G.R. No.

L-62116 March 22, 1990

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
MELQUIADES FERNANDEZ alias "Moding", and FEDERICO CONRADO, defendantsappellants.
The Office of the Solicitor General for plaintiff-appellee.
Eduardo R. Ceniza for defendants-appellants.

was told by Rebecca about the incident, they reported the same to her father, Teofilo, who was
in his store. She also declared that she knew both the accused because Fernandez used to
spray their mango trees while Conrado sold to them a dog sometime in November 1981. 4
Teofilo Malong likewise testified for the prosecution. He stated that upon being informed that his
housemaid Rebecca was raped by the accused, he and his family, together with Rebecca,
proceeded to the office of the INP Police Station of Malasiqui to report the crime and had
Rebecca physically examined by Dr. Wilfredo Claudio of the San Carlos General Hospital in that
same afternoon. He further said that the following day, or on 14 January 1982, he, Amelita and
Rebecca gave their written statements to the police. 5
Submitted as evidence for the prosecution was the "Medico-Legal Certificate" issued by Dr.
Claudio, indicating his findings of "hymenal lacerations at 6, 10, 3 o'clock positions and one dead
sperm cell seen on a slide examined." 6

PADILLA, J.:
Before the Court is Federico Conrado's appeal from the decision * of the Court of First Instance
(now Regional Trial Court) of Pangasinan, Branch I, in Criminal Case No. L-2593 entitled, "The
People of the Philippines vs. Melquiades Fernandez, alias 'Moding' and Federico Conrado"
convicting him and the other accused of the crime of rape and sentencing them each to
suffer inter alia two (2) death penalties.
The criminal complaint dated 2 June 1982 filed before the trial court, reads as follows:
That on or about the 13th day of January, 1982, at 2:00 o'clock in the
afternoon, at barangay Taloy, municipality of Malasiqui, province of
Pangasinan, Philippines, and within the jurisdiction of this Honorable Court,
the above-named accused, conspiring and mutually helping one another,
did, then and there, wilfully, unlawfully, and feloniously have sexual
intercourse with the undersigned offended party Rebecca M. Soriano, a
virgin and 15 years old, by means of force and intimidation and against the
will of the latter. 1
Assisted by counsel, the accused Fernandez and Conrado, uncle and nephew respectively,
pleaded not guilty on arraignment 2 and underwent trial.
Teofilo Malong employed Rebecca Soriano as a househelper since September 1981. Residing
in Teofilo's house were his wife and daughters Amelita and Ma. Theresa. Rebecca Soriano
testified that on 13 January 1982 at about 2:00 o'clock in the afternoon, and after she had just
finished taking a bath and still naked, the two (2) accused, both in short pants, surreptitiously
entered the bathroom. To prevent her from making an outcry, a piece of cloth was tightly tied
around her neck, after which she was forcibly laid down. Conrado held her hands behind her
while Fernandez sexually abused her. She declared that, immediately after Fernandez had
raped her, Conrado in turn went on top of her and likewise succeeded in having sexual congress
with her against her will. She added that, thereafter, Fernandez got a handful of mud near the
bathroom and placed it on her vagina. Thereupon, she ran to the upper floor of the house to
report the tragic incident to Amelita Malong. 3
During the trial, Amelita Malong declared that in that afternoon of 13 January 1982, she was
combing her hair in her room when she saw the approaching Rebecca, naked with smeared
mud on her lower private part and a piece of cloth around her neck. She testified that after she

In defense, the two (2) accused denied any involvement in the offense, both claiming they were
nowhere at the scene of the crime when it was committed.
More particularly, Fernandez claimed he was in his house at Taloy, Malasiqui weaving baskets
when the incident happened. He admitted having been formerly employed by Teofilo for about
two (2) years to spray his mango trees and stated that during the period he was hired as such,
he lived alone in a small hut constructed under a mango tree. 7 Conrado, on the other hand,
alleged that when the crime was committed, he was at Malimpuec, Malasiqui as he was hired to
spray the mango trees of a certain Mr. Overo Bo. Malimpuec is his hometown but he admitted
that he used to go to Bo. Taloy, prior to the incident, as his parents-in-law lived there. 8
In the trial court's decision holding that the guilt of both accused had been established beyond
shadow of any doubt, the following observations and conclusions are made:
As already stated, the defense of both accused is alibi, which is not even
corroborated by a single defense witness. It is well-settled rule that alibi is
the weakest defense that can be resorted to by an accused, as it is easy to
concoct or fabricate. . . .
. . . the alibi of both accused can not prevail over their positive
identification by the prosecution witnesses (especially by complainant victim
of rape, Rebecca Soriano) as the perpetrators of the crime charged, they
having testified in a clear, straightforward, positive, truthful, and convincing
manner, with no motive to fabricate this serious charge of rape or falsify the
truth. The alibi of both accused can not also be given credence or weight,
considering that at the time of the rape, accused Melquiades Fernandez
was in his house at Bo. Taloy, which is just 150 meters away from the house
of the Malongs, where Rebecca Soriano was raped; and accused Federico
Conrado was at Bo. Malimpuec, which is only 9 kms. away from Bo. Taloy,
where Rebecca was raped that afternoon of January 13, 1982. The
evidence disclose that said distance of 9 kms. can be negotiated in only
about 30 minutes by motorized vehicle, on good road connecting the 2
barrios.
xxx xxx xxx

The clear, positive, straightforward, and convincing testimony of rape victim

Rebecca Soriano, as well as her immediate reporting of the incident to the
police authorities, just 30 minutes or so after she was raped that afternoon
of January 13, 1982 and her giving of a sworn statement (Exh. A) on
January 14, 1982 just the day after she was raped) which
was corroborated by the statements on the same date (January 14, 1982)
by prosecution witnesses Amelita Malong and Teofilo Malong, more than
convinces and satisfies this Court that the came charged was, in truth and
fact, perpetrated by both accused. 9
Hence, the judgment of conviction, now the object of this appeal, the dispositive part of which
reads as follows:
WHEREFORE, the Court finds each of the accused MELQUIADES
FERNANDEZ, alias "Moding" and FEDERICO CONRADO, guilty beyond
reasonable doubt of two crimes of rape, aggravated by cruelty or ignominy,
and, pursuant to law, hereby sentences each of them to suffer two (2)
penalties of death, to indemnify the aggrieved party, Rebecca M. Soriano, in
the amount of P12,000.00 as moral damages, without subsidiary
imprisonment in case of insolvency, and to pay the costs. 10
In an effort to reduce the imposed penalty of death to reclusion perpetua (life imprisonment),
without disproving the charges against them, the two (2) accused assigned the following errors:
1. THE LOWER COURT ERRED IN CONVICTING ACCUSEDAPPELLANTS FOR TWO (2) CRIMES OF RAPE.
2. THE LOWER COURT ERRED IN HOLDING THAT THE COMMISSION
OF THE RAPE WAS ATTENDED BY THE AGGRAVATING
CIRCUMSTANCE OF CRUELTY OR IGNOMINY.
3. THE LOWER COURT ERRED IN SENTENCING EACH OF THE
ACCUSED-APPELLANTS TO SUFFER TWO (2) PENALTIES OF
DEATH. 11
In the light, however, of the 1987 Constitution, specifically, Section 19(1), Article III thereof, under
which a death penalty already imposed is reduced to reclusion perpetua, Fernandez withdrew
his appeal. 12 The lone appellant therefore is Conrado who insists on his appeal, notwithstanding
the advice of his counsel de officio to discontinue the appeal allegedly on the ground that "it has
become moot and academic." 13
This Court nonetheless proceeded to consider accused-appellant's arguments for the sake of
verifying the correctness of the sentence imposed. We find no merit in the appeal.
First Assignment of Error
The trial court is accused of violating the rule against duplicity of offenses in that, the accused
were convicted for two (2) crimes of rape even when under the criminal complaint against them,
there is only one (1) crime of rape alleged. The rule invoked in Section 13, Rule 110 of the Rules
of Court which states that there should be only one (1) offense charged in a criminal complaint

or information, the purpose of which is to afford the defendant a necessary knowledge of the
charge so that he may not be confused in his defense. But it is likewise the rule that if ever
duplicity of offenses is committed, the same constitutes a ground for a motion to quash the
complaint; and failure of the accused to interpose the objection constitutes waiver. 14 Conrado,
after he had been convicted by the court a quo, can no longer assail its judgment by raising this
issue. Neither can he claim, as he now does, that he was denied the information that he was to
be tried for two (2) separate crimes of rape. The acts complained of, as constituting the offenses,
were stated in the 2 June 1982 complaint in ordinary and concise language that any person of
common intelligence would be able to understand and thereby know what acts he was to defend
himself against.
The imposition on each of the accused of the penalty corresponding to two (2) crimes of rape is
proper, because of the existence of conspiracy. As clearly found by the trial court:
Both accused have, obviously, conspired and confederated to commit the
crime, considering that they entered the bathroom where Rebecca was,
together and at the same time. Accused Fernandez then tied her with a
piece of cloth tightly around her neck, while accused Conrado held her
hands placing them behind her body, to prevent her from struggling or
resisting. Then after accused Fernandez had raped Rebecca, accused
Conrado raped her. Both accused, thereafter, fled from the scene of the
crime together and at the same time. All these circumstances show beyond
shadow of any doubtconspiracy on the part of both accused, which
renders each of them liable for two (2) crimes of rape, . . . 15
In a long line of decided cases, it has been held by this Court that in multiple rape,
each defendant is responsible not only for the rape personally committed by him, but
also for the rape committed by the others, because each of them (accused)
cooperated in the commission of the rape perpetrated by the others, by acts without
which it would not have been accomplished. 16
Second Assignment of Error
The trial court is correct in appreciating the aggravating circumstance of ignominy because of
the greater perversity displayed by the offenders. The testimony of the examining physician that
he did not find mud on the victim's private organ, does not necessarily belie the latter's
asseveration that the accused "plastered" (in the words of the lower court) mud on her private
part. It is worthwhile mentioning that the victim was examined and treated by Dr. Claudio at 3:55
p.m. or about almost two (2) hours after the rape was committed. 17 Given this circumstance, the
absence of mud in the victim's private part when she was examined by the physician, may be
attributed to the possibility that the mud washed or fell off even before the victim left the house
for her physical examination. Moreover, Rebecca's testimony was corroborated by that of
Amelita Malong who swore that she saw mud smeared on Rebecca's private part when she
(Amelita) saw Rebecca right after the incident. It is also difficult to conceive why the offended
party, young as she was, and with a chaste reputation, would go to the extent of fabricating this
portion of her testimony notwithstanding the consequent humiliation on her person and disgrace
on her womanhood. We cannot but agree with the trial court's finding that the offense was
aggravated by ignominy. We are of the opinion, however that the word "cruelty" used in the
dispositive portion of the judgment, to describe an alternative aggravating circumstance, is
unnecessary. The act of "plastering" mud on the victim's vagina right after she was raped, is
adequately and properly described as "ignominy" rather than "cruelty or ignominy."

Third Assignment of Error

Lastly, the original death sentence was correctly imposed pursuant to the provisions of the
Revised Penal Code, namely, Article 335 which states that when the crime of rape is committed
by two (2) or more persons, the penalty shall be reclusion perpetua to death, and Article 63,
which provides that when the penalty prescribed is composed of two (2) indivisible penalties (as
in this case) and the offense is attended by an aggravating circumstance, the greater penalty
shall be applied.
However, since the original death penalties imposed by the trial court are no longer imposable
under the present Constitution and are reduced to reclusion perpetua, the sentence on appellant
Federico Conrado has to be reduced to two (2) penalties of reclusion perpetua. 18 But the
indemnity he has to pay to the victim must be increased to P20,000.00 in line with prevailing
jurisprudence.
WHEREFORE, the appealed judgment, as above modified, is AFFIRMED. With costs against
the accused-appellant Federico Conrado.
SO ORDERED.
Melencio-Herrera, Paras, Sarmiento and Regalado, JJ., concur.

matter. He decided not to go home as accused-appellant and his companion went in the
direction of their house. Mario's mother was fetched from their house and told what had
happened to Rogelio and Rodolfo. The three then reported the incident to the barangay captain
who lost no time in accompanying them to the police in Umingan, Pangasinan. 5

G.R. No. 119380

August 19, 1999

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
FEDERICO LOPEZ @ AMBOY LOPEZ, accused-appellant.
MENDOZA, J.:
This is an appeal from the decision1 of the Regional Trial Court of Pangasinan (Branch 52),
finding accused-appellant guilty of two counts of murder and one count of frustrated murder and
ordering him to pay a total of P204,300.00 in damages.1wphi1.nt
The Information2 against accused-appellant charged:
That on or about the 15th day of November, 1991, in the evening, at Brgy.
Nancalabasaan, municipality of Umingan, province of Pangasinan, New
Republic of the Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused together with one John Doe, whose
identity has not yet been established, armed with a short firearm, with intent
to kill, with treachery and evident premeditation, did then and there willfully,
unlawfully and feloniously attack, assault and shoot ROGELIO SELDERA
and RODOLFO PADAPAT which caused their immediate death and on the
same occasion and with treachery and evident premeditation wound MARIO
SELDERA on his breast to the damage and prejudice of the heirs of Rogelio
Seldera and Rodolfo Padapat and also to the damage and prejudice of said
Mario Seldera.

