements of the offense
charged, rendered a Decision[6] convicting petitioner of violation of Section 11, Article II of RA No. 9165, the dispositive
portion of which reads:
WHEREFORE, the Court hereby renders judgment finding the accused Stephen Sy y Tibagong GUILTY
beyond reasonable doubt of the offense of illegal possession of 0.02 gram of Methamphetamine Hydrochloride
or shabu in violation of Section 11, Article II of R.A. No. 9165 and is hereby sentenced to suffer an
indeterminate penalty of twelve (12) years and (1) day, as minimum, term to fourteen (14) years, as maximum
term, and to pay a fine of Three Hundred Thousand Pesos (P300,000.00).
The seized one (1) heat-sealed transparent plastic sachet containing 0.02 gram of white crystalline
substance of Methamphetamine Hydrochloride or shabu is hereby confiscated and forfeited in favor of the
government and to be disposed of in accordance with law.
SO ORDERED.[7]

Aggrieved, petitioner appealed the Decision before the CA, which was later docketed as CA-G.R. CR No. 00402.
On October 24, 2007, the CA rendered a Decision affirming in toto the decision of the RTC, the dispositive portion of
which reads:
WHEREFORE, in view of the foregoing, the appeal is hereby DISMISSED and the assailed decision of
the lower court finding accused-appellant guilty beyond reasonable doubt for violation of Section 11, Article II
of Republic Act No. 9165 is hereby AFFIRMED in toto.
SO ORDERED.[8]

Petitioner filed a motion for reconsideration, but was denied in the Resolution dated March 7, 2008.
Hence, the petition raising the following errors:
I
THE HONORABLE COURT OF APPEALS ERRED IN HOLDING THAT THE POLICE OFFICERS ENJOYED THE
PRESUMPTION OF REGULARITY IN THE PERFORMANCE OF THEIR DUTY.
II
THE HONORABLE COURT OF APPEALS ERRED IN HOLDING THAT PETITIONERS WARRANTLESS ARREST
WAS VALID.
III
THE HONORABLE COURT OF APPEALS ERRED IN HOLDING THAT THE RIGHT OF THE PETITIONER
AGAINST UNLAWFUL SEARCHES AND SEIZURES WAS NOT VIOLATED.
IV
THE HONORABLE COURT OF APPEALS ERRED IN HOLDING THE CONVICTION OF THE PETITIONER
BASED ON THE TRANSPARENT PLASTIC SACHET CONSIDERING THAT THE SAME WAS THE FRUIT OF A
POISONOUS TREE AND COULD NOT BE USED FOR ANY PURPOSE IN ANY PROCEEDING.

V
THE HONORABLE COURT OF APPEALS ERRED IN HOLDING THAT BECAUSE PETITIONER SUBMITTED TO
THE JURISDICTION OF THE LOWER COURT, THAT HE ALSO WAIVED HIS RIGHT TO OBJECT TO THE
ADMISSION OF THE PLASTIC SACHET IN EVIDENCE.[9]

Simply stated, petitioner contends that since he was not doing anything illegal at the time of his arrest that would
arouse the suspicion of the arresting officers, his subsequent arrest and the ensuing search upon his person was illegal
and, therefore, any alleged illegal drugs recovered from him cannot be used in trial against him, without the risk of
violating his constitutional right against unlawful searches and seizure.
Petitioner posits that the arresting officers lacked probable cause when they arrested him. He argues that the act of
flicking a clear plastic sachet in broad daylight cannot be perceived as an illegal act. Thus, he was not caught in flagrante
delicto and the resulting warrantless arrest made by the police officers was invalid. Moreover, the confiscated sachet is not
admissible in evidence against him being the fruit of the poisonous tree.
The petition is without merit.
It has been consistently ruled that an accused is estopped from assailing any irregularity of his arrest if he fails to
raise this issue or to move for the quashal of the information against him on this ground before arraignment. Any
objection involving a warrant of arrest or the procedure by which the court acquired jurisdiction over the person of the
accused must be made before he enters his plea; otherwise, the objection is deemed waived.[10]
In the case at bar, petitioner never objected to the irregularity of his arrest before his arraignment. Moreover, he
actively participated in the proceedings before the RTC. Thus, he is deemed to have waived any perceived defect in his
arrest and effectively submitted himself to the jurisdiction of the court trying his case. At any rate, the illegal arrest of an

accused is not sufficient cause for setting aside a valid judgment rendered upon a sufficient complaint after a trial free
from error. It will not even negate the validity of the conviction of the accused.[11]
As to the admissibility of the seized drug in evidence, it is necessary for us to ascertain whether or not the search
which yielded the alleged contraband was lawful.[12]
Section 5, Rule 113 of the Rules of Court provides:
Sec 5. Arrest without warrant, when lawful - A peace officer or a private person may, without a warrant,
arrest a person:
(a) When, in his presence, the person to be arrested has committed, is actually
committing or is attempting to commit an offense;
(b) When an offense has just been committed and he has probable cause to believe based
on personal knowledge of facts or circumstances that the person to be arrested has committed it;
and
(c) When the person to be arrested is a prisoner who has escaped from a penal
establishment or place where he is serving final judgment or is temporarily confined while his
case is pending, or has escaped while being transferred from one confinement to another.
Corolarilly, the 1987 Constitution states that a search and consequent seizure must be carried out with a judicial
warrant; otherwise, it becomes unreasonable and any evidence obtained therefrom shall be inadmissible for any purpose
in any proceeding.[13] Said proscription, however, admits of exceptions, namely:
1.
2.
3.
4.
5.
6.

Warrantless search incidental to a lawful arrest;

Search of evidence in "plain view;"
Search of a moving vehicle;
Consented warrantless search;
Customs search;
Stop and Frisk; and

7. Exigent and emergency circumstances.[14]

What constitutes a reasonable or unreasonable warrantless search or seizure is purely a judicial question,
determinable from the uniqueness of the circumstances involved, including the purpose of the search or seizure, the
presence or absence of probable cause, the manner in which the search and seizure was made, the place or thing
searched, and the character of the articles procured.[15]
In searches incident to a lawful arrest, the arrest must precede the search; generally, the process cannot be
reversed. Nevertheless, a search substantially contemporaneous with an arrest can precede the arrest if the police have
probable cause to make the arrest at the outset of the search. Although probable cause eludes exact and concrete
definition, it ordinarily signifies a reasonable ground of suspicion supported by circumstances sufficiently strong in
themselves to warrant a cautious man to believe that the person accused is guilty of the offense with which he is
charged.[16]
In the case at bar, the established facts reveal that on June 11, 2005, PO3 Faelogo, an Intelligence Operative of the
Dumaguete City Police Station, received information from a concerned citizen that an illegal drug trade was going on
at Zone 3, Barangay Looc, Dumaguete City. Together with PO3 Paquera, PO3 Faelogo immediately acted on the
information and went to the place. While traversing the pathway going to the interior portion of Zone 3, Barangay Looc,
they saw petitioner, at a distance of two (2) meters, examining and flicking a transparent plastic sachet containing shabu
powder. The two then approached petitioner, introduced themselves as police officers, and announced the he is being
arrested for illegal possession of dangerous drugs. While being informed of his constitutional rights during the arrest,
petitioner tried to escape by boarding his motorcycle. While wrestling with PO3 Faelogo, petitioner dropped the sachet of
shabu on the ground, which was picked up by PO3 Paquera. The police officers eventually were able to subdue and
handcuff petitioner. Upon searching his person, they also found in his possession a disposable lighter. The seized sachet
was marked on location. They then brought petitioner, together with the items seized, to the police station and conducted
a proper inventory thereof. The heat-sealed transparent sachet containing white crystalline substance was submitted to

the PNP Crime Laboratory for drug examination, which later yielded positive results for the presence of methamphetamine
hydrochloride, a dangerous drug under RA No. 9165.
From the foregoing, sufficient evidence supports that the warrantless arrest of petitioner was effected under Section
5 (a), or the arrest of a suspect in flagrante delicto. The police officers witnessed petitioner flicking a transparent plastic
sachet containing white crystalline substance in plain view. Arousing their suspicion that the sachet contains shabu, the
arresting officers immediately approached petitioner, introduced themselves as police officers and effected the
arrest. After laboratory examination, the white crystalline substance placed inside the plastic sachet was found positive
for methamphetamine hydrochloride or shabu, a regulated drug.
Under these circumstances, petitioner was clearly arrested in flagrante delicto as he was then committing a crime,
violation of the Dangerous Drugs Act, within the view of the police officers. At the time of his arrest, the police officers
were actively performing their duties, since they were following up a tip that there was an illegal drug trade being
conducted in the area. This fact, coupled with the overt acts of petitioner, formed sufficient basis on the part of the police
officers to believe that a crime was actually being committed. Thus, petitioners case falls within the exception to the rule
requiring a warrant before effecting an arrest. Consequently, the results of the ensuing search and seizure were
admissible in evidence to prove petitioners guilt of the offense charged.
It is a settled rule that in cases involving violations of the Comprehensive Dangerous Drugs Act, credence is given to
prosecution witnesses who are police officers for they are presumed to have performed their duties in a regular
manner.[17]
In addition, buttressing the presumption of regularity in the performance of their duties, the arresting officers
substantially complied with the rules on the custody and disposition of evidence recovered from petitioner. Section 21,
paragraphs 1 and 2, Article II of RA No. 9165 provides:

Section 21. Custody and Disposition of Confiscated, Seized, and/or Surrendered Dangerous Drugs, Plant
Sources of Dangerous Drugs, Controlled Precursors and Essential Chemicals, Instruments/Paraphernalia
and/or Laboratory Equipment. - The PDEA [Philippine Drug Enforcement Agency] shall take charge and have
custody of all dangerous drugs, plant sources of dangerous drugs, controlled precursors and essential
chemicals, as well as instruments/paraphernalia and/or laboratory equipment so confiscated, seized and/or
surrendered, for proper disposition in the following manner:
(1) The apprehending team having initial custody and control of the drugs shall, immediately after
seizure and confiscation, physically inventory and photograph the same in the presence of the
accused or the person/s from whom such items were confiscated and/or seized, or his/her
representative or counsel, a representative from the media and the Department of Justice (DOJ),
and any elected public official who shall be required to sign the copies of the inventory and be
given a copy thereof;
(2) Within twenty-four (24) hours upon confiscation/seizure of dangerous drugs, plant sources of
dangerous
drugs,
controlled
precursors
and
essential
chemicals,
as
well
as
instruments/paraphernalia and/or laboratory equipment, the same shall be submitted to the
PDEA Forensic Laboratory for a qualitative and quantitative examination;
x x x x.