Mario was investigated by CPL Jose Almerol. Afterwards, he was taken to the Umingan
Medicare Hospital where he was treated by Dr. Suller-Santos. The boy suffered three gunshot
wounds on the back, right side, each wound measuring about .5 x 1 cm. The wounds were
located vertically, the first about three centimeters from the second and the latter about two
centimeters from the third.6 Dr. Santos issued a medical certification (Exh. E) and referred Mario
to the Eastern Pangasinan District Hospital for x-ray examination.
Mario positively identified accused-appellant as the assailant. He testified that accused-appellant
wore a white, long-sleeved shirt, blue jeans and white slippers, while his companion had a black
t-shirt, black jeans and brown slippers on.7 He was able to recognize accused-appellant and
notice the type and color of the latter's clothes and those of the latter's companions because the
moon was brightly shining. He knew accused-appellant very well, because the latter used to
frequent their house in Nancalabasaan to play cards with his father. In addition, Mario used to
buy cigarettes from accused-appellant's store. As to the gun used, he stated that it was similar to
those used by security guards. When asked whether his father and accused-appellant had a
quarrel on November 15, 1991, Mario said he did not know.8
Dr. Thelma C. Busto, the rural health physician of Umingan, Pangasinan, examined the bodies
of Rogelio Seldera and Rodolfo Padapat on November 16, 1991.
Dr. Busto described Rogelio's wounds as follows:9
1. Gunshot wound frontal area of head as point of entrance with exit at the
occipital area, . . . thru and thru.
2. Multiple gunshot wounds in the chest and neck (9).
Her post-mortem report on Rodolfo Padapat stated:10
Gunshot wound in the head right parieted area of head as entrance, no exit.

The prosecution presented evidence showing the following: At around 6:00 in the evening of
November 15, 1991, Mario Seldera, 11, his father Rogelio Seldera, and his cousin Rodolfo
Padapat worked in the riceland of a certain Lagula in Barangay Nancalabasaan, Umingan,
Pangasinan. It was harvest time and the three were hired to bundle the palays stalks which had
been cut. As it was a moonlit night, the three worked in the field until around 9:00 when they
started for home taking a trail alongside the Banila river. The trail is about two feet wide only, and
so the three walked along the trail single file with Rogelio, being the oldest, leading the way,
followed by his son Mario and by Rodolfo who was last. As they reached a sloping portion in the
trail, accused-appellant Federico Lopez appeared armed with a shotgun. Accused-appellant had
a companion, a dark man. He was unarmed.3 Without uttering a word, accused-appellant fired at
the three, who slumped forward, face down. Accused-appellant's companion went near the
bodies of the victims and rolled them over with his foot. Satisfied that the victims were dead,
accused-appellant and his companion left.4

According to Dr. Busto's reports, the cause of death of the victims was cerebral hemorrhage and
cardiorespiratory arrest secondary to gunshot wounds. Testifying, she said that the gunshot
wounds were alike in size and nature. Although she could not tell the type of firearm used nor
determine the trajectory of the wounds, she said the wounds could have been caused by a
shotgun.11

However, Mario, the youngest in the group, was not killed, although he had been wounded in the
back. As soon as accused-appellant and his companion had left, Mario stood up and, crying, he
walked to the house of his uncle, Alfredo Padapat, the father of Rodolfo, and reported the

Accused-appellant's defense was alibi. He claimed that at around 5:00 in the afternoon of
November 15, 1991, he was in the house of his uncle, Asterio Sonaco, in Caurdanetaan,
another barangay of Umingan in Pangasinan, about three kilometers from Nancalabasaan. He

Leonida Seldera, widow of the deceased Rogelio, and Alfredo Padapat, father of Rodolfo,
testified on the civil aspect of the case. The prosecution was precluded from inquiring from these
witnesses about events which transpired in the evening of November 15, 1991 because they
were present during the testimony in-chief of Mario Seldera. The defense counsel moved for
their exclusion but the prosecution manifested that they would only testify with regard to the civil
aspect of the case.

had a round of drinks with four friends12 over a dish of dog meat. At 11:00 that night, the party
broke up and accused-appellant went home. He claimed that it was dark that night and that
during the party, they used a lamp for illumination.13

Costales corroborated Mario Sonaco's testimony that accused-appellant's house is less than two
kilometers from the scene of the crime. When asked about the condition of the night on
November 15, 1991, he stated that it was so dark that the policemen had to use flashlights. 26

Accused-appellant stated that he has no previous quarrel with the two deceased nor with Mario
Seldera. Nor had he been to the house of Rogelio Seldera. As to the clothes he wore on the
night of November 15, 1991, he claimed he had a pair of maong pants and a t-shirt on, though
he could not remember the color of the latter.14

Corroborating accused-appellant's claim that it was pitch dark on the evening of November 15,
1991, Lorna Gonzales, a resident of Barangay Nancalabasaan, whose house is about 100
meters from the Seldera household, testified that at around 9:00 in the evening of that day, she
heard some wailing and weeping in the house of the Selderas, and that she and her husband
learned that Rogelio Seldera had died. However, they did not go out of their house because it
was allegedly very dark, and she was afraid that her husband might be implicated in the killing.
On cross-examination, Gonzales disclosed that her house is surrounded by big camachile trees.
When asked whether these could obstruct the light from the moon, she only said: "It [was] dark,
sir."27

On cross-examination, accused-appellant admitted that he was known as "Amboy" Lopez and

that although a barriomate, Rodrigo Lopez, was also called "Amboy," the latter was known more
as "Thunder" Lopez. He also said that he had a farm in Nancalabasaan but he allegedly had not
gone to the barangay proper as he only pass by the eastern part thereof.15
In his counter-affidavit,16 accused-appellant did not mention anything about cooking dog meat
during the party in Asterio Sonaco's house on November 15, 1991 and that he went home at
8:00 in the evening. Accused-appellant gave no explanation why in his testimony in court he said
he went home at 11:00 in the evening and that they killed a dog and made its meat into a dish.17
The defense presented Daniel Fortunato and Mario Sonaco to corroborate accused-appellant's
testimony on the events which transpired in the evening of November 15, 1991. Daniel
Fortunato testified that he is a barangay councilman of Caurdanetaan, Umingan, Pangasinan.
He claimed that from 4:00 in the afternoon to 11:00 in the evening of November 15, 1991, he
was with accused-appellant in a party where there were about thirteen18 other people, drinking
gin and eating cooked dog meat. Fortunato said he and Mario Sonaco helped accused-appellant
home as the latter was too drunk. Accused-appellant was allegedly received by his wife. 19
On cross-examination Fortunato admitted that he was not always watching accused-appellant
during the party and that it was possible that the latter may have slipped out. With regard to the
distance of Caurdanetaan to the Banila river, where the incident happened, Fortunato estimated
it to be about 1 1/2 kilometers, which can be covered in 20 minutes by walking and in about 11
minutes by running. Fortunato testified that accused-appellant had the same height and body
build as Rodrigo "Thunder" Lopez although the latter was darker.20
Mario Sonaco, for his part, claimed that there were less than ten12 people present in the house of
his brother, Asterio Sonaco, in the evening of November 15, 1991. However, he corroborated
Fortunato's testimony that he and Fortunato took accused-appellant home at 11:00 o'clock that
night because the latter was drunk.22
On cross-examination, Sonaco admitted that accused-appellant is his nephew.23 He estimated
that accused-appellant's house was less than two kilometers from the Banila river. He reiterated
that by taking the barangay road, the distance could be covered in 30 minutes on foot but if one
runs or uses the shorter route through the ricefields, the travel time would be less. 24
The defense also presented Juanito Costales, barangay captain of Caurdanetaan, who testified
that around 12:00 midnight of November 15, 1991, three policemen went to his house to inform
him that accused-appellant was a suspect in a killing in the neighboring barangay of
Nancalabasaan. He said he accompanied the authorities to accused-appellant's house and that
when the latter came out, he smelled of liquor. When asked by the policemen where he had
been, accused-appellant allegedly answered he had been to a drinking party held that afternoon.
Apparently finding nothing unusual, Costales and the policemen left.25

On January 20, 1995, the trial court rendered judgment, the dispositive portion of which reads: 28
WHEREFORE, in virtue of the foregoing disquisitions accused Federico
Lopez @ Amboy Lopez is hereby declared GUILTY of the crime of Double
Murder With Frustrated Murder beyond reasonable doubt and is hereby
sentenced to a penalty of Reclusion Perpetua relative to the treacherous
killing of Rogelio Seldera, and to pay the heirs of the late Seldera the sum of
Fifty Thousand Pesos (P50,000.00) as compensatory damages, Thirty
Thousand (P30,000.00) as moral damages, likewise sentences the same
accused Amboy Lopez of the penalty of Reclusion Perpetua for the
treacherous killing of Rodolfo Padapat, and to pay the heirs of the late
Padapat the sum of Fifty Thousand Pesos (P50,000.00) as compensatory
damages, and the sum of Thirty Thousand Pesos (P30,000.00) as moral
damages, and to pay civil liability or actual expenses incurred during the
wake and burial and other expenses incurred relative to the interment of
both deceased in the amount of Fourteen Thousand Pesos (P14,000.00)
payable to the heirs of both victims, and finally sentences accused Amboy
Lopez for the crime of Frustrated Homicide for the injuries sustained by
victim Mario Seldera, with a penalty of Prision Mayor from six (6) years and
one (1) day to twelve (12) years, and to pay the widow of the late Rogelio
Seldera the sum of Twenty Thousand Pesos (P20,000.00) as moral
damages, Ten Thousand Pesos (P10,000.00) exemplary damages, and
P300.00 as actual damages in the form of medical expenses. With cost de
officio. Bailbond cancelled.
SO ORDERED.
In this appeal, accused-appellant alleges that:29
ASSIGNMENT OF ERRORS
(1) THE HONORABLE COURT ERRED IN GIVING FULL FAITH AND
CREDIT TO THE TESTIMONY OF MARIO [S]ELDERA;
(2) THE HONORABLE [COURT] ERRED IN NOT CONSIDERING THE
TESTIMONIES OF DEFENSE WITNESSES LORNA GONZALES AND
BARANGAY CAPTAIN JUANITO COSTALES AS TO THE CONDITION OF
THE NIGHT;

(3) THAT THE HONORABLE COURT ERRED IN NOT CONSIDERING THE

DEFENSE OF ALIBI PUT UP BY THE ACCUSED;
(4) THE HONORABLE COURT ERRED IN NOT CONSIDERING THE
EXISTENCE OF TWO PERSONS SPORTING THE NAME OF AMBOY
LOPEZ.
First. Accused-appellant questions the credibility of Mario Seldera. It is unbelievable, he
contends, that this witness observed even minute details, such as the length and color of the
shirts worn by accused-appellant and his companion, the color of their slippers, and the type of
firearm used by accused-appellant, considering that the shooting took place suddenly and
unexpectedly.30
The contention has no merit. As the Solicitor General points out, Mario Seldera went through a
harrowing experience. In fact, he suffered three gunshot wounds and was given up for dead by
the assailant. The memory of the massacre was etched deeply in his memory. As this Court has
many times held, the natural reaction of victims of criminal violence is to strive to notice the
appearance of their assailants and observe the manner the crime was committed.31
Indeed, Mario's statement that accused-appellant used a shotgun in shooting him and his
companions on November 15, 1991 is confirmed by the fact that the wounds suffered by the
victims were similar to those caused by a shotgun fired at close range. Rogelio Seldera, who
was less than three meters away from accused-appellant, had his head practically blown off. On
his neck and chest were nine wounds, probably caused by pellets from the blast. Mario, who
was behind his father, sustained three vertical, relatively small wounds on the right side of his
back. The wound on Rodolfo's head, on the other hand, although without an exit, is similar in
size to that suffered by Rogelio Seldera on the head.
It is argued that Mario could not have recognized accused-appellant because it was very dark on
the night of November 15, 1991.32 This is not true. According to the Philippine Atmospheric
Geophysical and Astronomical Services Administration, there was 60% illumination from the
moon over Umingan, Pangasinan at 9:00 in the evening of November 15, 1991. In People
v.Pueblas,33 we held that a moon disc 62% full provides sufficient illumination in sustaining the
identification of the accused and convicting him of murder. In other cases, we held that the
illumination from the moon34 and even from the stars35 is fair and sufficient to identify
perpetrators of crimes.
The Solicitor General observes that Mario had been walking under the light of the moon for
sometime before the incident so that his eyes had sufficiently adjusted to the natural illumination,
so as to enable him in identifying the accused-appellant. 36Indeed, if accused-appellant
recognized his intended victims, there is no reason why the survivor from the ambush could not
have also recognized him.
In the alternative, it is contended that even if there was fair illumination from the moon on the
night in question, nonetheless Mario Seldera could have mistaken accused-appellant for
Rodrigo "Thunder" Lopez.37
Again the contention is without merit. Rodrigo "Thunder" Lopez may also be called "Amboy"
Lopez in the barangay, but it was not by name that Mario made his identification. In fact, Rodrigo
"Thunder" Lopez was not even a suspect in the ambush of Mario and the latter's companions.
As already stated, Mario identified accused-appellant based on this witness' knowledge of
accused-appellant. The latter was a frequent visitor in their house and this witness used to buy
from accused-appellant's store. Moreover, Rodrigo Lopez is darker and shorter than accusedappellant.

Indeed, Mario Seldera was very positive that it was accused-appellant who shot them. He
identified accused-appellant as their assailant upon reaching Alfredo Padapat's house. He again
pointed to accused-appellant as the person who shot them when his mother arrived and again
when they reported the incident to the police that same night. The rule is that identification of the
accused, when there is no improper motive for making it, should be given full faith and credence.
In the case at bar, no reason has been shown why Mario should falsely implicate accusedappellant.
Second. It is claimed that accused-appellant was in his uncle's house in Caurdanetaan at the
time of the incident. The defense of alibi will be sustained where the evidence of the prosecution
is weak.38 However, accused-appellant himself said that Caurdanetaan is just three kilometers
from Nancalabasaan. On the other hand, his witnesses39 themselves testified that accusedappellant's house is less than two kilometers from the scene of the crime and that the distance
could be negotiated in 30 minutes by foot and even less if one runs. For alibi to prosper,
accused-appellant must show that it was physically impossible for him to be at the scene of the
crime at the time of its commission.40 Thus, assuming that he was indeed at the party in Asterio
Sonaco's house, he could have easily slipped out of the party, come back to the group, and then
be at home in time for the police to find him there.
Moreover, as already stated, accused-appellant was positively identified by Mario as the
triggerman. It is settled that the defense of alibi cannot prevail over positive identification of the
accused by an eyewitness who has no improper motive to falsely testify.41 The Court finds no
reason to doubt the veracity of Mario's testimony who was only 11 when he witnessed the
gruesome killing of his father and cousin and barely 13 when he took the stand. He could
possibly have no other motive but to tell the truth about what he had observed.
Accused-appellant's alibi is not only weak; it is also filled with inconsistencies. He said in his
counter-affidavit that he went home at 8:00 in the evening of November 15, 1991, a full hour
before the shooting occurred but, in his testimony in court, he said he went home at 11:00 in the
evening. His witnesses, Daniel Fortunato and Mario Sonaco, said there were at least ten
persons in the party at the house of Asterio Sonaco on November 15, 1991, but accusedappellant stated that there were only five.
The Court is convinced that it was accused-appellant who shot Mario Seldera, Rogelio Seldera,
and Rodolfo Padapat on November 15, 1991. It is immaterial that there is no proof of motive for
the attack because this becomes significant only where the identity of the assailant is in serious
doubt.42 But in this case, the accused has been positively identified.
Third. The Information is formally defective as it charged more the one offense in violation of
Rule 110, 13 of the Revised Rules of Court. However, because of his failure to file a motion to
quash, accused-appellant is deemed to have waived objection based on the ground of
duplicity.43 The dispositive portion of the trial court's decision finds accused-appellant guilty of
"Double Murder with Frustrated Murder," but sentences him for two separate counts of murder
and one count of frustrated homicide. We hold that accused-appellant was guilty of two counts of
murder and one count of attempted murder. Under Art. 48 of the Revised Penal Code, a
complex crime is committed only "when a single act constitutes two or more grave or less grave
felonies." As the victims in this case were successively shot by accused-appellant with a
shotgun, each shot necessarily constitutes one act. Accused-appellant should thus be held liable
for three separate crimes.
The lower court correctly appreciated treachery as having qualified the killing of Rogelio Seldera
and Rodolfo Padapat. The essence of treachery is the swift and unexpected attack on an
unarmed victim without the slightest provocation on the part of the victim.44 Here, it was clearly
established that the victims, when shot, were unarmed and were peacefully walking along a trail

when accused-appellant suddenly opened fire on them. The swiftness of the shooting left them
helpless to put up any form of defense.
The lower court however erred in convicting accused-appellant of frustrated homicide for the
injuries inflicted on Mario Seldera. Although it correctly appreciated the intent to kill, which can
be inferred from the weapon used, the proximity of the assailants and the location of the injuries,
it should have appreciated treachery in the attack. Treachery attended the shooting not only of
Rogelio Seldera and Rodolfo Padapat but also of Mario Seldera.
But, with respect to Mario Seldera, the crime was not frustrated, but only attempted murder. This
is the gist of our rulings in several cases.45 For the injuries sustained by Mario Seldera were not
life threatening. Dr. Santos, the attending physician, certified that Mario's injuries would heal in
seven days.46 In fact, he was not confined at the hospital. He was referred to the Eastern
Pangasinan District Hospital only for x-ray examination of his injuries. There is no evidence that
he was given further medical attention by this hospital other than what Dr. Santos had
requested.
Fourth. Certain modification should also be made with respect to the award of damages. The
lower court awarded P50,000.00 for compensatory damages and P30,000.00 for moral
damages to each set of heirs of Rogelio Seldera and Rodolfo Padapat in addition to the
P14,000.00 actual damages to be divided among them. The P50,000.00 should be treated as
civil indemnity, which under prevailing jurisprudence, 47 is fixed at P50,000.00, to be awarded
without need of further proof other than the death of the victim. Further, in accordance with our
rulings in other cases,48 the amount of moral damages should be increased to P50,000.00.

cpacity

expectancy

income

gross annual income)

(x)
Life expectancy is determined in accordance with the formula 53
2/3 x [80 - age of the deceased]
Accordingly, Rogelio Seldera's unearned income is:
2[80 - 43]
x

x P13,000 P6,500
3

=
=

24.67 x P6,500
P160,355

Rodolfo Padapat's unearned income is:

2[80 - 25]

With regard to the amount of actual damages, Leonida Seldera and Alfredo Padapat testified
that they could not present any receipt for their funeral expenses because the funeral agency
refused to issue one in view of an unpaid balance. They have likewise allegedly lost the receipts
for their joint expenses for the wake. Under the Civil Code (Art. 2199), a party is entitled to
compensation only for such pecuniary loss suffered by him as he has duly proved. However,
under Art. 2224, temperate damages may be recovered if it is shown that such party suffered
some pecuniary loss but the amount thereof cannot, from the nature of the case, be proved with
certainty.49 As the heirs of the two victims clearly incurred funeral expenses, an award of
P5,000.00 for each set of heirs by way of temperate damages should be awarded, to be divided
equally by the heirs of Seldera and Padapat.

x P5,000 P2,500
3

=
=

36.67 x P2,500
P91,675

WHEREFORE, the decision of the Regional Trial Court of Pangasinan (Branch 52) is
AFFIRMED with the following modifications:

For the injuries sustained by Mario Seldera, the court a quo awarded P10,000.00 moral
damages, P20,000.00 exemplary damages and P300.00 actual damages for medical expenses.
The first item should be disallowed for lack of evidence to support it. The second item should
likewise be deleted as under Art. 2230 of the Civil Code, exemplary damages are awarded when
the crime is committed with one or more aggravating circumstances. There was no aggravating
circumstance in this case other than the qualifying circumstance of treachery. As to the actual
damages of P300.00, as the prosecution failed to present any documentary proof for such, its
award is improper. However, the amount of P200.00 as temperate damages may be made in its
place.

1. For the death of Rogelio Seldera, accused-appellant is found guilty of murder and is
sentenced to reclusion perpetua and to pay the heirs of the deceased Rogelio Seldera the
amount of P50,000.00 as indemnity, P50,000.00 as moral damages, P5,000.00 as temperate
damages, and P160,355.00 as unearned income.

Actual damages representing unearned income of Rogelio Seldera and Alfredo Padapat should
also be awarded. Leonida Seldera testified that her husband was 43 years old when he was
killed and that he earned P13,000.00 a year as a farmer.50On the other hand, Alfredo Padapat
testified that his son, Rodolfo, was then 25 years old when he died and that he was earning
P5,000.00 a year also as a farmhand.51 The formula for the computation of unearned income
is:52

3. For the injuries of Mario Seldera, accused-appellant is found guilty of attempted murder and is
sentenced to 4 years and 2 months of prision correccional, as minimum, to 10 years of prision
mayor, as maximum, and to pay Mario Seldera P200.00 as temperate damages.1wphi1.nt

net earning

life

gross annual

less

living expenses (50% of

2. For the death of Rodolfo Padapat, accused-appellant is found guilty of murder and is
sentenced to reclusion perpetua and to pay the heirs of the deceased Rodolfo Padapat the
amounts of P50,000.00 as civil indemnity, P50,000.00 as moral damages, P5,000.00 as
temperate damages, and P91,675.00 as unearned income.

SO ORDERED.
Bellosillo, Quisumbing and Buena, JJ., concur.

(b) Any person violating the provisions of this section shall be punished by a fine not
exceeding two hundred pesos, or by imprisonment for a period not exceeding six
months, or by both such fine and imprisonment, in the discretion of the court.

G.R. No. L-3851 December 17, 1908

THE UNITED STATES, plaintiff-appellee,
vs.
CHAN TOCO, defendant-appellant.
J.N. Wolfson, for appellant.
Attorney-General Araneta, for appellee.

Bishop, in his work on Criminal Procedure (Vol. I, paragraphs 631-645), discusses the question
of negativing exceptions at length. He says that the older writers, with whom we may now class
Chitty, present the distinctions without the nicer shades discoverable in the latter decisions,
Chitty being of the opinion that, were this excusing matter stands in clauses separate from the
main provisions, "it is not necessary to state in the indictment that the defendant does not come
within the exceptions, or to negative the provisos it contains. Nor is it even necessary to allege
that he is not within the benefit of its provisos, though the purview should expressly notice them,
as by saying that none shall do the act prohibited, except in the cases thereinafter excepted. For
all these are matters of defense, which the prosecutor need not anticipate, but which are more
properly to come from the prisoner." But Bishop insists that the correct doctrine is that "if
exceptions are in the enacting clause, it will be necessary to give them, in order that the
description of the crime may in all respects correspond with the statute," and amplifies this rule
by laying down the following propositions:
First. The negative of all exceptions in the enacting clause should be averred, unless
such in form and substance that an affirmative offense will appear without.

CARSON, J.:

Second. A negative descriptive of the offense must be alleged.

The accused in this case was charged with an infraction of section 4 of Act No. 1461 of the
Philippine Commission, in that on the 23rd day of October, 1906, he smoked opium in the store
of a Chinaman named Liangco, in the municipality of Santo Nio, in the province of Samar,
without being duly registered, and without having secured a certificate to that effect, as provided
in section 4 of the Act. The evidence of record fully sustains the findings of the trial court, and
establishes the guilt of the accused beyond a reasonable doubt, and we find no error in the
proceedings prejudicial to the rights of the appellant.