Corolarilly, the implementing provision of Section 21 (a), Article II of the Implementing Rules and Regulations (IRR)
of RA No. 9165, provides:
(a) The apprehending team having initial custody and control of the drugs shall, immediately after
seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the
person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a
representative from the media and the Department of Justice (DOJ), and any elected public official who shall
be required to sign the copies of the inventory and be given a copy thereof: Provided, further, that noncompliance with these requirements under justifiable grounds, as long as the integrity and the evidentiary value
of the seized items are properly preserved by the apprehending officer/team, shall not render void and invalid
such seizures of and custody over said items.

x x x x.[18]

In the case at bar, the requirements of the law were substantially complied with and the integrity of the drugs seized
from petitioner were preserved and safeguarded. From the time of petitioners arrest, the seized item was properly marked
and photographed. Proper inventory was also made in the presence of the representatives from the media, the
Department of Justice, the PDEA, and an elected public official, who all signed the receipt of the property seized. The
evidence was sent to the Negros Oriental Provincial Crime Laboratory for laboratory examination, which later tested
positive for methamphetamine hydrochloride with a weight of 0.02 gram. An unbroken chain of custody of the seized drug
had been evidently established by the prosecution.
For conviction of illegal possession of a prohibited drug to lie, the following elements must be established: (1) the
accused was in possession of an item or an object identified to be a prohibited or regulated drug; (2) such possession is
not authorized by law; and (3) the accused was freely and consciously aware of being in possession of the drug.[19] Based
on the evidence submitted by the prosecution, the above elements were duly established in the present case. Mere
possession of a regulated drug per se constitutes prima facie evidence of knowledge or animus possidendi sufficient to
convict an accused absent a satisfactory explanation of such possession - the onus probandi is shifted to the accused, to
explain the absence of knowledge or animus possidendi.[20]
The Court accords the highest degree of respect to the findings of the lower court as to petitioners guilt of the
offense charged against him, particularly where such findings are adequately supported by documentary as well as
testimonial evidence. The same respect holds too as regards the lower courts evaluation of the credibility of the
prosecution witnesses. It is a settled policy of this Court, founded on reason and experience, to sustain the findings of
fact of the trial court in criminal cases, on the rational assumption that it is in a better position to assess the evidence
before it, having had the opportunity to make an honest determination of the witnesses deportment during the trial.[21]

Furthermore, the well-entrenched rule is that the findings of facts of the trial court, as affirmed by the appellate
court, are conclusive on this Court, absent any evidence that both courts ignored, misconstrued, or misinterpreted cogent
facts and circumstances of substance which, if considered, would warrant a modification or reversal of the outcome of the
case.[22] In the present case, after a careful evaluation of the records, we find that no oversight was committed by the RTC
and the CA to disregard their factual findings that petitioner committed the crime charged against him.
In contrast to the overwhelming evidence of the prosecution, petitioner merely raised the defense of alibi. The
defense of denial and frame-up has been invariably viewed by this Court with disfavor, for it can easily be concocted and
is a common and standard defense ploy in prosecutions for violation of the Dangerous Drugs Act. In order to prosper, the
defense of denial and frame-up must be proved with strong and convincing evidence.[23]
To stress, in cases involving violations of the Dangerous Drugs Act, credence should be given to the narration of the
incident by the prosecution witnesses, especially when they are police officers who are presumed to have performed their
duties in a regular manner, unless there is evidence to the contrary. Moreover, in the absence of proof of motive to falsely
impute such a serious crime against the appellant, the presumption of regularity in the performance of official duty, as
well as the findings of the trial court on the credibility of witnesses, shall prevail over petitioners self-serving and
uncorroborated denial.[24]
As to the propriety of the penalty imposed upon petitioner, We find that the RTC imposed the appropriate penalty.
Section 11, Article II, of RA No. 9165, otherwise known as the Comprehensive Dangerous Drugs Act of 2002,
provides:
Section 11. Possession of Dangerous Drugs. The penalty of life imprisonment to death and a fine
ranging from Five hundred thousand pesos (P500,000.00) to Ten million pesos (P10,000,000.00) shall be
imposed upon any person who, unless authorized by law, shall possess any dangerous drug in the following
quantities, regardless of the degree of purity thereof:

x x x x.
Otherwise, if the quantity involved is less than the foregoing quantities, the penalties shall be graduated
as follows:
x x x x.
(3) Imprisonment of twelve (12) years and one (1) day to twenty (20) years and a fine ranging
from Three hundred thousand pesos (P300,000.00) to Four hundred thousand pesos (P400,000.00),
if the quantities of dangerous drugs are less than five (5) grams of opium, morphine, heroin,
cocaine or cocaine hydrochloride, marijuana resin or marijuana resin oil, methamphetamine
hydrochloride or "shabu," or other dangerous drugs such as, but not limited to, MDMA or
"ecstasy," PMA, TMA, LSD, GHB, and those similarly designed or newly introduced drugs and
their derivatives, without having any therapeutic value or if the quantity possessed is far beyond
therapeutic requirements; or less than three hundred (300) grams of marijuana.[25]

From the foregoing, illegal possession of less than five (5) grams of methamphetamine hydrochloride or shabu is
penalized with imprisonment of twelve (12) years and one (1) day to twenty (20) years and a fine ranging from Three
Hundred Thousand Pesos (P300,000.00) to Four Hundred Thousand Pesos (P400,000.00). The evidence adduced by the
prosecution established beyond reasonable doubt that petitioner had in his possession 0.02 gram of shabu, or less than
five (5) grams of the dangerous drug, without any legal authority.
Applying the Indeterminate Sentence Law, the minimum period of the imposable penalty shall not fall below the
minimum period set by the law; the maximum period shall not exceed the maximum period allowed under the law.
Taking the foregoing into consideration, the penalty meted out by the RTC, as affirmed by the CA, was within the range
provided by RA No. 9165. The appropriate penalty was, therefore, imposed by the lower court.
WHEREFORE, premises considered, the appeal is DENIED.

The Decision dated October 24, 2007 and the

Resolution dated March 7, 2008, of the Court of Appeals in CA-G.R. CR No. 00402 are AFFIRMED.

SO ORDERED.

DIOSDADO M. PERALTA
Associate Justice
WE CONCUR:
ANTONIO T. CARPIO
Associate Justice

PRESBITERO J. VELASCO, JR.

Associate Justice
Chairperson

ARTURO D. BRION
Associate Justice

MARIA LOURDES P. A. SERENO

Associate Justice

ATTESTATION
I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned
to the writer of the opinion of the Courts Division.

PRESBITERO J. VELASCO, JR.

Associate Justice
Third Division, Chairperson

CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution and the Division Chairpersons Attestation, I certify that the
conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the
opinion of the Courts Division.

RENATO C. CORONA
Chief Justice

Designated as an additional member in lieu of Associate Justice Roberto A. Abad, per Special Order No. 1059
dated August 1, 2011.
**
Designated as an additional member in lieu of Associate Justice Jose Catral Mendoza, per Special Order No.
1056 dated July 27, 2011.
***
Designated as an additional member, per Special Order No. 1028 dated June 21, 2011.
[1]
Penned by Associate Justice Isaias P. Dicdican, with Associate Justices Francisco P. Acosta and Franchito N.
Diamante, concurring; rollo, pp. 40-49.
[2]
Id. at 51-52.
[3]
Rollo, pp. 40-41.
[4]
Id. at 53-54
[5]
Id. at 55.
[6]
Id. at 53-59.
[7]
Id. at 58-59.
[8]
Id. at 48-49.
[9]
Id. at 11-12.
[10]
Rebellion v. People of the Philippines, G.R. No. 175700, July 5, 2010, 623 SCRA 343, 348.
[11]
People v. Santos, G.R. No. 176735, June 26, 2008, 555 SCRA 578, 601.
[12]
Valdez v. People, G.R. No. 170180, November 23, 2007, 538 SCRA 611, 622.
[13]
1987 Constitution, Article III, Sections 2 and 3 (2).
[14]
People v. Rancho, G.R. No. 186529, August 3, 2010, 626 SCRA 633, 641.
[15]
People v. Nuevas, G.R. No. 170233, February 22, 2007, 516 SCRA 463, 476.
[16]
People v. Rancho, supra note 14, at 642.
[17]
People v. Tamayo, G.R. No. 187070, February 24, 2010, 613 SCRA 556, 564.
[18]
Emphasis supplied.
[19]
People v. Teddy Batoon and Melchor Batoon, G.R. No. 184599, November 24, 2010 .
[20]
People v. Sembrano, G.R. No. 185848, August 16, 2010, 628 SCRA 328, 343.
[21]
People v. Dilao, G.R. NO. 170359, July 27, 2007, 528 SCRA 427, 439.
[22]
Id. at 439.
[23]
People v. Hernandez, G.R. No. 184804, June 18, 2009, 589 SCRA 625, 642-643.
[24]
People v. Dela Rosa, G.R. No. 185166, January 26, 2011.
[25]
Emphasis supplied.
*

Republic of the Philippines

Supreme Court
Manila
SECOND DIVISION

HON. JUDGE JESUS B. MUPAS, Presiding

Judge, Regional Trial Court, Branch 112
and
CARMELITA
F.
ZAFRA,
Chief
Administrative Officer,
DSWD,

G.R. No. 189365

Petitioners,

Present:

- versus -

CARPIO, J.,
Chairperson,
BRION,
SERENO,

PEOPLE OF THE PHILIPPINES,

REYES, and

thru its duly authorized representative,

the
Legal
Service
of
the
DSWD,
Quezon City and the Office of
the
Solicitor

PERLASBERNABE,* JJ.

General,

Respondents.

Promulgated:

October 12, 2011

x--------------------------------------------------x

DECISION

SERENO, J.:

In this Petition for Review on Certiorari under Rule 45, private petitioner seeks the reversal of the Decision[1] dated
19 March 2009 issued by the Court of Appeals (CA) in CA-G.R. SP No. 105199. The CA Decision reversed and set aside
the Orders[2] dated 19 December 2007 and 2 June 2008 of the Regional Trial Court of Pasay City (Branch 112), granting

her demurrer to evidence in Criminal Case Nos. 02-0371 and 02-0372. Private petitioner also assails the CA Resolution
dated 28 August 2009, denying her Motion for Reconsideration.

As the records and the CA found, private petitioner Carmelita F. Zafra (petitioner Zafra) was Supply Officer V[3] of
the Department of Social Welfare and Development (DSWD). On 14 November 1998, she arranged for the withdrawal for
replacement, of two hundred (200) cartons of Bear Brand Powdered Milk that were nearing their expiry date. She made
the arrangement for their withdrawal through DSWD personnel Marcelina Beltran, Administrative Officer III; and
Manuelito Roga, Laborer 1.[4]

Petitioner Zafra instructed Marcelina Beltran to have someone from the DSWD Property Division withdraw the 200
cartons of milk from the DSWD-VillamorAirbase Relief Operation Center (DSWD-VABROC) on 14 November 1998. Beltran
relayed this instruction to Roga. On the appointed date, however, no one from the Property Division arrived to pick up the
milk cases. Instead, three unidentified persons on board a four-wheeler truck came and hauled the 200 cases of milk. One
of the three persons who came to pick up the milk cases at the DSWD-VABROC premises introduced herself as Ofelia
Saclayan to Roga, the only DSWD employee present at that time.[5] Saclayan turns out to be the sister of Zafra. The 200
cases of milk withdrawn by Saclayan and her unidentified companions were valued at three hundred six thousand seven
hundred thirty-six pesos (P306,736).[6]

An internal investigation was conducted by the DSWD on the persons involved in the loss of the milk cases. On 06
August 1999, the investigating committee of the DSWD issued a Memorandum[7] entitled Report and Recommendation on
the Loss of the Two Hundred (200) Cases of Bear Brand Powdered Milk from DSWD-VABROC. In brief, the committee

report dismissed petitioner Zafra and her co-employees Beltran and Roga, whom they implicated in the loss of the milk
cases. The committee found substantial evidence to hold petitioner Zafra guilty of dishonesty and negligence of duty.[8]

The report of the DSWD investigating committee finding petitioner Zafra and her co-employee Beltran guilty of
dishonesty and negligence of duty was appealed to the Civil Service Commission (Commission). On 03 December 1999,
the Commission promulgated Resolution No. 992652,[9] which slightly modified the findings of the committee. The
Resolution, while absolving petitioner Zafra of the charge of dishonesty, found her guilty of simple neglect as follows:
The Commission has noted, however, that Zafra is not that entirely innocent. For the records disclose
that it was she who made representation with the MEGA Commercial, the supplier of said milk, to withdraw
and replace those cases of milk that are nearing their expiry dates. Surprisingly, however, after November 14,
1998, when the 200 milk cases of milk were actually withdrawn from VABROC she never made any contact
with MEGA Commercial as to what further steps to take on the case, such as to retrieve the loss thereof and
have these replaced by the company. Neither did she make any further inquiry as to the condition of milk
from VABROC. This unnatural inaction or callousness displayed by Zafra and her utter apathy in the
performance of her official functions calls for the imposition of sanctions on her.