Third. However mutually located are the provisions of a statute, an indictment thereon,
as on the common law, must aver all negatives necessary to show affirmatively an
offense.

Counsel for the accused demurred to the information on the ground that it failed to allege that
the use of opium had not been prescribed as a medicine by a duly licensed and practicing
physician; and in support of his contention that the demurrer filed in the court was improperly
overruled, counsel for the appellant insists that the statutory offense defined in section 4 of Act
No. 1461, of which the appellant was convicted, was not sufficiently alleged in the information,
and a formidable array of authorities have been cited holding that, where the enacting clause in
a statute describes an offense with certain exceptions, the exceptions should be negative in the
indictment, complaint or information.
Section 4 of Act No. 1461 is as follows:
(a) Except one prescribes as a medicine by a duly licensed and practicing physician, it
shall be unlawful for any person to smoke, chew, swallow, inject, or otherwise
consume or use opium in any of its forms unless such person has been duly
registered as provided in section two hereof and has secured the certificate therein
prescribed. Except when prescribed as a medicine by a duly licensed and practicing
physician, no registered confirmed user of opium shall, smoke, chew, swallow, inject
or otherwise use or consume opium except in his own residence.

Fourth. As on the common law, so on a statute, the indictment need not negative
matter of defense.
Fifth. In general, and subject to exceptions growing out of doctrines already stated, an
exception or proviso which is not in the enacting clause, whether in the same section
with it or not, need not be negatived.
Sixth. Where there is in the enacting clause a reference to an exception or proviso
more fully stated in a separate clause or statute, the indictment is required to negative
it or not, according as the form of the expression and the nature of the matter render
the latter an element in the prima facie offense or in the defense.
Seventh. A negative not required by law may be rejected as surplusage.
Eight. A negative averment need not be so minute, or so nearly in the statutory words,
as must an affirmative one; but any negation in general terms, covering the entire
substance of the matter, will suffice.itc-alf
It must be admitted that, with varying modifications, the doctrine as to negativing exceptions,
thus laid down by Bishop, appears to be the accepted doctrine as expressed in the opinion of
most of the courts of last resort of the various States of the United States, but the Supreme
Court of the United States in the case of U.S. vs. Cook (84 U S. Rep., 168, 173), modifies this
doctrine in the following terms:

Where a statute defining an offense contains an exception in the enacting clause of

the statute which is so incorporated with the language defining the offense that the
ingredients of the offense can not be accurately and clearly described if the exception
is omitted, the rules of good pleading require that an indictment founded upon the
statute must allege enough to show that the accused is not within the exception; but if
the language of the section defining the offense is so entirely separable from the
exception that the ingredients constituting the offense may be accurately and clearly
defined without any reference to the exception, the pleader may safely omit any such
reference, as the matter contained in the exception is matter of defense and must be
shown by the accused.
Offenses created by statute, as well as offenses at common law, must be accurately
and clearly described in an indictment, and if they can not be, in any case, without an
allegation that the accused is not within the exception contained in the statute defining
the offense, it is clear that no indictment founded upon the statute can be a good one
which does not contain such an allegation, as it is universally true that no indictment is
sufficient if it does not accurately and clearly allege all ingredients of which the offense
is composed.
With rare exceptions, offense consists of more than one ingredient, and in some cases
of many, and the rule is universal that every ingredient of which the offense is
composed must be accurately and clearly alleged in the indictment, or the indictment
will be bad, and may be quashed on motion, or the judgment may be arrested, or be
reversed on error.
Text writers and courts of justice have sometimes said that if the exception is in the
enacting clause the party pleading must show that accused is not within the exception,
but where the exception is in a subsequent section or statute, that the matter
contained in the exception is matter of defense and must shown by the accused.
Undoubtedly that the rule will frequently hold good, and in many cases prove to be a
safe guide in pleading, but it is clear that is not universal criterion, as the words of the
statute defining the offense may be so entirely separable from the exception that all
ingredients constituting the offense may be accurately and clearly alleged without any
reference to the exception.lawphil.net
Cases have also arisen, and others may readily be supposed, where the exception,
though in a subsequent clause or section, or even in subsequent statute, is
nevertheless clothed in such language, and is so incorporated as an amendment with
the words antecedently employed to define the offense, that it would be impossible to
frame the actual statutory charge in the form of an indictment with the accuracy, and
the required certainty, without an allegation showing that the accused was not within
the exception contained in the subsequent cause, section, or statute. Obviously such
an exception must be pleaded, as otherwise the indictment would not present the
actual statutory accusation, and would also be defective for the want of clearness and
certainty.
xxx

xxx

xxx

Commentators and judges have sometimes been led into error by supposing that the
words "enacting clause," as frequently employed, mean the section of the statute
defining the offense, as contradistinguished from a subsequent section in the same
statute, which is the misapprehension of the term, as the only real question in the

case is whether the exception is so incorporated with the substance of the clause
defining the offense as to constitute a material part of the description of the acts,
omission, or other ingredients which constitute the offense. Such an offense must be
accurately and clearly described, and if the exception is so incorporated with the
clause describing the offense that it becomes in fact a part of the description, then it
can not be omitted in the pleading, but if it is not so incorporated with the clause
defining the offense as to become a material part of the definition of the offense, then
it is a matter of defense and must be shown by the other party, though it be in the
same section or even in the succeeding sentence.
And in the case of Nelson vs. U.S. (30 Fed. Rep., 112), the court, after discussing the material
modification in the above-cited decision of the Supreme court of the United States of the rule as
laid down by Bishop and other law writers, says:
But in my judgment they (referring to the fact that certain cases decide that exceptions
such as that mentioned in the indictment in that case should be negatived) are more
distinguished for verbal dialectics than good sense, and are better calculated to puzzle
and pervert than to promote the administration of justice. As a rule, an exception in a
statute by which certain particulars are withdrawn from or accepted out of the
operation of the enacting clause thereof defining a crime concerning a class or
species, constitutes no part of the definition of such crime, whether placed close to or
remote from such enacting clause. And, whenever a person accused of the
commission of such a crime claims to be within such exception, it is more logical and
convenient that he would aver and prove the fact than that the prosecutor should
anticipate such defense, and deny it.
The question raised in the case of Nelson vs. U.S. was almost identical with the question
submitted in the case at bar. An Act of Congress prohibited and penalized the sale of intoxicating
liquor in the territory of Alaska, except for mechanical, medicinal, or scientific purposes, and the
indictment failing to negative this exception, counsel for defendant urged that it was fatally
defective. The court held, however, that the purpose of the statute was to the prohibit generally
the sale if intoxicating liquors throughout the territory, and that the exception as to the sale of
liquor for mechanical, medicinal, or scientific purposes merely withdrew such sales from the
operation of the enacting clause of the statute, and that it mattered not the exception appeared
to be grammatically a provision of the enacting clause, and that under the technical rule laid
down by the law writers it should be negatived, practically it was more logical and convenient
that the accused should aver and prove the fact that the sale made by him fell within the
exception, than that the prosecutor should anticipate such defense and deny it.lawphil.net
So in the case at bar, the evident intent and purpose of the statute is to prohibit and to penalize
generally the smoking of opium in these Islands. But the legislator desired to withdraw from the
operation of the statute a limited class of smokers, to wit, those who smoked under the advise
and by prescription of a licensed and practicing physician, and we do not think that it makes the
slightest practical difference, whether the excepting proviso as to such persons is found in the
enacting clause of the statute in a separate provision thereof or in a separate Act. Hence where
one is charged with a violation of the general provisions of the Opium Law, it is "more logical as
well as more practical and convenient," if he did in fact smoke opium under the advise of a
physician, that he should set up this fact by way of defense, than that the prosecution should be
called upon to prove that every smoker, charged with a violation of the law, does so without such
advice or prescription. Indeed, when it is considered that under the law any person, in case of
need and at any time, procure the advice of a physician to use of opium or some of its
derivatives, and that in the nature of things no public record of prescription of this kind is or can

be required to be kept, it is manifest that it would not be wholly impracticable and absurd to
impose on the prosecution the burden of alleging and proving the fact that one using opium does
so without the advice of a physician. To prove beyond a reasonable doubt in a particular case,
that one using opium does so without the advice or prescription of a physician would be in most
cases practical impossibility without the aid of the defendant himself, while the defendant
charged with the illegal use of opium should find little difficulty in establishing the fact that used it
under the advice and on the prescription of a physician, if in fact he did so.
We conclude, therefore, that the demurrer was properly overruled in the trial court, both from
necessity of the case and under the doctrine laid down in the case of Nelson vs. U.S. which we
accept and approve, that, "as a rule, an exception in a statute by which a certain particular are
withdrawn from or excepted out of the enacting clause thereof defining a crime concerning a
class or species, constitutes no part of the definition of such crime, whether placed clause to or
remote from such enacting clause."
It is worthy of consideration in this connection that in Act No. 1761, which repeals Act No. 1461,
reenacting most of its provision with certain amendments and additions, it is expressly provided
that the possession of opium, opium pipes, and other instruments for its use, shall be
deemed prima facie evidence that the person in possession thereof has used one of the
prohibited drugs without prescription of a duly licensed and practicing physician, unless such
prescription is produced by such person.
It is not necessary to discuss the remaining alleged errors in procedure assigned by counsel for
appellant, because it does not appear that of objection based on this court, and we have
frequently held in similar cases that accused persons can not be heard to raise such objections
for the first time in this court.
The judgment and sentenced the trial court should be and is hereby affirmed, with the costs of
this instance against the appellant. So ordered.
Arellano, C.J. Torres, Mapa, Willard, and Tracey, JJ., concur.

dresses mending shop in Barrio Aplaya of the said municipality and having
collected and received from Uniware, Inc., a business establishment in
Makati, Rizal, to which finished baby dresses are turned over after they
have been mended and made, the sum of P127.58 in payment of work done
on baby dresses by said Luz E. Balitaan, and under the express obligation
on the part of the accused to immediately account for and deliver the said
amount of P127.58 to said Luz E. Balitaan, with unfaithfulness and grave
abuse of confidence and in spite of repeated demands made to the said
accused to turn over the said amount of P127.58, did then and there,
wilfully, unlawfully and feloniously misappropriate, misapply and convert the
sum of P127.58 to her (accused) own use and benefit, to the damage and
prejudice of the said Luz E. Balitaan in the aforementioned amount of
P127.58.
Contrary to law. 1

G.R. No. L-38544 July 30, 1982

LUZ E. BALITAAN, petitioner,
vs.
COURT OF FIRST INSTANCE OF BATANGAS, BRANCH II, and RITA DE LOS
REYES, respondents.

At the initial hearing on September 18, 1973, complaining witness Luz E. Balitaan, herein
petitioner, was called as the prosecution's first witness. She testified that she was the
proprietress of a baby dress mending shop, that her business was engaged in the sewing of
baby dresses with the accused, Rita de los Reyes, herein respondent, as the one in charge of
the management of her business, including the procurement of unsewed baby dresses from,
and the delivery of finished dresses to Unaware, Inc. She further testified as follows:
Q. Sometime in April 27,1972, do you know if the
accused in this case, Rita de los Reyes had made
deliveries of baby dresses to Uniware, Incorporated?

Julio D. Enriquez, Sr. for petitioner.

A. Yes, sir.
Jose N. Contreras for respondents.
Q. Do you have a receipt or cash voucher to show that
those baby dresses were delivered?
A. Yes, sir.

GUERRERO, J.:

Q. I am going to show you a cash voucher dated April

27, 1972, which appears to be the original carbon copy
and which for purposes of Identification we ask that the
same be marked as Exhibit "A" for the prosecution.

This is a petition for review on certiorari of the decision of the Court of First Instance of Batangas
in Civil Case No. 81 entitled "Rita de los Reyes vs. Luz E. Balitaan, et al." which annulled the
orders of the Judge of the Municipal Court of Bauan, Batangas and ordered the questioned
testimonies to be striken out from the record on the ground that they are at variance with the
allegations of the Information.