...

...

...

Being both government employees, Zafra and Beltran are required to perform their duties and
functions with the highest degree of responsibility, integrity, loyalty and efficiency. And since both of them
failed on this score, they must suffer the consequences of their negligence.

WHEREFORE, the respective appeals of Carmelita F. Zafra and Marcelina M. Beltran are hereby
dismissed for want of merit. They are however, found guilty only of simple Neglect of Duty for which they are

each imposed the penalty of six (6) months suspension without pay. The appealed decision is thus modified
accordingly.

Quezon City, December 03, 1999.[10]

On 15 February 2002, the Ombudsman filed two Informations with the Regional Trial Court of Pasay (RTC-Pasay)
against petitioner Zafra, Beltran and Roga, docketed as Criminal Case Nos. 02-0371 and 02-0372.
Under Criminal Case No. 02-0371, petitioner Zafra and her co-accused Beltran and Roga were charged with
violating Section 3 (e) of Republic Act No. 3019 (R.A. 3019), otherwise known as the Anti-Graft and Corrupt Practices
Act. The Information filed in this case reads:
The undersigned Prosecutor, Office of the Ombudsman hereby accuses Marcelina M. Beltran,
Carmelita Zafra, Manuelito T. Roga and Ofelia Saclayan for Violation of Section 3 (e) of RA 3019, as amended,
committed as follows:

That on or about 13 November 1998, or for sometime, prior, or subsequent thereto, in Pasay City, and
within the jurisdiction of this Honorable Court, accused Marcelina M. Beltran, Carmelita F. Zafra, Carmelito
T. Roga (sic), Administrative Officer III, Supply Officer V, and Laborer I, respectively of the Department of
Social Welfare and Development, while in the performance of their official duties, and in connivance with
Ofelia Saclayan, a private respondent, with evident bad faith, did then and there, wilfully, unlawfully, and
criminally, cause damage or undue injury to the government, particularly the Department of Social Welfare
and Development in the amount of Php 306,736.00, by making it appear that the 200 cases of Bear Brand
Powdered Milk stocked at the DSWD Villamor Airbase Relief Operation Center (DSWD-VABROC) are about to
expire and need to be changed, and thereafter, without complying with the standard operating procedure in
withdrawing goods from the bodega, did then and there arrange for the immediate withdrawal of the subject
goods on the next day which was a Saturday, a non-working day, and appropriate the said goods for
themselves.

CONTRARY TO LAW.[11]

Petitioner Zafra, Beltran and Roga were charged with malversation under Article 217 of the Revised Penal Code in
Criminal Case No. 02-0372. The Information reads:
The undersigned Ombudsman Prosecutor, Office of the Ombudsman hereby accuses Carmelita Zafra,
Marcelina M. Beltran Manuelito T. Roga and Ofelia Saclayan for Malversation under Article 217 of the Revised
Penal Code, as amended, committed as follows:

That on or about 13 November 1998, or for sometime prior, or subsequent thereto, in Pasay City, and
within the jurisdiction of this Honorable Court, accused Marcelina M. Beltran, Administrative Officer III of the
Department of Social Welfare and Development, Villamor Airbase Relief Operation Center (DSWD-VABROC),
an accountable public officer by virtue of her being the custodian of the goods inside the DSWD-VABROC
bodega, in connivance with Carmelita F. Zafra, and Manuelito T. Roga, Supply Officer IV and Laborer I,
respectively of the Department of Social Welfare and Development and with the indispensable cooperation of
Ofelia T. Saclayan, a private respondent, did then and there, wilfully, unlawfully, and feloniously, cause the
unauthorized withdrawal of the 200 cases of Bear Brand Powdered Milk, a public property owned by the
DSWD stock[ed] at VABROC, and thereafter, did then and there appropriate the said goods for themselves to
the prejudice of the DSWD in the amount of Php 306,736.00.

CONTRARY TO LAW.[12]

The cases against petitioner Zafra and her co-accused were raffled to Branch 112 of RTC-Pasay. Upon
arraignment, they pleaded not guilty to the charges.

On 06 August 2003, the pretrial of the case was conducted, attended by only petitioner Zafra and
Beltran.[13] Thereafter, a joint trial for Criminal Case Nos. 02-0371 and 02-0372 ensued.

During the trial on the merits, the prosecution presented four witnesses to build up its case. The prosecution
presented Consolacion Obrique dela Cruz, a utility worker at the DSWD Property and Supply; Atty. Nelson Todas, former
DSWD Legal Officer V; Ruby Maligo Cresencio, the operations officer of Mega Commercial Trading, which supplied the
stolen milk cases to DSWD; and Isidro Tuastumban, a security guard posted at the DSWD lobby at the time the incident
happened.

After the prosecution rested its case, petitioner Zafra filed a Motion for Demurrer to Evidence.[14] She alleged therein
that the prosecution failed to present proof that she and her co-accused had wilfully, unlawfully, and feloniously caused
the withdrawal of the 200 cases of Bear Brand Powdered Milk and appropriated these for themselves to the prejudice of
DSWD. Thus, she concluded that the prosecution failed to establish the elements of the crime of malversation under Art.
217 of the Revised Penal Code. She likewise contended that the prosecution was not able to present proof that she and
her co-accused had done so in violation of Section 3 (e) of R. A. 3019.

The lower court required the prosecution to comment on petitioner Zafras demurrer to evidence. In its
Comment,[15] the prosecution contradicted the allegations therein and claimed to have established and proved the
elements of the crimes as charged against petitioner and her co-accused. It also alleged that it was able to establish
conspiracy among the accused and had evidence to show that petitioner Zafra caused the withdrawal of the goods, subject
matter of this case, through her sister -- co-accused Ofelia Saclayan, who was an unauthorized person.

On 19 December 2007, public respondent Judge Mupas issued an Order[16] granting the demurrer to evidence of
petitioner Zafra. Public respondent ruled that, after evaluating the testimonies of the witnesses for the prosecution, he
found them substantially insufficient to warrant the conviction of petitioner Zafra under the charges filed against her by
the Ombudsman. With the grant of her demurrer to evidence, petitioner was acquitted. [17] The decretal portion of the
Order reads:
WHEREFORE, the demurrer to evidence is GRANTED.

Consequently, accused CARMELITA ZAFRA y FUENTES is hereby ACQUITTED.

SO ORDERED.

On 28 January 2008, the prosecution, through its private prosecutor, filed a Motion for Reconsideration of the
Order dated 19 December 2007 issued by public respondent. On 2 June 2008, the motion was denied for lack of
merit.[18]

On 09 September 2008, the People filed with the CA a Petition for Certiorari under Rule 65, assailing the lower
courts grant of petitioner Zafras demurrer to evidence, resulting in her acquittal.[19] The petition, filed through the DSWD,
which was represented by its legal officers, raised the following issues:
Whether or not the Honorable Judge committed grave abuse of discretion in denying petitioners Motion
for Reconsideration of its Order granting private respondents demurrer to evidence;

Whether or not the Honorable Judge committed grave abuse of discretion when he failed to appreciate
the evidence of the prosecution providing beyond reasonable doubt private respondents negligence which
resulted to (sic) the unauthorized withdrawal of the 200 cases of Bear Brand Powdered Milk at the VABROC
belonging to the government.[20]

The Peoples Petition for Certiorari was docketed as CA-G.R. SP No. 105199 and was raffled to the appellate courts
Special Sixth Division. On 22 September 2008, a Resolution[21] was promulgated, directing petitioner Zafra to file a
Comment on the certiorari petition and thereafter instructing the Office of the Solicitor General to file a Reply thereto.

On 06 October 2008, petitioner Zafra, as private respondent in the appeal, filed her Comment and sought to
dismiss the Petition for Certiorari instituted by the prosecution.[22] In her Comment, she assailed the appeal of the DSWD
for being improper, having been filed directly with the appellate court instead of seeking the intervention of the Office of
the Solicitor General (OSG) to act on DSWDs behalf. She also pointed out the lack of authority of the signatory who had
executed the certificate of non-forum shopping attached to the petition.

On 06 November 2008, the OSG filed a Manifestation and Motion[23] adopting the Petition for Certiorari filed by the
DSWD. It prayed for the relaxation of the Rules on Procedure pertaining to the authority of the person signing the
Verification and Certification against forum-shopping attached to the petition filed by the DSWD.

On 19 November 2008, petitioner Zafra filed a Comment/Opposition[24] to the OSGs Manifestation and Motion and
moved that it be expunged from the records, as it was filed out of time.

On 23 January 2009, the CA, through its Fourth Division, issued a Resolution[25] granting the OSGs Manifestation
and Motion.

On 19 March 2009, the appellate court, through its Third Division, promulgated a Decision[26] granting the Peoples
petition and revoking and setting aside the lower courts Order granting private respondents demurrer to evidence. In its
Decision reversing the trial courts Order, the CA found that public respondent Judge Mupas committed grave abuse of
discretion through his grant of private respondents demurrer, which consequently resulted in her acquittal. Holding that
the prosecution was able to present sufficient evidence to prove the elements of the crimes in the Information filed against
private respondent, the appellate court ruled as follows:
A careful reading of the 19 December 2007 Order, supra, showed that the court a quo in granting the
Respondents demurrer to evidence relied heavily on the ground that the Petitioner miserably failed to show
that the Respondent had any direct participation in the actual withdrawal of the goods. This may be gleaned
from the pertinent portion of the 19 December 2007 Order, supra, to wit:

xxx There is no denying that the prosecution, after presenting all its witnesses and
documentary evidence has miserably failed to prove the guilt of the accused Carmelita Zafra beyond
reasonable doubt. The prosecution has never proven any direct participation of the herein accused to
the actual withdrawal of the goods. The prosecution witnesses presented testified during crossexamination that they have no personal knowledge nor did they see that the accused Carmelita Zafra
actually withdraw (sic) or cause[d] the withdrawal of the goods from VABROC. The prosecution
proved the relationship between Carmelita Zafra and a Ofelia Saclayan, the fact that Carmelita Zafra
coordinated with the prosecution witness Ruby Crescencio for the return of the 200 cases of Bear
Brand Powdered Milk which were alleged to be near expiry but it did not proved (sic) that on the day
when the goods were withdrawn from VABROC[,] accused Carmelita Zafra had a direct participation
for its withdrawal.