COURT:
The chronological sequence of the events leading to the filing of the instant petition is as follows:
Mark it.
On April 11, 1973, Special Counsel Arcadio M. Aguila filed with the Municipal Court of Bauan,
Batangas, an Information charging respondent Rita de los Reyes of the crime of estafa. The
Information reads as follows:
That in, about and during the period comprised between April 27, 1982 to
June, 1972, inclusive, in the Municipality of Bauan, Batangas, Philippines,
and within the jurisdiction of this Honorable Court, the abovenamed
accused, being then an employee of one Luz E. Balitaan, owner of a baby

Atty. Enriquez:
Q. Is this the cash voucher of baby dresses delivered
by Rita de los Reyes?
xxx xxx xxx

A. Yes, sir.
Q. Do you know this or what is this about?
A. This is receipt of payment made to us for the dresses
we have made.
xxx xxx xxx
Q. It appears in this voucher, Exhibit "A", that the total
payment made and suppose to be received was in the
amount of P1,632.27 in words and figures, how was the
payment made?
A. By checks sir.
Q. How many checks?
A. Three (3) checks, sir.
Q. Would you know from this Exhibit "A" the number of
checks and the corresponding amount appearing in the
checks in payment of this P1,632.97?

At this juncture, counsel for the accused Rita de los Reyes objected to the testimony of
complaining witness, Luz E. Balitaan and presented two motions. The transcript of stenographic
notes shows what these motions are:
ATTY. CONTRERAS:
If your Honor please, the defense is respectfully
presenting to this Honorable Court two (2) motions:
first, to strike out all the testimonies of the witness as
far as Exhibit "A" is concerned on the ground that said
testimonies are at variance with the allegations in the
information, there is no allegation in the information
whatsoever regarding these checks and this cash
voucher, your Honor, and we are filing a motion in the
nature of an objection to any other question or
questions regarding these checks that were allegedly
received by the herein accused from the Unaware
Incorporated because there is no allegation in the
information. If the information will only be read carefully,
the sum of P127.58 in payment of work done in baby
dresses was received by the accused, so that all these
evidence, having received checks in so much
amount ... It is respectfully submitted by the defense
that no evidence could be admissible under the rules.
ATTY. ENRIQUEZ:

(Witness again shown Exhibit "A").

A. Yes sir.
Q. Where, will you point to this Exhibit "A"?
A. Witnesses pointing to #17000703 and opposite it the
amount of P500.00; she was also pointing to
#17000702 and opposite it P500.00; and also
#17000704, opposite it is the amount of P632.97.
Q. Now, who received the checks in payment of the
dresses made in this cash voucher?
A. Rita de los Reyes, sir. (herein respondent)
Q. From where?
A. In Makati.
Q. This cash voucher dated April 27, 1972, Exhibit "A",
who received this from Unaware, Incorporated, if it was
received? 2

There was already testimony of this witness that there

is certain amount received and that portion thereof was
not delivered to the offended party. What we are
proving here are preliminary evidence going directly to
the present issue of P127.58 was received, as the
Court would readily see in this cash voucher that the
amount subject matter of the information or complaint is
indicated in this cash voucher. This exhibit and
evidence is germane and I want to show that there is
misappropriation of the amount from the total amount of
P1,632.97.
ATTY. CONTRERAS:
The information alleges that the accused received the
sum of P127.58, the information does not cite that this
amount was only a part of the cash received. All these
evidence will be immaterial, there is no allegation in the
information by which this information would be tending
to sustain. I submit, your Honor.
ATTY. ENRIQUEZ:
We submit, your Honor.

COURT:

I. The lower court erred in granting the writ of certiorari to annul the orders
of the Municipal Court of Bauan, Batangas in Criminal Case No. 2172.

Objection overruled. 3
As clearly seen above, the objection was overruled. Luz E. Balitaan thereby continued with her
testimony and declared that accused Rita de los Reyes delivered the said checks and voucher
to her; that upon delivery, the said accused represented to her that the baby dresses with style
Nos. 648, 151, 161 and 203 were those of Cesar Dalangin whose payment in the amount of
P127.58 was included in the checks; that in view of this statement, said Luz E. Balitaan
instructed said accused to cash the checks in order to pay Cesar Dalangin; that Rita de los
Reyes returned the following day with the cash minus the amount of P127.58. She further
declared that two or three weeks afterwards, she noticed that there were too many baby dresses
that were lost prompting her to verify the receipts of payment, one of which is the cash voucher,
Exhibit "A". In the course of her investigation, she went to see Cesar Dalangin who declared that
Style Nos. 648, 151, 161 and 203 were not his and denied having received any amount from
Rita de los Reyes or of even knowing the latter; that when she confronted the accused and
asked why she deceived her, said accused could not talk, turned pale but later admitted having
kept the amount.
At the close of the direct examination of Luz E. Balitaan, counsel for the accused moved to strike
out the foregoing testimonies but respondent court also denied the motion.
Consequently, accused Rita de los Reyes instituted in the Court of First Instance of Batangas,
Eighth Judicial District, Branch II, Civil Case No. 81, against petitioner-appellant, Luz E. Balitaan,
and the Honorable Guillermo B. Magnaye, in his capacity as Judge of the Municipal Court of
Bauan, Batangas, a petition for certiorari, with preliminary injunction, to annul the
aforementioned orders of the said Municipal Court of Bauan, Batangas, overruling the objections
of accused Rita de los Reyes to the testimony of complaining witness on the grounds of
immateriality and variance with the Information as well as denying the motion to strike out the
same.
In a decision dated March 13, 1973, the Court of First Instance of Batangas sustained
respondent's stand and hence, granted the petition for writ of certiorari, the dispositive portion of
the same states as follows:
WHEREFORE, the petition is granted and the orders of respondent Judge
overruling petitioner's objection, as well as denying her motion to strike out
the testimonies of Luz E. Balitaan abovequoted and appearing on pages 2332 of the transcript of stenographic notes marked Exhibit "X", are hereby
annulled. Let said testimonies be stricken out from the record of the hearing
of September 18, 1973, of Criminal Case No. 2172 of the Municipal Court of
Bauan, Batangas entitled People vs. Rita de los Reyes. Costs against
private respondent Luz E. Balitaan.
SO ORDERED. 4
From said decision, Luz E. Balitaan filed this instant petition for review with the following
assigned errors:

II. The lower court erred in holding that there is a variance between the
allegation in the information for estafa in Criminal Case No. 2172 and the
proof established by the petitioner's testimony thereat.
III. The lower court, in resolving the present case, erred when it decided the
merits of Criminal Case No. 2172 instead of limiting itself to a determination
of whether the writ of certiorari should issue or not. 5
In resolving the issue of variance between allegation and proof, the Court of First Instance ruled:
Private respondent contends that Luz E. Balitaan's testimonies about the
delivery of the checks to petitioner and their having been cashed by her is
merely to show the source of the P127.58 misappropriated. True but when
she testified that petitioner deducted the said amount from the proceeds
falsely representing that the same belonged to Cesar Dalangin, and should
be delivered to him, when in fact she did not deliver but misappropriated the
same to her own use and benefit, the testimony became objectionable. It
became objectionable because it tended to prove estafa committed not in
the manner as alleged in the information but in a manner not alleged
therein. In overruling petitioner's objection, respondent Judge acted in
excess of his jurisdiction because the Rules expressly provides (sic) that
evidence should correspond with the allegations of the complaint or
information. 6
Petitioner vehemently objected to the resolution of the issue in that manner, contending that
what counsel for Rita de los Reyes presented before the Municipal Court of Bauan were only
these two motions; viz: (1) to strike out complaining witness' testimony concerning the cash
voucher on the ground of immateriality and variance with the Information which did not allege
the existence of said voucher and three checks; and (2) a motion objecting to any and all other
questions concerning the checks in the total amount of P1,632.97 on the ground of variance
inasmuch as the Information recited that the accused received and misappropriated the amount
of P127.58 only.
In other words, it is petitioner's stand that since these were the only motions that were denied by
the Municipal Court, it is their denial that is accordingly questioned by way of certiorari before
the Court of First Instance and that when the latter court went beyond the merits of the motions
in question, it acted improperly for in so doing, it did not give the adverse party a chance to
argue the point and receive evidence on the question.
We disagree. The facts of the case, culled from petitioner-appellant's brief itself, show that aside
from the two motions above-mentioned, private respondent moved to strike out complaining
witness' testimony "relating to the receipt (voucher) of the three checks" and cashing thereof by
the accused Rita de los Reyes, which, according to counsel, is at variance with the allegation in
the Information, it appearing that there is no allegation or averment therein that "the accused
received the checks," that those checks "were cashed by the accused", and that the accused
got a portion of the amount or cash "for the purpose of having it delivered to Cesar Dalangin." 7

The issue of variance between the mode or from of estafa alleged in the Information and that
sought to be proved by the testimony may be inferred from the foregoing motion to strike out.
Contrary also to petitioner's contention in her brief before this Court that this issue was not
raised in Civil Case No. 81 in the Court of First Instance of Batangas, private respondent aptly
quoted her arguments in her memorandum dated February 3, 1974 before said court showing
that the issue was in fact raised, to wit:
... the information charges the accused with Estafa under Article 315, 4th
par., No. 1, letter (b) of the Revised Penal Code, the allegation being that
the accused, with unfaithfulness and abuse of confidence, misappropriated
and converted the amount of P127.58 which she received in trust for a
certain specific purpose. But, the evidence consisting of the testimony of the
complainant, as already adverted to in the foregoing discussion, tends to
prove another kind of estafa which may fan under Article 315, 4th par., No.
2, letter (a) of the Revised Penal Code wherein the punishable act consists
of using false pretenses or fraudulent act. This is so because, according to
the complainant's testimony, the accused made false pretense or
misrepresentation that the amount of P127.58 was due in favor of Cesar
Dalangin. The essence therefore of the criminal act shown by the
testimonial evidence is the element of deceit, and this is an entirely different
kind of estafa (from that) charged against the accused in the information
under which she was arraigned and pleaded not guilty. 8
After threshing out this preliminary matter of whether the issue at hand was raised or not, We
now proceed with the resolution of the said issue.
It is fundamental that every element of which the offense is composed must be alleged in the
complaint or information. What facts and circumstances are necessary to be stated must be
determined by reference to the definitions and the essentials of the specific crimes. 9
Thus, in the case at bar, inasmuch as the crime of estafa through misappropriation or with grave
abuse of confidence is charged, the information must contain these elements: (a) that personal
property is received in trust, on commission, for administration or under any other circumstance
involving the duty to make delivery of or to return the same, even though the obligation is
guaranteed by a bond; (b) that there is conversion or diversion of such property by the person
who has so received it; (c) that such conversion, diversion or denial is to the injury of another
and (d) that there be demand for the return of the property. 10
The main purpose of requiring the various elements of a crime to be set out in an information is
to enable the accused to suitably prepare his defense. He is presumed to have no independent
knowledge of the facts that constitute the offense. 11
However, it is often difficult to say what is a matter of evidence, as distinguished from facts
necessary to be stated in order to render the information sufficiently certain to Identify the
offense. As a general rule, matters of evidence, as distinguished from facts essential to the
description of the offense, need not be averred. 12 For instance, it is not necessary to show on
the face of an information for forgery in what manner a person is to be defrauded, as that is a
matter of evidence at the trial. 13
Moreover, reasonable certainty in the statement of the crime suffices. All that is required is that
the charge be set forth with such particularity as will reasonably indicate the exact offense which

the accused is alleged to have committed and will enable him intelligently to prepare his
defense, and if found guilty to plead her conviction, in a subsequent prosecution for the same
offense. 14
Applying these principles, We rule that the existence of the three checks need not be alleged in
the Information. This is an evidentiary matter which is not required to be alleged therein. Further,
that these checks, as testified by petitioner amounted to P1,632.97 did not vary the allegation in
the Information that respondent Rita de los Reyes misappropriated the amount of P127.58.
Proof of the checks and their total amount was material evidence of the fact that respondent
misappropriated the amount of P127.58 which was but a part of the total sum of the checks.
Inasmuch as the Information herein sufficiently charges the crime of estafa under paragraph 1(b)
of Article 315, Revised Penal Code, We shall now determine whether the testimonies of
complaining witness prove the same or tend to prove instead estafa under paragraph 2(a) of the
same article.
It is true that estafa under paragraph 1(b) is essentially a different offense from estafa under
paragraph 2(a) of the same article because the elements of these two offenses are not the
same. In estafa under paragraph 1(b), which is committed with grave abuse of confidence, it
must be shown that the offender received money or other personalty in trust or on commission
or for administration, or under any other obligation involving the duty to make delivery of or to
return the same but misappropriated it to the prejudice of another. It is also necessary that
previous demand be made on the offender. To sustain a conviction for estafa under paragraph
2(a), on the other hand, deceit or false representation to defraud and the damage caused
thereby must be proved. And no demand is necessary. 15
This does not mean, however, that presentation of proof of deceit in a prosecution for estafa
under paragraph 1(b) is not allowed. Abuse of confidence and deceit may co-exist. Even if deceit
may be present, the abuse of confidence win characterize the estafa as the deceit will be merely
incidental or as the Supreme Court of Spain held, is absorbed by abuse of confidence. 16
It has also been held that as long as there is a relation of trust and confidence between the
complainant and the accused and even though such relationship has been induced by the
accused thru false representations and pretense and which is continued by active deceit without
truthfully disclosing the facts to the complainant, the estafa committed is by abuse of confidence
although deceit co-exists in its commission. 17
Thus, the questioned testimony eliciting the fact that accused respondent falsely represented to
the complainant-petitioner that the amount of P127.58 out of the total of P1,632.97 belonged to
Cesar Dalangin may not be said to be at variance with the allegations of the Information. The
presence of deceit would not change the whole theory of the prosecution that estafa with abuse
of confidence was committed. Besides, in estafa by means of deceit, it is essential that the false
statement or fraudulent representation constitutes the very cause or the only motive which
induces the complainant to part with the thing. 18 The municipal court properly denied, therefore,
the motion to strike out the testimonies anent use of false representations.
WHEREFORE, the decision of the Court of First Instance of Batangas, Branch II in Civil Case
No. 81, ordering the questioned testimonies to be stricken from the record is hereby
REVERSED and SET ASIDE.
SO ORDERED.

Concepcion, Jr., Abad Santos and de Castro, JJ., concur.

Escolin, J., concur in the result.

ANTONIO, J.:p
Certiorari to nullify the judgment of respondent Court of First Instance of Rizal, Branch XXVI, in
Criminal Cases Nos. 9552, 9553 and 9554, imposing upon the accused Crisanto Matilde, Jr. y
Cruz, for the crime of simple theft, the penalty prescribed in Presidential Decree No.
133 1 instead of that imposed by Article 309, paragraph 3, of the Revised Penal Code. 2

Separate Opinions

On December 14, 1973, an Assistant Provincial Fiscal of Rizal filed three (3) informations in
Criminal Cases Nos. 9552, 9553 and 9554 against Crisanto Matilde, Jr. y Cruz, Patricio Guiruela
y Luna, Ricardo Abener y San Pascual, Edgardo Cape y Atienza, Servando Calpo y Caballero,
and Ireneo Belver y Bale.

AQUINO, J., concurring:

I concur in the result. The Court of First Instance grievously erred (and thus delayed the
disposition of a simple estafa case) in entertaining the certiorari petition of the accused, Rita de
los Reyes, wherein she complained of the alleged errors of the trial court in the reception of the
evidence of complainant Luz E. Balitaan. Appeal, not certiorari, is the remedy for correcting
those errors. certiorari is a remedy for correcting errors of jurisdiction (Nocon vs. Geronimo, 101
Phil. 735).
Certiorari is an extraordinary remedy. Its use is confined to extraordinary cases wherein the
action of the inferior court is wholly void. (Herrera vs. Barreto and Joaquin, 25 Phil. 245, 271).
That situation does not obtain in this case.
Barredo (Chairman), J., I concur for the reasons stated in the concurring opinion of Justice
Aquino.

Except for the dates of commission and the amounts involved, the aforesaid three (3)
informations uniformly stated that said accused were charged with the crime of qualified theft, in
relation to Presidential Decree No. 133, committed as follows:
That on or about the 14th day of November, 1973 in the Municipality of
Pasig, Province of Rizal, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, being then laborers working at
the Markes Agro-Chemical Enterprises, conspiring and confederating
together with one Renato Matuto y Ann, who is still at large, all of them
mutually helping and aiding one another, with intent of gain, grave abuse of
confidence, and without the knowledge and consent of the said firm, its
President and General Manager, Marciano K. Espiritu, did then and there
wilfully, unlawfully and feloniously take, steal and carry away the following,
to wit: ..."
In Criminal Case No. 9552, the articles allegedly stolen consisted of ten (10) boxes of Malathion
E-57 Insecticide, and eight (8) boxes of Endrin Insecticide, with a total value of P9,414.00,
belonging to the Markes Agro-Chemical Enterprises.
Criminal Case No. 9553 involved the qualified theft of thirteen (13) boxes
of Malathion Insecticide, valued at P1,802.00, while that of Criminal Case No. 9554 involved five
(5) boxes of Susathion Insecticide, valued at P1,116.00, all belonging to the same company.

G.R. No. L-38392 December 29, 1975

CRISANTO MATILDE, JR. Y CRUZ, petitioner,
vs.
HON. RAMON B. JABSON, in his capacity as Presiding Judge of Branch XXVI of the Court
of First Instance of Rizal and THE PEOPLE OF THE PHILIPPINES, respondents.

It appears that the afore-mentioned informations were amended twice the first, on the value
of the article involved in Criminal Case No. 9552, and the second, on the nature and character of
the offense, changing it from "qualified theft" to "simple theft" by deleting therefrom the phrase
"with grave abuse of confidence". In view of said amendments, petitioner withdrew his previous
plea of not guilty to the afore-mentioned amended informations.
On February 18, 1974, respondent court promulgated its judgment, convicting the accused in
Criminal Cases Nos. 9552, 9553 and 9554, thus:

Prudencio Cruz for petitioner.

Office of the Solicitor General Estelito P. Mendoza, Assistant Solicitor General Conrado T.
Limcaoco and Solicitor Pio C. Guerrero for respondents.

When these cases were called for hearing this morning, Trial Fiscal
Francisco C. Rodriguez, Jr., for the reasons cited by him, moved for the
amendment of the information from Qualified Theft to Simple Theft and

deleting from the body of the Information the phrase "Grave abuse of
confidence", which Motion was granted by the Court.
Accordingly, accused Crisanto Matilde, Jr. y Cruz, thru counsel, Atty.
Prudencio Cruz, moved for the withdrawal of his former plea of not guilty in
each of the aforesaid cases and to substitute the same with a plea of guilty
in the three cases, which was granted by the Court.
Upon re-arraignment, accused Crisanto Matilde, Jr., assisted by same
counsel, voluntarily and spontaneously pleaded guilty to the crime of Simple
Theft alleged in each of the three Amended Informations.
WHEREFORE, the Court renders Judgment as follows:
Crim. Case No. No. 9552 The Court finds accused GUILTY beyond
reasonable doubt of the crime of Simple Theft. In the absence of any
modifying circumstance but considering the mitigating circumstance of plea
of guilty in his favor, in relation with Presidential Decree No. 133, the Court
hereby sentences the said accused to suffer an indeterminate penalty
ranging from SIX (6) MONTHS and ONE (1) DAY of Prision Correccional as
minimum to SIX (6) YEARS and ONE (1) DAY of Prision Mayor as
maximum, without any pronouncement as to civil liability it appearing that
the articles subject matter of the same case were recovered and to pay the
costs.
Crim. Case No. 9553 The Court finds accused GUILTY beyond
reasonable doubt of the crime of Simple Theft. In the absence of any
modifying circumstance but considering the mitigating circumstance of plea
of guilty in his favor, in relation with Presidential Decree No. 133, the Court
hereby sentences the said accused to suffer an indeterminate penalty
ranging from SIX (6) MONTHS and ONE (1) DAY of Prision Correccional as
minimum to SIX (6) YEARS and ONE (1) DAY of Prision Mayor as
maximum, to indemnify the offended party in the sum of P2,808.00 without
subsidiary imprisonment in case of insolvency and to pay the costs.
Crim. Case No. 9554 The Court finds accused GUILTY beyond
reasonable doubt of the crime of Simple Theft. In the absence of any
modifying circumstance but considering the mitigating circumstance of plea
of guilty in his favor, in relation with Presidential Decree No. 133, the Court
hereby sentences the said accused to suffer an indeterminate penalty
ranging from SIX (6) MONTHS and ONE (1) DAY of Prison Correccional as
minimum to SIX (6) YEARS and ONE (1) DAY of Prison Mayor as
maximum, to indemnify the offended party in the sum of P2,226.00, without
subsidiary imprisonment in case of insolvency and to pay the costs.
Considering that the accused is a detention prisoner, he shall be credited
with the preventive imprisonment he has already suffered in accordance
with law.
SO ORDERED.

Petitioner sought from the court a quo a reconsideration of its judgment, contending that in the
absence of any allegation in the body of the information alleging specifically all the elements of
the offense defined and penalized under Presidential Decree No. 133, he cannot be convicted
and penalized under the aforesaid decree. This was, however, denied by said court on March 5,
1974, hence, petitioner instituted the present petition. Raised in issue by the petitioner is
whether on the basis of the averments of the afore-mentioned informations, the respondent
court can validly impose upon petitioner the penalty prescribed by Presidential Decree No. 133.
The Constitution guarantees that in all criminal prosecutions, the accused shall be informed of
the nature and cause of the accusation against him. 3 To give substance to this Constitutional
guarantee, Section 8 of Rule 110 of the Rules of Court requires that the acts or omissions
complained of as constituting the offense must be stated in an ordinary and concise language so
as (a) to enable a person of common understanding to know what offense is intended to be
charged; and (b) to enable the court to pronounce proper judgment. The rule states that the
statement need not necessarily be in the language of the statute. What is important is that the
crime is described in intelligible terms with such particularity as to apprise the accused, with
reasonable certainty, of the offense charged. In other words, the crime is stated in such a way
that a person of ordinary intelligence may immediately know what is meant, and the court can
decide the matter according to law. 4 Inasmuch as "not only the liberty but even the life of the
accused may be at stake, it is always wise and proper that the accused should be fully apprised
of the true charges against them, and thus avoid all and any possible surprises which may be
detrimental to their rights and interests." 5 The main purpose of this requirement is to enable the
accused to suitably prepare his defense. He is presumed to be innocent and has, therefore, no
independent knowledge of the facts that constitute the offense with which he is charged. 6 As
aptly explained by Justice Fernando in People v. Mencias: 7
2. Nor was the lower court any more justified in quashing the five
informations on the ostensible ground that private respondents had been
denied the constitutional right "to be informed of the nature and cause of the
accusation against him. ..." Here again its process of ratiocination is difficult
to follow. Certainly it ought to have been aware that all that this
constitutional right signifies is that an accused should be given the
necessary data as to why he is being proceeded against. He should not be
left in the unenviable state of speculating why he is made the object of a
prosecution. As was so aptly pointed out in the same sponsorship speech of
Delegate Laurel: "It is the right of a person accused of crime to demand the
nature and cause of the accusation against him. He should know for what
cause and of what crime he is being charged. The Petition of Rights
denounced the former practice in England of imprisoning freeman by the
King's special command, without any charge." The act or conduct imputed
to him must be described with sufficient particularity so that he would be in a
position to defend himself properly. If it were not so, then there is an
element of unfairness. Due process is in fact denied him ...
Concommitant with the foregoing is the rule "that an accused person cannot be convicted of a
higher offense than that with which he is charged in the complaint or information on which he is
tried. It matters not how conclusive and convincing the evidence of guilt may be, an accused
person cannot be convicted in the Courts of these Islands of any offense, unless it is charged in
the complaint or information on which he is tried, or necessarily included therein. He has a right
to be informed as to the nature of the offense with which he is charged before he is put on trial,
and to convict him of a higher offense than that charged in the complaint or information on which
he is tried would be an authorized denial of that right." 8

The informations in these cases charge the accused simply with the crime of theft. Thus, while
alleging that the accused were laborers working in the Markers Agro-Chemical Enterprises,
these informations charge them with having conspired and confederated with one Renato
Matuto, and having mutually aided one another, with intent of gain and without the knowledge
and consent of said Company, in taking stealing and carrying away the articles mentioned
therein belonging to said Company. Nowhere is it alleged in the body of the afore-mentioned
informations that the articles stolen were materials or products which the accused-petitioner was
"working on or using or producing" as employee or laborer of the complainant. The clear import
of Presidential Decree No. 133 on the basis of its recitals is to eradicate "graft and corruption in
society, and promote the economic and social welfare of the people" by placing a strong
deterrent on workers and laborers from sabotaging the productive efforts of the industry where
they are employed, through the imposition of heavier penalties for the theft of "any material,
spare part, product, or article that he is working on, using or producing." It is obvious that the
averment of those facts in the body of the complaint or information is essential and necessary to
qualify the offense and to justify the imposition of the heavier penalty prescribed by Presidential
Decree No. 133. It is true that in the preamble of the aforesaid informations, the petitioner is
charged with the crime of simple theft "in relation to Presidential Decree No. 133". This is,
however, insufficient for the purpose envisioned by the afore-mentioned constitutional
guarantee, considering that it is well-settled that the real nature of the criminal charge is
determined not from the caption or preamble of the information nor from the specification of the
provision of law alleged to have been violated, they being conclusions of law, but by the actual
recital of facts in the complaint or information.9
The appropriate penalty that should have been imposed is that prescribed by Article 309,
paragraph 3, of the Revised Penal Code, which provides for the "penalty of prision
correccional in its minimum and medium periods, if the value of the property stolen is more than
200 pesos but does not exceed 6,000 pesos." Considering the plea of guilty, the court a
quo should have imposed the aforesaid penalty in its minimum period (SIX [6] MONTHS and
ONE [1] DAY to ONE [1] YEAR, EIGHT [8] MONTHS and TWENTY [20] DAYS) for each of the
aforesaid three (3) criminal cases.