...

...

...

It bears to emphasize that the crime of malversation may be committed either through a positive act of
misappropriation of public funds or property or passively through negligence by allowing another to commit
such misappropriation. Thus, the Petitioners alleged failure to prove the Respondents direct participation in
the withdrawal of the 200 cases of milk did not altogether rule out malversation as the dolo or culpa in
malversation is only a modality in the perpetration of the felony.

Besides, even if the Information in Criminal Case No. 02-0372, supra, alleges willful malversation, this
does not preclude conviction of malversation through negligence if the evidence sustains malversation
through negligence. On this score, let US refer to the explicit pronouncement of the Supreme Court in People
v. Uy, Jr., thus:

xxx Even when the information charges willful malversation, conviction for malversation
through negligence may still be adjudged if the evidence ultimately proves that mode of
commission of the offense.

Likewise, We find that the court a quo committed grave abuse of discretion in acquitting the
Respondent for violation of Section 3(e) of RA 3019 ...
...

...

...

As earlier discussed, the court a quo acquitted the Respondent of the offense charged mainly because
of the alleged lack of any proof of her direct participation in the withdrawal of the 200 cases of Bear Brand
powdered milk. However, in view of the Peoples evidence showing Respondents inexcusable negligence in the
withdrawal of the goods in question, Respondent cannot likewise be acquitted of violation of Section 3(e) of RA
3019 since inexcusable negligence is one of the elements of the said offense.

In sum, We hold that the court a quo committed grave abuse of discretion in granting the
Respondents demurrer to evidence, which resulted to her untimely acquittal.

WHEREFORE, instant Petition is hereby GRANTED. The court a quos challenged Orders are REVOKED
and SET ASIDE. The case is hereby REMANDED to the court a quofor further proceedings.

SO ORDERED.[27]

Petitioner Zafra filed a Motion for Reconsideration[28] dated 31 March 2009 praying that the 19 March 2009
Decision of the CA reversing the lower courts grant of her demurrer to evidence be set aside. She further prayed that the
criminal cases filed against her be dismissed with prejudice.

On 09 June 2009, the OSG filed its Comment[29] on the Motion for Reconsideration of petitioner Zafra. It moved for
the denial of her Motion for Reconsideration and prayed that the assailed Decision of the Court of Appeals in CA-G.R. SP
No. 105199 be affirmed.

The CA, through its former Third Division, issued a Resolution[30] on 28 August 2009 denying petitioners Motion for
Reconsideration. The appellate court found that the issues she raised had been sufficiently considered and discussed in
its 19 March 2009 Decision.

On 19 October 2009, petitioner Zafra filed her Petition for Review on Certiorari[31] under Rule 45 of the Rules on
Civil Procedure. She assailed the 19 March 2009 Decision of the Court of Appeals in CA-G.R. SP No. 105199, as well as
the 28 August 2009 Resolution denying her Motion for Reconsideration.

We AFFIRM the entire ruling of the Court of Appeals.

After a thorough review of the records of this case, particularly the issues proffered by petitioner, we adopt the
findings of the appellate court. We find no reversible error in the ruling which is eloquently supported by existing
jurisprudence.[32]

We agree with the CAs disquisition that the lower courts grant of the demurrer to evidence of petitioner Zafra was
attended by grave abuse of discretion. The prosecutions evidence was, prima facie, sufficient to prove the criminal
charges filed against her for her inexcusable negligence, subject to the defense that she may present in the course of a
full-blown trial. The lower court improperly examined the prosecutions evidence in the light of only one mode of
committing the crimes charged; that is, through positive acts. The appellate court correctly concluded that the crime of
malversation may be committed either through a positive act of misappropriation of public funds or passively through
negligence by allowing another to commit such misappropriation.[33]

As a general rule, an order granting the accuseds demurrer to evidence amounts to an acquittal. There are certain
exceptions, however, as when the grant thereof would not violate the constitutional proscription on double jeopardy. For
instance, this Court ruled that when there is a finding that there was grave abuse of discretion on the part of the trial

court in dismissing a criminal case by granting the accuseds demurrer to evidence, its judgment is considered void, as
this Court ruled in People v. Laguio, Jr.:[34]

By this time, it is settled that the appellate court may review dismissal orders of trial courts granting an
accuseds demurrer to evidence. This may be done via the special civil action of certiorari under Rule 65
based on the ground of grave abuse of discretion, amounting to lack or excess of jurisdiction. Such
dismissal order, being considered void judgment, does not result in jeopardy. Thus, when the order of
dismissal is annulled or set aside by an appellate court in an original special civil action via certiorari, the
right of the accused against double jeopardy is not violated.[35]

In the instant case, having affirmed the CA finding grave abuse of discretion on the part of the trial court when it
granted the accuseds demurrer to evidence, we deem its consequent order of acquittal void.

Further, we do not find any pronouncement by the trial court on whether the act or omission of petitioner under the
circumstances would entail civil liability. Therefore, the CA properly ordered the remand of the case to the lower court for
further proceedings to determine whether petitioner is civilly liable for the loss of the milk cartons.

WHEREFORE, we DENY the Petition and affirm in toto the 19 March 2009 Decision of the Court of Appeals and its
28 August 2009 Resolution. Let the name of Judge Jesus B. Mupas be stricken off as petitioner, as such appellation
unilaterally made by petitioner Carmelita F. Zafra, is improper.

SO ORDERED.

Designated as Acting Member of the Second Division vice Associate Justice Jose P. Perez per Special Order No. 1114
dated 3 October 2011.
[1] Penned by CA Associate Justice Myrna Dimaranan Vidal and concurred in by then CA Associate Justice Martin S.
Villarama, Jr. and Associate Justice Rosalinda Asuncion-Vicente.
[2] Penned by Presiding Judge Jesus B. Mupas.
[3] CA rollo, p. 475.
[4] CA rollo, p. 08.
[5] Id.
[6] Id. at 15.
[7] Id. at 120.
*

Id. at 125.
Id. at 103.
[10] Civil Service Commission Resolution dated 03 December 1999, CA rollo, pp. 114-115.
[11] CA rollo, p.74.
[12] CA rollo, p. 77.
[13] Id. at 116.
[14] Id. at 34.
[15] CA rollo, p. 55.
[16] Id. at 25.
[17] Id. at 29.
[18] Id. at 30.
[19] CA rollo, p. 03.
[20] Id. at 09.
[21] Id. at 150.
[22] Id. at 151.
[23] CA rollo, p. 172.
[24] Id. at 184.
[25] Penned by CA Associate Justice Myrna Dimaranan Vidal and concurred in by CA Associate Justices Andres B. Reyes,
Jr. and Rosalinda Asuncion-Vicente.
[8]
[9]

Penned by CA Associate Justice Myrna Dimaranan Vidal and concurred in by then Court of Appeals Associate Justice
Martin S. Villarama, Jr. and CA Associate Justice Rosalinda Asuncion-Vicente.
[27] CA rollo, p. 205.
[28] Id. at 206.
[29] Id. at 223.
[30] Id. at 233.
[31] Rollo, p. 13.
[32] The Court of Appeals correctly cited the cases of People v. Uy, Jr., G.R. No. 157399, 17 November 2005, 475 SCRA 248
and People v. Pajaro, G.R. No. 167860-865, 17 June 2008, 554 SCRA 572 that provides inexcusable negligence as an
element of the crime of malversation under Section 3 (e) of R.A. 3019.
[33] Rollo, p. 41.
[34] G.R. No. 128587, 16 March 2007, 518 SCRA 393.
[35] Id
[26]

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 139615

May 28, 2004

PEOPLE OF THE PHILIPPINES, appellee,

vs.
AMADEO TIRA and CONNIE TIRA, appellants.
DECISION
CALLEJO, SR., J.:
This is an appeal of the Decision1 of the Regional Trial Court of Pangasinan, Branch 46, finding appellants Amadeo Tira
and Connie Tira guilty beyond reasonable doubt of violating Section 16, in relation to Section 20, Article III of Republic Act
No. 6425, known as the Dangerous Drugs Act of 1972, as amended by Rep. Act No. 7659, sentencing each of them to
suffer the penalty of reclusion perpetua and ordering each of them to pay a fine of P1,000.000.2
The Indictment
The appellants Amadeo Tira and Connie Tira were charged in an Information which reads:
That on or about March 9, 1998, in the Municipality of Urdaneta, province of Pangasinan and within the jurisdiction of
this Honorable Court, the above-named accused, conspiring together, did then and there willfully, unlawfully and
feloniously have in their possession, control and custody the following:
- Three (3) (sic) sachets of shabu

- Six (6) pieces opened sachets of shabu residue

- One (1) brick of dried marijuana leaves weighing 721 grams
- Six disposable lighter
- One (1) roll Aluminum Foil
- Several empty plastics (tea bag)
- Cash money amounting to P12,536.00 in different denominations believed to be proceeds of the contraband.
without first securing the necessary permit/license to possess the same.
CONTRARY to SEC. 8 in relation to Sec. 20 of RA 6425, as amended.3
The Case for the Prosecution4
In the evening of February 24, 1998, SPO3 Asidelio Manibog received a verbal instruction from the Chief of Police
Superintendent Wilson R. Victorio to conduct surveillance operations on the house of Amadeo Tira and Connie Tira at
Perez Extension Street because of reported rampant drug activities in the said area. Manibog formed a team composed of
SPO1 Renato Cresencia, PO3 Reynaldo Javonilla, Jr. and PO3 Efren Abad de Vera to conduct the ordered surveillance.
At around 8:00 p.m., the group, clad in civilian clothes, arrived at Perez Extension Street. As they stationed themselves in
the periphery of a store, they observed that more than twenty persons had gone in and out of the Tira residence. They
confronted one of them, and asked what was going on inside the house. The person revealed that Amadeo Tira sold shabu,
and that he was a regular customer. The group went closer to the house and started planning their next move. They
wanted to pose as buyers, but hesitated, for fear of being identified as PNP members. Instead, they stayed there up to
12:00 midnight and continued observing the place. Convinced that illegal activities were going on in the house, the
policemen returned to the station and reported to P/Supt. Wilson R. Victorio. After hearing their report, P/Supt. Victorio
instructed his men to make an affidavit of surveillance preliminary to an application for a search warrant.5
On March 6, 1998, SPO3 Asidelio Manibog, PO3 Efren Abad de Vera, SPO1 Renato Cresencia and PO2 Reynaldo Soliven
Javonilla, Jr. executed an Affidavit of Surveillance, alleging, inter alia, that they were members of the Drug Enforcement
Unit of Urdaneta, Pangasinan, and that in the evening of February 24, 1998, they confirmed reports of illegal drug-related
activities in the house of the spouses Amadeo and Connie Tira.6 On March 6, 19987Police Chief Inspector Danilo Bumatay
Datu filed an Application for a Search Warrant in the Municipal Trial Court of Urdaneta, Pangasinan, attaching thereto
the affidavit of surveillance executed by his men and a sketch of the place to be searched.8