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ROMEO GALLO y IGLOSO, accused-appellant.
RESOLUTION

PER CURIAM:
The penalty of death imposed upon accused-appellant Romeo Gallo y Igloso by the Regional
Trial Court, Branch 68, of Binangonan, Rizal, after finding him guilty beyond reasonable doubt of
the crime of qualified rape, was affirmed by this Court in its decision promulgated on 22 January
1998.
On 24 August 1999, accused-appellant filed a "Motion to Re-open Case (with Leave of Court)"
seeking a modification of the death sentence to reclusion perpetua. Accused-appellant proffers
that the reduction sought by him would be in line with the new Court rulings which annunciate
that the seven attendant circumstances introduced in Section 11 of Republic Act No. 7659
partake of the nature of qualifying circumstances that must be pleaded in the indictment in order
to warrant the imposition of the penalty.
The Court in the case of People vs. Garcia, 1 speaking through then, Justice Florenz D.
Regalado, ratiocinated that the additional attendant circumstances introduced by R.A. 7659
should be considered as special qualifying circumstances distinctly applicable to the crime of
rape and, if not pleaded as such, could only be appreciated as generic aggravating
circumstances. 2
The information filed against accused-appellant reads:

ACCORDINGLY, the writ of certiorari is granted and the questioned judgment should be, as it is
hereby set aside and another one should be rendered in accordance with the foregoing. No
pronouncement as to costs.
Fernando (Chairman), Barredo, Aquino and Concepcion, Jr., JJ., concur.

That on or sometime the period of May, 1994 in the Municipality of Cardona,

Province of Rizal, Philippines and within the jurisdiction of this Honorable
Court, the above named accused, with lewd designs and by means of force
or intimidation, did then and there willfully, unlawfully and feloniously have
sexual intercourse with a 13 year old girl, Marites Gallo y Segovia. 3
The above indictment has not specifically alleged that accused-appellant is the
victim's father; accordingly, accused-appellant's relationship to the victim, although
proven during the trial, cannot be considered to be a qualifying circumstance. 4
The next crucial point is whether the Court must now apply retroactively the Garcia doctrine to
the conviction of accused-appellant.
The Court has had the opportunity to declare in a long line of cases that the tribunal retains
control over a case until the full satisfaction of the final judgment conformably with established
legal processes. It has the authority to suspend the execution of a final judgment or to cause a
modification thereof as and when it becomes imperative in the higher interest of justice or when
supervening events warrant it. 5

G.R. No. 124736 September 29, 1999

The doctrine declared in People vs. Garcia, and its reiteration in People vs. Ramos, 6 People
vs. Ilao, 7 and People vs. Medina, 8 came only after almost a year from the promulgation of the
instant case.
The Office of the Solicitor General, when requested to comment on the aforesaid 24th August
1999 motion of accused-appellant, had this to state:
Judicial decisions applying or interpreting the law or the Constitution shall
form part of the legal system of the land (Article 8, Civil Code of the
Philippines). Medina, which has the force and effect of law, forms part of our
penal statutes and assumes retroactive effect, being as it is, favorable to an
accused who is not a habitual criminal, and notwithstanding that final
sentence has already been pronounced against him (Article 22, Revised
Penal Code).
Indeed, by operation of law, appellant is rightfully entitled to the beneficial
application of Medina. Accordingly, the Office of the Solicitor General hereby
joins appellant's prayer for reduction of his sentence from death to reclusion
perpetua.
The Court agrees with the Office of the Solicitor General in its above observations and sees
merit in its stand to join accused-appellant in praying for a modification of the sentence from
death to reclusion perpetua.
WHEREFORE, the motion to re-open the case is GRANTED and the decision sought to be
reconsidered is MODIFIED by imposing on accused-appellant the penalty of reclusion
perpetua in lieu of the death penalty and ordering him to indemnify the victim the amount of
P50,000.00.
Considering that the records of all cases where the death penalty is imposed are forwarded to
the Office of the President in accordance with Section 25 of R.A. 7659, the Court directs the
Clerk of Court to furnish the Office of the President with a copy of this resolution for appropriate
guidance.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing,
Purisima, Pardo, Buena, Gonzaga-Reyes and Ynares-Santiago, JJ., concur.

G.R. No. 118971 September 15, 1999

RODOLFO R. VASQUEZ, petitioner,
vs.
COURT OF APPEALS, THE REGIONAL TRIAL COURT OF MANILA BRANCH 40, and THE
PEOPLE OF THE PHILIPPINES, respondents.

MENDOZA, J.:
The question for determination in this case is the liability for libel of a citizen who denounces a
barangay official for misconduct in office. The Regional Trial Court of Manila, Branch 40, found
petitioner guilty and fined him P1,000.00 on the ground that petitioner failed to prove the truth of
the charges and that he was "motivated by vengeance in uttering the defamatory statement." On
appeal, the Court of Appeals, in a decision 1 dated February 1, 1995, affirmed. Hence, this
petition for review. The decision appealed from should be reversed.
The facts are not in dispute. Petitioner Rodolfo R. Vasquez is a resident of the Tondo Foreshore
Area. Sometime in April 1986, he and some 37 families from the area went to see then National
Housing Authority (NHA) General Manager Lito Atienza regarding their complaint against their
Barangay Chairman, Jaime Olmedo. After their meeting with Atienza and other NHA officials,
petitioner and his companions were met and interviewed by newspaper reporters at the NHA
compound concerning their complaint. The next day, April 22, 1986, the following news
article 2 appeared in the newspaper Ang Tinig ng Masa:
Nananawagan kahapon kay pangulong Corazon Aquino ang 38 mahihirap
na pamilya sa Tondo Foreshore Area na umano'y inagawan ng lupa ng
kanilang barangay chairman sa pakikipagsabwatan sa ilang pinuno ng
National Housing Authority sapul 1980.
Sinabi nila na nakipagsabwatan umano si Chairman Jaime Olmedo ng
barangay 66, Zone 6, Tondo Foreshore Area, sa mga project manager ng
NHA upang makamkam ang may 14 na lote ng lupa sa naturang lugar.
Binanggit ni Rodolfo R. Vasquez, 40, Tagapagsalita ng (mga) pamilyang
apektado, na umaabot lang sa 487.87 metro kuwadrado ang kabuuan ng
mga lupa na kinatitirikan ng mga barung-barung ng 38 pamilya.
"Naninirahan na kami sa mga lupang nabanggit sapul 1950 at pinatunayan
sa mga survey ng NHA noong nakalipas na taon na may karapatan kami sa
mga lupang ito ng pamahalaan," ani Vasquez.
"Pawang lupa ng gobyerno ang mga lupa at ilegal man na patituluhan,
nagawa ito ni Olmedo sa pakikipagsabwatan sa mga project manager at
legal officers ng NHA," sabi ni Vasquez.

Sinabi rin ng mga pamilya na protektado ng dating pinuno ng city hall ng

Maynila, MHS Minister Conrado Benitez, at ilang pinuno ng pulisya ang
barangay chairman kaya "nakalusot" ang mga ginawa nitong katiwalian.

Benitez, at ilang pinuno ng pulisya ang barangay

chairman kaya "nakalusot" ang mga ginawa nitong
katiwalian.

Bukod sa pagkamkam ng mga lupaing gobyerno, kasangkot din umano si

Olmedo sa mga ilegal na pasugalan sa naturang lugar at maging sa mga
nakawan ng manok.1wphi1.nt

Bukod sa pagkamkam ng mga lupaing gobyerno,

kasangkot din umano si Olmedo sa mga ilegal na
pasugalan sa naturang lugar at maging sa mga
nakawan ng manok. . . .

"Sapin-sapin na ang mga kaso na idinulog namin noong nakalipas na mga

taon, pero pinawalang saysay ang lahat ng iyon, kabilang na ang tangkang
pagpatay sa akin kaugnay ng pagrereklamo sa pangangamkam ng lupa
noong 1984," sabi pa ni Vasquez.
Based on the newspaper article, Olmedo filed a complaint for libel against petitioner alleging that
the latter's statements cast aspersions on him and damaged his reputation. After conducting
preliminary investigation, the city prosecutor filed the following information in the Regional Trial
Court of Manila, Branch 40:
The undersigned accuses RODOLFO R. VASQUEZ of the crime of libel
committed as follows:
That on or about April 22, 1986, in the city of Manila, Philippines, the said
accused, with malicious intent of impeaching the reputation and character of
one Jaime Olmedo, chairman of Barangay 66, Zone 6 in Tondo, Manila, and
with evident intent of exposing him to public hatred, contempt, ridicule, did
then and there willfully, unlawfully, feloniously and maliciously caused the
publication of an article entitled "38 Pamilya Inagawan ng Lupa" in Ang
Tinig ng Masa, a daily newspaper sold to the public and of general
circulation in the Philippines in its April 22, 1986 issue, which portion of the
said article reads as follows:
Nananawagan kahapon kay pangulong Corazon Aquino
ang 38 mahihirap na pamilya sa Tondo Foreshore Area
na umano'y inagawan ng lupa ng kanilang barangay
chairman sa pakikipagsabwatan sa ilang pinuno ng
National Housing Authority sapul 1980.
Sinabi nila na nakipagsabwatan umano si Chairman
Jaime Olmedo ng barangay 66, Zone 6, Tondo
Foreshore Area sa mga project manager ng NHA upang
makamkam ang may 14 na lote ng lupa sa naturang
lugar.
. . . "Pawang lupa ng gobyerno ang mga lupa at ilegal
man na patituluhan, nagawa ito ni Olmedo sa
pakikipagsabwatan sa mga project manager at legal
officers ng NHA," sabi ni Vasquez.
Sinabi rin ng mga pamilya na protektado ng dating
pinuno ng city hall ng Maynila, MHS Minister Conrado

with which statements, the said accused meant and intended to convey, as
in fact he did mean and convey false and malicious imputations that said
Jaime Olmedo is engaged in landgrabbing and involved in illegal gambling
and stealing of chickens at the Tondo Foreshore Area, Tondo, Manila, which
statements, as he well knew, were entirely false and malicious, offensive
and derogatory to the good name, character and reputation of said Jaime
Olmedo, thereby tending to impeach besmirch and destroy the honor,
character and reputation of Jaime Olmedo, as in fact, the latter was
exposed to dishonor, discredit, public hatred, contempt and ridicule.
Contrary to law.
Upon being arraigned, petitioner entered a plea of not guilty, whereupon the case was tried. The
prosecution presented Barangay Chairman Olmedo and his neighbor, Florentina Calayag, as
witnesses. On the other hand, the defense presented Ciriaco Cabuhat, Nicasio Agustin, Estrelita
Felix, Fernando Rodriguez all residents of the Tondo Foreshore Area and petitioner as its
witnesses.
On May 28, 1992, the trail court rendered judgment finding petitioner guilty of libel and
sentencing him to pay a fine of P1,000.00. On appeal, the Court of Appeals affirmed in toto.
Hence, this petition for review. Petitioner contends that
I. THE COURT OF APPEALS ERRED IN AFFIRMING
THE DECISION OF THE TRIAL COURT PINPOINTING
PETITIONER AS THE SOURCE OF THE ALLEGED
LIBELOUS ARTICLE.
II. THE COURT OF APPEALS ERRED IN AFFIRMING
THE DECISION OF THE TRIAL COURT THAT
PETITIONER IMPUTED THE QUESTIONED ACTS TO
COMPLAINANT.
III. THE COURT OF APPEALS ERRED IN AFFIRMING
THE DECISION OF THE TRIAL COURT THAT THE
ALLEGED IMPUTATIONS WERE MADE
MALICIOUSLY.
IV. THE COURT OF APPEALS ERRED IN AFFIRMING
THE DECISION OF THE TRIAL COURT WHICH
FAILED TO APPRECIATE PETITIONER'S DEFENSE
OF TRUTH.