Satisfied with the testimonies of SPO3 Manibog, PO3 de Vera, SPO1 Cresencia and PO2 Javonilla, Jr., Judge Aurora A.
Gayapa issued a search warrant commanding the applicants to make an immediate search of the Tira residence at
anytime of the day or night, particularly the first room on the right side, and the two rooms located at Perez south, and
forthwith seize and take possession of the following items:
1. Poor Mans Cocaine known as Shabu;
2. Drug-Usage Paraphernalia; and
3. Weighing scale.9
P/Sr. Inspector Ludivico Bravo, and as head of the team, with SPO3 Cariaga, PO3 Concepcion, Cario, Galima, Villaroya,
Andaya, SPO1 Mario Tajon, SPO1 Asterio Dismaya, SPO1 Renato Cresencia, and PO3 Reynaldo Javonillo were directed to
implement the search warrant.10 They responded and brought Barangay Kagawad Mario Conwi to witness the search.11 At
2:35 p.m. on March 9, 1998, the team proceeded to the Tira residence. The men found Ernesto Tira, the father of Amadeo,
at the porch of the house. They introduced themselves and told Ernesto that they had a warrant authorizing them to
search the premises. Ernesto led them inside. The policemen found the newly awakened Amadeo inside the first room12 of
the house.13 With Barangay Kagawad Conwi and Amadeo Tira, the policemen proceeded to search the first room to the
right (an inner room) and found the following under the bed where Amadeo slept:14
1. 9 pcs. suspected methamphetamine hydrochloride placed in heat-sealed transparent plastic sachets
2. roll aluminum foil
3. several empty plastic transparent
4. used and unused aluminum foil15
5. disposable lighters
6. 1 sachet of shabu confiscated from Nelson Tira16
They also found cash money amounting to P12,536 inside a shoulder bag placed on top of the television, in the following
denominations:
1 pc. -P1,000.00 bill
4 pcs. - 500.00 bill

52 pcs. - 100.00 bill

36 pcs. - 50.00 bill
100 pcs. - 20.00 bill
53 pcs. - 10.00 bill
1 pc. - 5.00 bill
1 pc. - 1.00 coin17
The policemen listed the foregoing items they found in the house. Amadeos picture was taken while he was signing the
said certification.18 Ernesto (Amadeos father), also witnessed the certification.
A joint affidavit of arrest was, thereafter, executed by SPO3 Asidelio Manibog, SPO1 Mario C. Tajon, SPO1 Asterio T.
Dismaya, SPO1 Renato M. Cresencia and PO3 Reynaldo S. Javonilla, Jr. for the apprehension of Amadeo Tira and Nelson
Tira who were brought to the police station for custodial investigation. The articles seized were turned over to the PNP
Crime Laboratory, Urdaneta Sub-Office, for examination.19 In turn, a laboratory examination request was made to the
Chief of the Philippine National Police Service-1, Sub-Office, Urdaneta, Pangasinan for the following:
a. Three (3) sachets of suspected methamphetamine hydrochloride approximately 0.5 grams;
b. Six (6) opened sachets of suspected methamphetamine hydrochloride (SHABU) residue;
c. Twenty-four (4) pieces of dried marijuana leaves sachet; and
d. One (1) heat-sealed plastic sachet of suspected methamphetamine hydrochloride confiscated from the possession
of Nelson Tira.20
On March 10, 1998, P/Supt. Wilson R. Victorio executed a Compliance/Return of Search Warrant.21
On March 17, 1998, the PNP Crime Laboratory Group in Physical Science Report No. DT-057-98 reported that the test
conducted by Police Superintendent/Chemist Theresa Ann Bugayong-Cid,22 yielded positive for methamphetamine
hydrochloride (shabu) and marijuana. The report contained the following findings:
"A1 to A3, "B1 to B6," "E" POSITIVE to the test for methamphetamine hydrochloride (shabu), a regulated drug.

"C" and "D1 to D4" POSITIVE to the test for marijuana, a prohibited drug.
CONCLUSION:
Specimens A1 to A3, B1 to B6 and E contain methamphetamine hydrochloride (Shabu) and specimens C and D1 to D24
contain marijuana.23
A criminal complaint was filed by P/Supt. Wilson R. Victorio against Amadeo Tira and Connie Tira on March 10, 1998 for
violation of Rep. Act No. 6425, as amended.24 After finding probable cause, Assistant Provincial Prosecutor Rufino A.
Moreno filed an Information against the Tira Spouses for illegal possession of shabu and marijuana, in violation of Section
8, in relation to Section 20 of Rep. Act No. 6425.25 A warrant of arrest was issued against Connie Tira on May 13, 1998.
However, when the policemen tried to serve the said warrant, she could not be found in the given address.26 She was
arrested only on October 6, 1998.27
During the trial, the court conducted an ocular inspection of the Tira residence.28
The Case for Accused Amadeo Tira29
Amadeo Tira denied the charge. He testified that he was a furniture delivery boy30 who owned a one-storey bungalow
house with two bedrooms and one masters bedroom. There was also another room which was divided into an outer and
inner room; the latter room had no windows or ventilation. The house stood twenty meters away from Perez Extension
Street in Urdaneta, Pangasinan, and could be reached only by foot.31 He leased the room located at the western portion to
his nephew Chris Tira32 and the latters live-in-partner Gemma Lim for four hundred pesos a month.33 Chris and Gemma
were engaged in the buying and selling of bananas. He denied that there were young men coming in and out of his
house.34
In the afternoon of March 6, 1998, he was in his house sleeping when the policemen barged into his house. He heard a
commotion and went out of the room to see what it was all about, and saw police officers Cresencia, Javonilla and
Bergonia, searching the room of his nephew, Chris Tira. He told them to stop searching so that he could contact his
father, Ernesto, who in turn, would call the barangay captain. The policemen continued with their search. He was then
pulled inside the room and the policemen showed him the items they allegedly found.35
Barangay Kagawad Mario Conwi testified that on March 9, 1998, while he was at Calle Perez, Urdaneta, Pangasinan,
Capt. Ludivico Bravo asked to be accompanied to the Tira residence. Capt. Bravo was with at least ten other policemen.
As they parked the car at Calle Perez, the policemen saw a man running towards the direction of the ricefields. Kagawad
Conwi and some of the policemen chased the man, who turned out to be Nelson Tira. One of the policemen pointed to a
sachet of shabu which fell to the ground near Nelson. The policemen arrested him and proceeded to the house of Amadeo
Tira to serve the warrant.36 When they reached the house, the other policemen were waiting. He saw Amadeo and Connie

Tira sitting by the door of the house in the sala. Thereafter, he and the policemen started the search.37 They searched the
first room located at the right side (if facing south),38 and found marijuana, shabu, money and some paraphernalia.39 An
inventory of the items seized was made afterwards, which was signed by Capt. Bravo and Ernesto Tira.40
Alfonso Gallardo, Amadeos neighbor, testified that he was the one who constructed the Tira residence and that the house
initially had two rooms. The first room was rented out, while the second room was occupied by the Spouses Amadeo and
Connie Tira.41 Subsequently, a divider was placed inside the first room.42 He also testified that his house was only three
(3) meters away from that of the Tiras, and that only a toilet separated their houses.43 He denied that there were many
people going in and out of the Tira residence.44
The Ruling of the Trial Court
The trial court rendered judgment on September 24, 1998, finding Amadeo Tira guilty beyond reasonable doubt of illegal
possession of 807.3 grams of marijuana and 1.001 gram of shabu. The decretal portion of its decision is herein quoted:
WHEREFORE, JUDGMENT is hereby rendered CONVICTING beyond reasonable doubt accused AMADEO TIRA for Illegal
Possession of Marijuana weighing 807.3 grams and shabu weighing 1.001 gram penalized under Article III, Sections 16
and 20, of Republic Act 6425, known as [the] Dangerous Drugs Act of 1972, as amended by Republic Act 7659. The Court
sentences Amadeo Tira to suffer the penalty of Reclusion Perpetua and a fine of P1,000,000.00.
The amount of P12,536.00 is hereby forfeited in favor of the government which forms part of the fine; the marijuana
weighing 807.3 grams and shabu weighing 1.001 gram are hereby forfeited in favor of the government; the disposable
lighter and the aluminum foil are likewise forfeited in favor of the government.
The Branch Clerk of Court of this Court is hereby ordered to prepare the mittimus.
The Warden, Bureau of Jail Management and Penology (BJMP) is hereby ordered to transmit the person of Amadeo Tira to
the National Bilibid Prison with proper escort within fifteen (15) days upon receipt of this Order.45
The trial court upheld the validity of Search Warrant No. 3 issued by Judge Aurora Gayapa. It found Amadeos defense,
that the room where the items were seized was rented out to the couple Cris Tira and Gemma Lim, unsubstantiated. It
held that Amadeo, as owner of the house, had control over the room as well as the things found therein and that the inner
room was a secret and practical place to keep marijuana, shabu and related paraphernalia.46
Amadeo appealed the decision.47
The Case Against Connie Tira

After her arrest, Connie filed a motion to quash search warrant,48 alleging that the police officers who applied for the said
warrant did not have any personal knowledge of the reported illegal activities. She contended that the same was issued in
violation of Section 4, Rule 126 of the Rules of Court, as the judge issued the search warrant without conducting
searching questions and answers, and without attaching the records of the proceedings. Moreover, the search warrant
issued was in the nature of a general warrant, to justify the "fishing expedition" conducted on the premises.
On October 26, 1998, the presiding judge ordered Judge Aurora A. Gayapa to forward the stenographic notes of the
applicant and the witnesses.49 Connie was arraigned on November 9, 1998, pending the resolution of the motion. She
pleaded not guilty to the charge of illegal possession of shabu and marijuana.50 The trial court thereafter issued an Order
on November 11, 1998, denying the motion to quash.51 It did not give credence to the allegations of Connie Tira, and
found that Judge Gayapa issued the search warrant after conducting searching questions, and in consideration of the
affidavit of witness Enrique Milad.
Connie testified that she was engaged in the business of buying and selling of fruits, while her husband was employed at
the Glasshouse Trading. One of the rooms in their house was occupied by their three boarders, two male persons and one
female.
In the afternoon of March 9, 1998, she and her husband Amadeo were in their house, while their boarders were in their
respective rooms. At 2:30 p.m., she was in the kitchen taking care of her one-year-old child. She had other three children,
aged eight, four, and three, respectively, who were watching television. Her husband Amadeo was sleeping in one of the
rooms. Suddenly, five policemen barged into their house and searched all the rooms. The policemen found and seized
articles in the room occupied by one of their boarders. They arrested Amadeo, and her brother-in-law, Nelson Tira, and
brought them to the police station. The boarders, however, were not arrested.
Joy Fernandez, a neighbor of the Tiras, lived approximately ten meters away from the latter. Since they had no television,
she frequently went to her neighbors house to watch certain programs. In the afternoon of March 9, 1998, she was at the
Tira residence watching "Mirasol," while Connie was in the kitchen nursing her baby. Suddenly, about five or ten persons
ran inside the house and handcuffed Amadeo Tira.52
The Ruling of the Trial Court
The trial court found Connie Tira guilty beyond reasonable doubt of illegal possession of 807.3 grams of marijuana and
1.001 gram of shabu. The dispositive portion of the decision reads:
WHEREFORE, JUDGMENT is hereby rendered CONVICTING beyond reasonable doubt accused CONNIE TIRA for Illegal
Possession of Marijuana weighing 807.3 grams and shabu weighing 1.001 gram penalized under Article III, Section 16 and
20, of Republic Act 6425, known as [the] Dangerous Drugs Act of 1972, as amended by Republic Act 7659, the Court
sentences Connie Tira to suffer the penalty of Reclusion Perpetua and a fine ofP1,000,000.00.

The amount of P12,536.00 is hereby forfeited in favor of the government which forms part of the fine; the marijuana
weighing 807.3 grams and shabu weighing 1.001 gram are hereby forfeited in favor of the government; the disposable
lighter and the aluminum foil are, likewise, forfeited in favor of the government.
The Warden, Bureau of Jail Management and Penology (BJMP) is hereby ordered to transmit the person of Connie Tira to
the National Bilibid Prisons with proper escort within fifteen (15) days upon receipt of his Order.53
The trial court did not believe that Connie Tira had no knowledge, control and possession of the shabu and marijuana
found in the first or inner room of their house. It stressed that Connie and Amadeo Tira jointly controlled and possessed
the shabu and marijuana that the policemen found therein. It ratiocinated that it was unusual for a wife not to know the
existence of prohibited drugs in the conjugal abode. Thus, as husband and wife, the accused conspired and confederated
with each other in keeping custody of the said prohibited articles.54 The court also held that Connie Tiras flight from their
house after the search was an indication of her guilt. Connie, likewise, appealed the decision.55
The Present Appeal
In their brief, the appellants Amadeo and Connie Tira assigned the following errors committed by the trial court:
I
THE TRIAL COURT ERRED IN CONVICTING ACCUSED-APPELLANTS DESPITE FAILURE ON THE PART OF THE
PROSECUTION TO PROVE THEIR GUILT BEYOND REASONABLE DOUBT.
II
THE TRIAL COURT ERRED IN NOT HOLDING THAT THE SEARCH WAS ILLEGALLY MADE.
III
ASSUMING THAT ACCUSED-APPELLANT AMADEO TIRA IS GUILTY AS CHARGED, THE TRIAL COURT ERRED IN
HOLDING THAT THERE WAS A CONSPIRACY BETWEEN HIM AND HIS WIFE CONNIE TIRA.56
The Court shall resolve the assigned errors simultaneously as they are interrelated.
The appellants contend that the search conducted by the policemen in the room occupied by Chris and Gemma Lim,
where the articles and substances were found by the policemen, was made in their absence. Thus, the search was made
in violation of Section 7, Rule 126 of the Rules of Criminal Procedure, which provides:

SEC. 7. Search of house, room, or premise, to be made in presence of two witnesses. No search of house, room, or any
other premise shall be made except in the presence of the lawful occupant thereof or any member of his family or in the
absence of the latter, in the presence of two witnesses of sufficient age and discretion residing in the same locality.
The appellants posit that the articles and substances found by the policemen in their house are inadmissible in evidence,
being the fruits of a poisonous tree. Hence, they contend, they should have been acquitted of the crime charged. The
appellants further assert that the prosecution failed to prove that they owned the prohibited drugs, and that the same
were in their possession and control when found by the policemen. They insist that it cannot be presumed that they were
in control and possession of the said substances/articles simply because they owned the house where the same were
found, considering that the room was occupied by Chris Tira and his live-in partner, Gemma Lim.
The appellant Connie Tira avers that she never fled from their house after the policemen had conducted the search.
Neither was she arrested by the policemen when they arrested her husband.
The appeals have no merit.
Contrary to the appellants claim, appellant Amadeo Tira was present when the policemen searched the inner room of the
house. The articles and substances were found under the bed on which the appellant Amadeo Tira slept. The policemen
did not find the said articles and substances in any other room in the house:
Q So when you reached the house of Amadeo Tira at the Tiras compound, you saw the father and you told him you
are implementing the Search Warrant and your group was allowed to enter and you are allowed to search in the
presence of Amadeo Tira?
A Yes, Sir.
PROS. DUMLAO
Q In the course of your search, what did you find?
WITNESS:
A We found out suspected marijuana leaves, Sir.
Q Where, in what particular place did you find?
A Under the bed inside the room of Amadeo Tira, Sir

Q What else did you find aside from marijuana leaves?

A We also find suspected sachet of shabu, Sir.
Q What else?
A Lighter, Sir.
COURT:
Q If that shabu will be shown to you, could you identify the same?
WITNESS:
A Yes, Sir.
Q About the marijuana leaves, if shown to you could you identify the same?
A Yes, Sir.
PROS. DUMLAO:
Q What else did you find out aside from the marijuana leaves, shabu and lighter?

A I have here the list, Sir.

One (1) brick of marijuana
24 pcs. tea bag of marijuana
9 pcs. sachets of suspected "shabu"
6 disposable lighters
1 roll of aluminum foil

several empty plastic; several used

and unused aluminum foil
one (1) sachet of shabu confiscated from Nelson Tira; and
P12,536.00 cash in different denominations proceeds of the contrand (sic).
COURT:
Q Where did you find the money?

A Near the marijuana at the bag, Sir.

Q About the money, could you still identify if shown to you?
A Yes, Sir.
Q When you found shabu, lighter, marijuana, and money, what did you do?
A We marked them, Sir.
Q All of the items?
A Only the marijuana, Sir.
Q What mark did you place?
A My signature, Sir.57

PROS. TOMBOC:

Q And when you were allowed to enter the house, did you notice who was present?
A I noticed the presence of Connie Tira, Sir.
Q When you said Connie Tira, is she the same Connie Tira the accused in this case?
A Yes, Sir, she was taking care of the baby.
Q Who else?
A We also noticed the presence of Amadeo Tira, Sir.
Q What was he doing there?
A He was newly awake, Sir.
Q Upon entering the house, what did you do?
A We entered and searched the first room, Sir.
Q What did you find out?
A Shabu and Marijuana and paraphernalia, Sir.
Q Are you one of those who entered the house?
A Yes, Sir.
Q Can you mention to the Honorable Court those items that you searched in the house of Connie Tira and Amadeo
Tira?
A As per in (sic) our records, we found three (3) sachets containing suspected Methamphetamine Hydrochloride
"Shabu" residue; one (1) brick of suspected dried marijuana leaves weighing more or less 750 grams; twenty-four
(24) tea bags containing dried marijuana leaves; six (6) disposable lighter; one (1) roll aluminum foil; several empty
plastics (tea bag); several used and unused aluminum foil; and cash money amounting to P12,536.00 in different
denominations believe[d] to be proceeds of the contraband, Sir.

Q You said you recovered one (1) brick of marijuana leaves, showing to you a (sic) one (1) brick suspected to be
marijuana leaves, is this the one you are referring to?
A Yes, Sir, this is the one.58
Appellant Amadeo Tira was not the only witness to the search; Kagawad Mario Conwi and Ernesto Tira, Amadeos father,
were also present. Ernesto Tira even led the policemen inside the house. This is evidenced not only by the testimony of
Kagawad Conwi, but also by the certification signed by the appellant himself, along with Kagawad Conwi and Ernesto
Tira.59
The trial court rejected the testimony of appellant Amadeo Tira that the inner room searched by the policemen was
occupied by Chris Tira and his girlfriend Gemma Lim with the following encompassing disquisition:
The defense contention that a couple from Baguio City first occupied the first room, the Court is not persuaded because
they did not present said businessmen from Baguio City who were engaged in vegetable business. Secondly, the same
room was rented by Chris Tira and Gemma Lim. Chris Tira and Gemma Lim, engaged in banana business, were not
presented in Court. If it were true that Chris Tira and Gemma Lim were the supposed lessees of the room, they should
have been apprehended by the searching party on March 9, 1998, at about 2:30 p.m. There was no proof showing that
Chris Tira and Gemma Lim ever occupied the room, like personal belongings of Chris Tira and Gemma Lim. The defense
did not even show proof showing that Chris Tira reside in the first room, like clothings, toothbrush, soap, shoes and other
accessories which make them the residents or occupants of the room. There were no kitchen plates, spoons, powder, or
soap evidencing that the said room was occupied by Chris Tira and Gemma Lim. Amadeo Tira contended that Chris Tira
and Gemma Lim are engaged in banana business. There are no banana stored in the room at the time of the search and
both of them were out of the room at the time of the search. And why did not Amadeo Tira supply the police officers of the
personal identities and address where they could find Chris Tira and Gemma Lim at the time of the search. If they were
banana dealers, they must be selling their banana in the market and they could have pointed them in the market.60
We are in full accord with the trial court. It bears stressing that the trial court conducted an ocular inspection of the
house of the appellants, and thus, had first hand knowledge of the layout of the house. Besides, the testimony of the
appellant Amadeo Tira, that the inner room was occupied by Chris Tira and Gemma Lim who were not there when the
search was conducted, is belied by the testimony of the appellant Connie Tira that the room was occupied by two male
and one female boarders who were in the room when the policemen searched it. Thus:
Q You said that while taking care of your baby, several policemen barged [sic] your house?

A Yes, Sir.

Q And they proceeded to your room where your husband was sleeping at that time?
A Yes, Sir.
Q And it is in that room where your husband was sleeping and where those articles were taken?
A No, Sir.
Q Where are (sic) those things came (sic) from?
A At the room where my boarders occupied, Sir.
Q So, at that time where were those boarders?
A They were inside their room, Sir.
Q How many of them?
A Two (2) male persons and one woman, Sir.
Q And do you know their whereabout[s], Madam Witness?
A No more, Sir.
Q When did they leave, Madam Witness?
A At that time, they left the house, Sir.
Q They were not investigated by the police?
A No, Sir.61
We agree with the finding of the trial court that the only occupants of the house when the policemen conducted their
search were the appellants and their young children, and that the appellants had no boarders therein.
Before the accused may be convicted of violating Section 8 of Republic Act No. 6425, as amended by Rep. Act No. 7659,
the prosecution is burdened to prove beyond reasonable doubt the essential elements of the crime, viz: (1) the actual

possession of an item or object which is identified to be a prohibited drug; (2) such possession is not authorized by law;
and, (3) the accused freely or consciously possessed the said drug.62
The essential elements of the crime of possession of regulated drugs are the following: (a) the accused is found in
possession of a regulated drug; (b) the person is not authorized by law or by duly constituted authorities; and, (c) the
accused has knowledge that the said drug is a regulated drug. This crime is mala prohibita, and, as such, criminal intent
is not an essential element. However, the prosecution must prove that the accused had the intent to possess (animus
posidendi) the drugs. Possession, under the law, includes not only actual possession, but also constructive possession.
Actual possession exists when the drug is in the immediate physical possession or control of the accused.63 On the other
hand, constructive possession exists when the drug is under the dominion and control of the accused or when he has the
right to exercise dominion and control over the place where it is found.64 Exclusive possession or control is not
necessary.65 The accused cannot avoid conviction if his right to exercise control and dominion over the place where the
contraband is located, is shared with another.66
Thus, conviction need not be predicated upon exclusive possession, and a showing of non-exclusive possession would not
exonerate the accused.67 Such fact of possession may be proved by direct or circumstantial evidence and any reasonable
inference drawn therefrom. However, the prosecution must prove that the accused had knowledge of the existence and
presence of the drug in the place under his control and dominion and the character of the drug.68 Since knowledge by the
accused of the existence and character of the drugs in the place where he exercises dominion and control is an internal
act, the same may be presumed from the fact that the dangerous drug is in the house or place over which the accused has
control or dominion, or within such premises in the absence of any satisfactory explanation.69
In this case, the prohibited and regulated drugs were found under the bed in the inner room of the house of the
appellants where they also resided. The appellants had actual and exclusive possession and control and dominion over
the house, including the room where the drugs were found by the policemen. The appellant Connie Tira cannot escape
criminal liability for the crime charged simply and merely on her barefaced testimony that she was a plain housewife, had
no involvement in the criminal actuations of her husband, and had no knowledge of the existence of the drugs in the
inner room of the house. She had full access to the room, including the space under the bed. She failed to adduce any
credible evidence that she was prohibited by her husband, the appellant Amadeo Tira, from entering the room, cleaning it,
or even sleeping on the bed. We agree with the findings and disquisition of the trial court, viz:
The Court is not persuaded that Connie Tira has no knowledge, control and possession of the shabu and marijuana
(Exhibits "M," "N," "O" and "P") found in their room. Connie Tira and Amadeo Tira jointly control and possess the shabu
(Exhibits "M" and "N") and marijuana (Exhibits "O" and "P") found in the room of their house. It is unusual for a wife not
to know the existence in their conjugal abode, the questioned shabu and marijuana. The husband and wife (Amadeo and
Connie) conspired and confederated with each other the keeping and custody of said prohibited articles. Both of them are
deemed in possession of said articles in violation of R.A. 6425, Section 8, in relation to Section 20.

The Crimes Committed by the Appellants

The trial court convicted the appellants of violating Section 16, in relation to Section 20, of Rep. Act No. 6425, as
amended. The Office of the Solicitor General (OSG) asserts that the appellants should be convicted of violating Section 8 of
Rep. Act No. 6425, as amended. We do not agree with the trial court and the OSG. We find and so hold that the appellants
are guilty of two separate crimes: (a) possession of regulated drugs under Section 16, in relation to Section 20, of Rep. Act
No. 6425, as amended, for their possession of methamphetamine hydrochloride, a regulated drug; and, (b) violation of
Section 8, in relation to Section 20 of the law, for their possession of marijuana, a prohibited drug. Although only one
Information was filed against the appellants, nevertheless, they could be tried and convicted for the crimes alleged therein
and proved by the prosecution. In this case, the appellants were charged for violation of possession of marijuana and
shabu in one Information which reads:
That on or about March 9, 1998, in the Municipality of Urdaneta, province of Pangasinan, and within the jurisdiction of
this Honorable Court, the above-named accused, conspiring together, did then and there willfully, unlawfully and
feloniously have in their possession, control and custody the following:
- Three (3) pieces (sic) sachets of shabu
- Six (6) pieces opened sachets of shabu residue
- One (1) brick of dried marijuana leaves weighing 721 grams
- Twenty-four (24) tea bags of dried marijuana leaves weighing 86.3 grams
- Six [6] disposable lighter
- One (1) roll Aluminum foil
- Several empty plastics (tea bag)
- Cash money amounting to P12,536.00 in different denominations believed to be proceeds of the contraband.
without first securing the necessary permit/license to posses[s] the same.
CONTRARY TO SEC. 8, in relation to Sec. 20 of R.A. 6425, as amended."70

The Information is defective because it charges two crimes. The appellants should have filed a motion to quash the
Information under Section 3, Rule 117 of the Revised Rules of Court before their arraignment. They failed to do so. Hence,
under Rule 120, Section 3 of the said rule, the appellants may be convicted of the crimes charged. The said Rule provides:
SEC. 3. Judgment for two or more offenses. - When two or more offenses are charged in a single complaint or information
but the accused fails to object to it before trial, the court may convict him of as many offenses as are charged and proved,
and impose on him the penalty for each offense, setting out separately the findings of fact and law in each offense.
The Proper Penalties On the Appellants
The crime of violation of Section 8, Article II of Rep. Act No. 6425, as amended, for illegal possession of 807.3 grams of
marijuana, a prohibited drug, is punishable by reclusion perpetua to death. Considering that there are no qualifying
circumstances, the appellants are sentenced to suffer the penalty of reclusion perpetua, conformably to Article 63 of the
Revised Penal Code and are ordered to pay a fine of P500,000.00.
Under Section 16, Article III of Rep. Act No. 6425, as amended, the imposable penalty of possession of a regulated drug,
less than 200 grams, in this case, shabu, is prision correccional to reclusion perpetua. Based on the quantity of the
regulated drug subject of the offense, the imposable penalty shall be as follows:
QUANTITY IMPOSABLE PENALTY
Less than one (1) gram to 49.25 grams prision correccional
49.26 grams to 98.50 grams prision mayor
98.51 grams to 147.75 grams reclusion temporal
147.76 grams to 199 grams reclusion perpetua
Considering that the regulated drug found in the possession of the appellants is only 1.001 grams, the imposable penalty
for the crime is prision correccional. Applying the Indeterminate Sentence Law, the appellants are sentenced to suffer an
indeterminate penalty of from four (4) months and one (1) day of arresto mayor in its medium period as minimum, to
three (3) years of prision correccional in its medium period as maximum, for violation of Section 16 of Rep. Act No. 6425,
as amended.
IN LIGHT OF ALL THE FOREGOING, appellants Amadeo and Connie Tira are found GUILTY beyond reasonable doubt of
violating Section 8, Article II of Rep. Act No. 6425, as amended, and are hereby sentenced to suffer the penalty of
reclusion perpetua, and ORDERED to pay a fine of P1,000,000.00. The said appellants are, likewise, found GUILTY

beyond reasonable doubt of violating Section 16, Article III of Rep. Act No. 6425, as amended, and are sentenced to suffer
an indeterminate penalty of from Four (4) Months and One (1) Day of arresto mayor in its medium period as minimum, to
Three (3) years of prision correccional, in its medium period, as maximum.
No costs.
SO ORDERED.
Vitug, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Carpio-Morales,
Azcuna, and Tinga, JJ., concur.
Davide, Jr., C.J., on official leave.
Puno, J., on official leave.

Footnotes
1

Penned by Honorable Judge Modesto C. Juanson.

Rollo, pp. 17, 66.

Records, p. 1.

The prosecution presented the following witnesses: Celestino B. Corpuz, SPO3 Asedilio Manibog, SPO1 Asterio
Dismaya, Police Inspector Panfilo M. Regis and Police Superintendent Theresa Ann B. Cid.
4

TSN, 15 June 1998, pp. 6-9.

Exhibit "A-3", Records, p. 41

Exhibit "A-2;" Id., at 44.

Id. at 42.

Exhibit "A," Records, p. 43.

10

TSN, 15 June 1998, p. 11.

11

Ibid.

12

TSN, 16 June 1998, p. 6.

13

TSN, 6 January 1999, p.6.

14

TSN, 15 June 1998, p. 13.

15

Exhibit "D," Records, p. 47.

16

Exhibit "A-6," Records, p. 49.

17

TSN, 16 June 1998, p. 4; Exhibit "J."

18

Exhibits "L" and "L-1."

19

Exhibit "E," TSN, 15 June 1998, p. 18.

20

Exhibit "B," Records, p. 45.

21

Exhibit "A-7," Records, p. 50.

22

Exhibit "C-1," Records, p. 46.

23

Exhibit "C," Id. at 46.

24

Records, p. 7.

25

Id. at 1.

26

Id. at 36.

27

Id. at 219.

28

Id. at 82.

29

Appellant Amadeo Tira presented the following: Alfonso Gallardo, Mario Conwi and Amadeo Tira.

30

TSN, 5 August 1998, p. 2.

31

Id. at 6.

32

TSN, 10 August 1998, p. 4.

33

TSN, 5 August 1998, p. 5.

34

Id. at 11.

35

Id. at 8-10.

36

TSN, 11 August 1998, pp. 3-5.

37

Id. at 6.

38

Id.

39

Id. at 9.

40

Id. at 9-10.

41

TSN, 18 August 1998, pp. 5-6.

42

Id. at 12.

43

Id. at 3-4.

44

Id. at 7.

45

Records, p. 107.

46

Id. at 104-106.

47

Id., at 122

48

Id., at 116-121.

49

Id., at 128.

50

Id., at 142.

51

Id., at 150.

52

TSN, 23 March 1999, pp. 3-7.

53

Records, p. 228.

54

Id., at supra.

55

Records, p. 229.

56

Rollo, p. 95.

57

TSN, 15 June 1998, pp. 13-14.

58

TSN, 11 January 1999, pp. 11-12.

59

Exhibit "8."

60

Rollo, p. 47.

61

TSN, 5 April 1999, pp. 10-11.

62

People v. De Guzman, 315 SCRA 573 (2001).

63

People v. Ramos, 186 SCRA 184 (1990).

64

People v. Rice, 131 Cal. Rptr. 330 (1976); People v. Francis, 450 P.2d. 591 ( ).

65

People v. Estrada, 234 44 Cal. Rptr. 165 (1965).

66

People v. Francis, supra; People v. Jackson, 302 12 Cal. Rptr. 748; People v. Rice, supra.

67

People v. Tolliver, 125 Cal. Rptr. 905 (1976).

68

Peope v. Rice, supra.

69

People v. Baluda, 318 SCRA 503 (1999).

70

Rollo, pp. 126-127.

Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION

G.R. No. 103275 June 15, 1994

PEOPLE OF THE PHILIPPINES, petitioner,
vs.
HONORABLE RODOLFO M. BELLAFLOR, Assisting Judge, Branch 28, Regional Trial Court, Mandaue City, and
REUBEN ALBAO, respondents.
The Solicitor General for petitioner.

Lorenzo S. Paylado for private respondent.

BIDIN, J.:
The instant petition for certiorari under Rule 65 of the Rules of Court seeks to annul the resolution issued by respondent
judge Rodolfo M. Bellaflor in Criminal Case No. DU-1805 dated June 26, 1991, containing the following disposition:
WHEREFORE, the court resolves to grant the motion for reconsideration filed by accused being meritorious
and hereby sets aside the decision dated February 6, 1991 and promulgated on May 3, 1991 for being null
and void, and finally, to ACQUIT the accused.
Private respondent Reuben Albao, the accused in Criminal Case No. DU-1805, was charged with the crime of arson
before the Regional Trial Court of Mandaue City, Branch 28, then presided by Judge Willelmo C. Fortun as assisting
judge. Upon arraignment, private respondent pleaded "not guilty". Thereafter, trial on the merits ensued and the parties
rested their case before Judge Fortun.
It appears that on February 4, 1991, Judge Fortun was designated as Assisting Judge for the Regional Trial Court in the
National Capital Judicial Region, to hold office in the Office of the Court Administrator of the Supreme Court in Manila
(Administrative Order No. 10-91, later amended by AO
No. 10-91A dated February 12, 1991, designating Judge Fortun to assist Judge Ricardo Diaz of RTC, Br. 27, NCJR, and to
hold office thereat).
On March 13, 1991, respondent judge Rodolfo M. Bellaflor was assigned as replacement of Judge Fortun and assisting
judge of the Regional Trial Court of Mandaue, Branch 28, wherein the criminal case against private respondent was
pending.
On May 3, 1991, Judge Fortun promulgated his decision dated February 6, 1991, convicting private respondent of the
crime of arson. At the time of promulgation of Judge Fortun's decision, respondent judge was already presiding as
assisting judge of Branch 28 of the Regional Trial Court in Mandaue City. On May 9, 1991 private respondent moved for
the reconsideration of the said decision.
On June 26, 1991, respondent judge issued a resolution referred to above granting private respondent's motion for
reconsideration and acquitted the latter of the crime charged (Rollo, pp. 31-32). In the same resolution, the decision
rendered by Judge Fortun was declared null and void for having been promulgated after said judge had vacated his office
and after being assigned to the Office of the Court Administrator in Manila.

On August 1, 1991, petitioner filed a motion for reconsideration but the same was denied.
In the instant petition, petitioner claims that respondent judge acted with grave abuse of discretion in granting the motion
for reconsideration of private respondent and acquitting the latter. On the other hand, private respondent argues that the
resolution acquitting him of the offense charged has become final and executory and a reconsideration thereof would place
him under double jeopardy.
Private respondent's reliance on the defense of double jeopardy is misplaced. In order that a defendant may successfully
allege former jeopardy, it is necessary that he had previously been (1) convicted or (2) acquitted, or (3) in jeopardy of being
convicted of the offense charged, that is, that the former case against him for the same offense has been dismissed or
otherwise terminated without his express consent, by a court of competent jurisdiction, upon a valid complaint or
information, and after the defendant has pleaded to the charge. (People vs. Asuncion, 208 SCRA 231 [1992], People vs.
Puno, 208 SCRA [1992], Bogo Medellin vs. Son, 209 SCRA 329 [1992]).
Generally, protection against double jeopardy is not available where the dismissal of the case was effected at the instance
of the accused. And there are only two instances where double jeopardy will attach notwithstanding the fact the case was
dismissed with the express consent of the accused. The first is where the ground for the dismissal is insufficiency of the
evidence for the prosecution and the second is where the criminal proceedings have been unreasonably prolonged in
violation of the accused's right to speedy trial (People v. Quizada, 160 SCRA 516 [1988]). None exists in the case at bar.
Admittedly, private respondent had moved for the dismissal of the criminal case filed against him and therefore, the
protective mantle of double jeopardy does not cover him. As pointed out by the Solicitor General:
. . . , private respondent's acquittal was upon his motion and with his express consent. In People v.Villon, 192
SCRA 521, this Honorable Court likewise stated:
However, an appeal by the prosecution from the order of dismissal of the criminal case shall not
constitute double jeopardy if (1) the dismissal is made upon motion, or with the express consent
of the defendant, and (2) the dismissal is not an acquittal or based upon consideration of the
evidence or of the merits of the case; and (3) the question to be passed upon by the appellate
court is purely legal so that should the dismissal be found incorrect, the case would have to be
remanded to the court of origin for further proceedings, to determine the guilt or innocence of the
defendant. (Rollo, pp. 142-143)
Secondly, private respondent cannot successfully seek refuge in the assailed resolution of respondent judge. For one
thing, it was an empty judgment of acquittal a bare adjudication that private respondent is not guilty of the offense
charged anchored on the mere supposition that the decision rendered by Judge Fortun was a nullity. Indeed, respondent
judge acquitted private respondent without expressing the facts and the law on which it is based, as required by Section

14, Article VIII of the Constitution. This can be clearly seen from the resolution issued by respondent judge which we
quote in its entirety, to wit:
RESOLUTION
This is with reference to the motion for reconsideration filed by the accused from the decision dated February
6, 1991 and promulgated only on May 3, 1991 on the following grounds:
1. The decision being prepared and signed by the previous Judge Willelmo Fortun but promulgated only after
he has ceased or relieved as incumbent judge is null and void and may be set aside or modified;
2. The sentence is imposed, being based on paragraph 4,
Art. 322 of the Revised Penal Code, has no binding force and effect because said law has been repealed by
P.D. 1613 and was not revived by P.D. 1744;
3. The law applicable is P.D. 1615 and as such, the issue of ownership of the shed that was burned which
was raised by the accused must be resolved and considered in the new decision.
There was no opposition filed thereto by the prosecution in spite of due notice.
Considering the three grounds invoked by the accused in his motion for reconsideration, the Court is more
engrossed in the 1st ground.
It is undisputed that when the decision was promulgated on May 3, 1991, Judge Willelmo A. Fortun who
rendered the decision was no longer sitting in this Court as he has been transferred and was relieved as
incumbent judge of this court.
It is now firmly established in our jurisprudence that a decision is void if promulgated after the judge who
rendered it had permanently ceased to be a judge of the court where he sat in judgment, thus, a judgment is
a nullity if it had been promulgated after the judge had actually vacated the office and accepted another office
(Lino Luna vs. Rodriguez, 37 Phil. 186); or when the term of office of the judge has ended (Garchitorena vs.
Crescini, 37 Phil. 675); or when he has left the bench (People vs. C.G.
et al., 99 Phil. 786); or after the judge had vacated his post in view of the abolition of his position as Judge-atlarge under Rep. Act 1186 (People vs. Bonifacio So, 101 Phil. 1257 unrep.); or after the cessation or
termination of his incumbency as judge; or a sentence has been set aside where the judge who presided in the
Court of First Instance of Nueva Ecija had been extended on ad interimappointment to the Court of First
Instance of Manila to which position he qualified before the judgment was filed with the Clerk of Court of the
former Court (People vs. Soria, 22 SCRA 948).

The case of bar falls squarely in the legion of cases quoted above. The judge who rendered the decision ceased
to be the judge of that court when the decision was promulgated. On this score alone, the decision in the
above-entitled case which was promulgated in (sic) null and void.
The rest of the grounds are denied for lack of merit as these were considered in the decision sought to be set
aside or reconsidered.
WHEREFORE, the Court resolves to grant the motion for reconsideration filed by the accused being
meritorious and hereby sets aside the decision dated February 6, 1991 and promulgated on May 3, 1991 for
being null and void and finally, to acquit the accused. . . .
SO ORDERED. (pp. 31-32, Rollo)
It is indubitable that the acquittal of private respondent was not based upon consideration of the evidence or of the merits
of the case. Furthermore, it is a requirement of due process that the parties to a litigation be informed of how it was
decided, with an explanation of the factual findings and legal justifications that led to the conclusions of the court (Nicos
Industrial Corp., vs. CA, 206 SCRA 127 [1992]).
Granting, ex gratia argumenti, that the decision of Judge Fortun was not validly promulgated, such invalidity, per se, does
not necessarily operate for the acquittal of the accused. In such instances, the case should have been subjected for new
adjudication based on the evidence already submitted by the parties and for further proceedings conformably with law
(Solis v. Court of Appeals, 38 SCRA 53 [1971]). If at all, it was the precipitate order of respondent judge acquitting private
respondent which should be voided.
Coming now to the main issue, petitioner claims that Section 9, Rule 135 of the Rules of Court allows the promulgation of
a judgment by a judge who has been transferred or assigned to another court of equal jurisdiction. In this regard, it is the
submission of petitioner that even though Judge Fortun had been assigned to the Office of the Court Administrator in
Manila, he still retained the position of judge of the Regional Trial Court. It is petitioner's contention that this is all that is
required for a judge who has been re-assigned and transferred to a court of equal jurisdiction to be able to prepare and
sign a decision in a case totally heard by him and which was argued prior to such transfer or reassignment.
There is merit in the above submission. Section 9 of Rule 135 of the Rules of Court provides that:
Sec. 9. Signing judgment out of the province. Whenever a judge appointed or assigned in any province or
branch of a Court of First Instance (now Regional Trial Court) in a province shall leave the province
by transfer or assignment to another court of equal jurisdiction, or by expiration of his temporary
assignment, without having decided a case totally heard by him and which was argued or an opportunity
given for argument to the parties or their counsel, it shall be lawful for him to prepare and sign his decision in

said case anywhere within the Philippines. He shall send the same by registered mail to the clerk of the court
where the case was heard or argued to be filed therein as of the date when the same was received by the
clerk, in the same manner as if he had been present in court to direct the filing of the judgment. If the case
has been heard only in part, the Supreme Court, upon petition of any of the parties to the case and the
recommendation of the respective district judge, may also authorize the judge who has partly heard the case,
if no other judge had heard the case in part, to continue hearing and to decide said case notwithstanding his
transfer or appointment to another court of equal jurisdiction. (Emphasis supplied)
From the above provision, it is clear that the signing or writing of an order or judgment outside the territorial jurisdiction
of the court wherein the case is pending is authorized only when the judge leaves the province "by transfer or assignment
to another court of equal jurisdiction" or by "expiration of his temporary assignment".
Thus, decisions promulgated after the judge who penned the same had been appointed to and qualified in another office
are null and void (Lino Luna v. Rodriguez, 37 Phil. 186 [1917]). It is settled that to be binding a judgment must be duly
signed and promulgated during the incumbency of the judge whose signature appears thereon (Jimenez vs. Republic, 22
SCRA 622 [1968], Jandayan vs. Ruiz, 95 SCRA 563 [1980]). In single courts like the regional trial courts and the
municipal trial courts, a decision may no longer be promulgated after the ponentehas vacated his office (Consolidated
Bank and Trust Co. vs. IAC, 189 SCRA 433 [1990]).
In the case of Judge Fortun's assignment, however, he was merely transferred from the Regional Trial Court of Mandaue
to act as Assisting judge of another Regional Trial Court, specifically RTC Br. 27, NCJR, Manila. Judge Fortun did not
vacate his office as judge of a Regional Trial Court which would have otherwise nullified his decision rendered in Criminal
Case No. DU-1805. On the contrary, Judge Fortun was merely temporarily assigned to a court of equal jurisdiction,
during which time the decision convicting private respondent was promulgated. Under Section 9, Rule 35 of the Rules of
Court, Judge Fortun still possessed the judicial authority and competence to decide a case fully heard by him and to
promulgate a decision thereon while on temporary assignment to a court of equal jurisdiction in Manila.
In view of the foregoing, we hold that respondent judge committed grave abuse of discretion amounting to lack of
jurisdiction in nullifying the decision rendered by Judge Fortun.
WHEREFORE, the petition is GRANTED. The resolution of respondent judge acquitting private respondent Reuben Albao
is hereby SET ASIDE for being null and void and the decision of Judge Willelmo Fortun convicting accused Albao is
hereby REINSTATED.
SO ORDERED.
Feliciano, Romero, Melo and Vitug, JJ., concur.