V. THE COURT OF APPEALS ERRED IN AFFIRMING

THE DECISION OF THE TRIAL COURT THAT ALL
THE ELEMENTS OF LIBEL WERE PROVEN.
We will deal with these contentions in the order in which they are made.
First. Petitioner claims he was "unfairly singled out" as the source of the statements in the article
when any members of the 38 complainant-families could have been the source of the alleged
libelous statements. 3 The reference is to the following portion of the decision of the Court of
Appeals:
. . . In his sworn statement; appellant admitted he was the source of the
libelous article (Exh. "B"). He affirmed this fact when he testified in open
court as follows: That his allegation on the act of landgrabbing by Olmedo
was based on the alleged report and pronouncements of the NHA
representatives (p. 5, tsn, Oct. 18, 1998); the said allegations were made by
him before the local press people in the pursuit of fairness and truthfulness
and not in bad faith (pp. 8-9, id.); that the only inaccurate account in the
published article of "Ang Tinig ng Masa" is the reference to the 487.87 sq.m.
lot, on which Olmendo's residence now stands, attributed by the reporter as
the lot currently occupied by the appellants and his fellow complainants (pp.
4-5, tsn, Nov. 15, 1989; pp. 4-5, tsn, January 15, 1990); and that after the
interview, he never expected that his statements would be the cause of the
much-publicized libelous article (pp. 4-6, tsn, Nov. 15, 1989). 4
It is true petitioner did not directly admit that he was the source of the statements in the
questioned article. What he said in his own sworn statement 5 was that the contents of the article
are true in almost all respects, thus:
9. Tama and nakalathala sa pahayagang "Ang Masa" maliban na lang sa
tinukoy na ako at ang mga kasamahang maralitang taga-lungsod ay nakitira
sa humugit kumulang 487.87 square meters sapagkat ang nabanggit na
487.87 square meters ay siyang kinatitirikan ng bahay ni Barangay
Chairman Olmedo kung saan nakaloob ang anim na lote isang paglabag
sa batas o regulasyon ng NHA;
10. Ang ginawa kong pahayag na nailathala sa "Ang Masa" ay sanhi ng
aking nais na maging mabuting mamamayan at upang maituwid ang mga
katiwaliang nagaganap sa Tondo Foreshore Area kung saan ako at sampu
ng aking mga kasamang maralitang taga-lungsod ay apektado at naapi.
This was likewise what he stated in his testimony in court both on the direct 6 and on
cross-examination. 7However, by claiming that what he had told the reporter was
made by him in the performance of a civic duty, petitioner in effect admitted authorship
of the article and not only of the statements attributed to him therein, to wit:
"Pawang lupa ng gobyerno ang mga lupa at ilegal man na patituluhan,
nagawa ito ni Olmedo sa pakikipagsabwatan sa mga project manager at
legal officers ng NHA," sabi ni Vasquez.

xxx xxx xxx

"Sapin-sapin na ang mga kaso na idinulog namin noong nakalipas na mga
taon, pero pinawalang saysay ang lahat ng iyon, kabilang na ang tangkang
pagpatay sa akin kaugnay ng pagrereklamo sa pangangamkam ng lupa
noong 1984," sabi pa ni Vasquez.
Petitioner cannot claim to have been the source of only a few statements in the article in
question and point to the other parties as the source of the rest, when he admits that he was
correctly identified as the spokesperson of the families during the interview.
Second. Petitioner points out that the information did not set out the entire news article as
published. In fact, the second statement attributed to petitioner was not included in the
information. But, while the general rule is that the information must set out the particular
defamatory words verbatim and as published and that a statement of their substance is
insufficient, 8 a defect in this regard may be cured by evidence. 9 In this case, the article was
presented in evidence, but petitioner failed to object to its introduction. Instead, he engaged in
the trial of the entire article, not only of the portions quoted in the information, and sought to
prove it to be true. In doing so, he waived objection based on the defect in the information.
Consequently, he cannot raise this issue at this late stage. 10
Third. On the main issue whether petitioner is guilty of libel, petitioner contends that what he
said was true and was made with good motives and for justifiable ends.
To find a person guilty of libel under Art. 353 of the Revised Penal Code, the following elements
must be proved: (a) the allegation of a discreditable act or condition concerning another; (b)
publication of the charge (c) identity of the person defamed; and (d) existence of malice. 11
An allegation is considered defamatory if it ascribes to a person the commission of a crime, the
possession of a vice or defect, real or imaginary, or any act, omission, condition, status or
circumstances which tends to dishonor or discredit or put him in contempt, or which tends to
blacken the memory of one who is dead. 12
There is publication if the material is communicated to a third person. 13 It is not required that the
person defamed has read or heard about the libelous remark. What is material is that a third
person has read or heard the libelous statement, for "a man's reputation is the estimate in which
others hold him in, not the good opinion which he has of himself." 14
On the other hand, to satisfy the element of identifiability, it must be shown that at least a third
person or a stranger was able to identify him as the object of the defamatory statement. 15
Finally, malice or ill will must be present. Art. 354 of the Revised Penal Code provides:
Every defamatory imputation is presumed to be malicious, even if it be true,
if no good intention and justifiable motive for making it is shown, except in
the following cases:
1. A private communication made by any person to
another in the performance of any legal, moral or
security duty; and

2. A fair and true report, made in good faith, without any

comments or remarks, of any judicial, legislative or
other official proceedings which are not of confidential
nature, or of any statement, report or speech delivered
in said proceedings, or of any other act performed by
public officers in the exercise of their functions.

55 Third Street
New Manila, Quezon City
Dear Atty. Sarmiento:

In this case, there is no doubt that the first three elements are present. The statements that
Olmedo, through connivance with NHA officials, was able to obtain title to several lots in the area
and that he was involved in a number of illegal activities (attempted murder, gambling and theft
of fighting cocks) were clearly defamatory. There is no merit in his contention that
"landgrabbing," as charged in the information, has a technical meaning in law. 16Such act is so
alleged and proven in this case in the popular sense in which it is understood by ordinary
people. As held inUnited States v. Sotto: 17
. . . [F]or the purpose of determining the meaning of any publication alleged
to be libelous "that construction must be adopted which will give to the
matter such a meaning as is natural and obvious in the plain and ordinary
sense in which the public would naturally understand what was uttered. The
published matter alleged to be libelous must be construed as a whole. In
applying these rules to the language of an alleged libel, the court will
disregard any subtle or ingenious explanation offered by the publisher on
being called to account. The whole question being the effect the publication
had upon the minds of the readers, and they not having been assisted by
the offered explanation in reading the article, it comes too he to have the
effect of removing the sting, if any there be, from the words used in the
publication.

In connection with your request, that you be furnished with a copy of the
results of the investigation regarding the complaints of some Tondo
residents against Chairman Jaime Olmedo, we are providing you a
summary of the findings based on the investigation conducted by our Office
which are as follows:
1. Based on the subdivision plan of Block 260, SB 8, Area III, Jaime
Olmedo's present structure is constructed on six lots which were awarded
before by the defunct Land Tenure Administration to different persons as
follows:
Lot 4 Juana Buenaventura 79.76 sq. m.
Lot 6 Servando Simbulan 48.50 sq. m.
Lot 7 Alfredo Vasquez 78.07 sq. m.
Lot 8 Martin Gallardo 78.13 sq. m.
Lot 9 Daniel Bayan 70.87 sq. m.

Nor is there any doubt that the defamatory remarks referred to complainant and were published.
Petitioner caused the publication of the defamatory remarks when he made the statements to
the reporters who interviewed him. 18

Lot 1 Fortunato de Jesus 85.08 sq. m. (OIT No.

7800)

The question is whether from the fact that the statements were defamatory, malice can be
presumed so that it was incumbent upon petitioner to overcome such presumption. Under Art.
361 of the Revised Penal Code, if the defamatory statements is made against a public official
with respect to the discharge of his official duties and functions and the truth of the allegation is
shown, the accused will be entitled to an acquittal even though he does not prove that the
imputation was published with good motives and for justifiable ends. 19

The above-mentioned lots were not yet titled, except for Lot 1. Fortunato de
Jesus sold the said lot to a certain Jovita Bercasi, a sister-in-law of Jaime
Olmedo. The other remaining lots were either sold to Mr. Olmedo and/or to
his immediate relatives.
Lot 14 is also titled in the name of Mariano Bercasi, father-in-law of Jaime
Olmedo, with an area of 47.40 sq. m.

In this case, contrary to the findings of the trial court, on which the Court of Appeals relied,
petitioner was able to prove the truth of his charges against the barangay official. His allegation
that, through connivance with NHA officials, complainant was able to obtain title to several lots at
the Tondo Foreshore Area was based on the letter20 of NHA Inspector General Hermogenes
Fernandez to petitioner's counsel which reads:

The lot assigned to Chairman Olmedo has a total area of 487.87 sq. m.
2. Block 261, SB 8, Area III
09 August 1983

Atty. Rene V. Sarmiento

Lot No. 7 is titled in the name of Jaime Olmedo, consisting an area of

151.67 sq., m. A four-door apartment owned by Mr. Olmedo is being rented
to uncensused residents.

Free Legal Assistance Group (FLAG)

3. Block 262, SB 8, Area III

Lot No. 13 is allocated to Delfin Olmedo, nephew of Jaime Olmedo, but this
lot is not yet titled.

complainant committed the crimes." For that is not what petitioner said as reported in the Ang
Tinig ng Masa. The fact that charges had been filed against the barangay official, not the truth of
such charges, was the issue.

4. Block 256, SB 5, Area III

In denouncing the barangay chairman in this case, petitioner and the other residents of the
Tondo Foreshore Area were not only acting in their self-interest but engaging in the performance
of a civic duty to see to it that public duty is discharged faithfully and well by those on whom
such duty is incumbent. The recognition of this right and duty of every citizen in a democracy is
inconsistent with any requirement placing on him the burden of proving that he acted with good
motives and for justifiable ends.

Victoria Olmedo, uncensused, is a daughter of Jaime Olmedo. Her structure

is erected on a non-titled lot. The adjacent lot is titled in the name of
Victoria. It was issued OCT No. 10217 with an area of 202.23 sq. m. Inside
this compound is another structure owned and occupied by Amelia Dofredo,
a censused houseowner. The titled lot of Victoria now has an area of 338.20
sq. m.
For your information.
(s/t)
HER
MOG
ENE
S C.
FER
NAN
DEZ

For that matter, even if the defamatory statement is false, no liability can attach if it relates to
official conduct, unless the public official concerned proves that the statements was made with
actual malice that is, with knowledge that it was false or with reckless disregard of whether it
was false or not. This is the gist of the ruling in the landmark case of New York Times
v. Sullivan, 25 which this Court has cited with approval in several of its own decision. 26 This is the
rule of "actual malice." In this case, the prosecution failed to prove not only that the charges
made by petitioner were false but also that petitioner made them with knowledge of their falsity
or with reckless disregard of whether they were false or not.

A rule placing on the accused the burden of showing the truth of allegations of official
misconduct and/or good motives and justifiable ends for making such allegations would not only
be contrary to Art. 361 of the Revised Penal Code. It would, above all, infringe on the
constitutionally guaranteed freedom of expression. Such a rule would deter citizens from
Inspector General
performing their duties as members of a self-governing community. Without free speech and
assembly, discussions of our most abiding concerns as a nation would be stifled. As Justice
Brandeis has said, "public discussion is a political duty" and the "greatest menace to freedom is
Public
27
Assistancean
& inert people."
Action Office
Complainant contends that petitioner was actuated by vengeful political motive rather than by his
firm conviction that he and his fellow residents had been deprived of a property right because of
In addition, petitioner acted on the basis of two memoranda, 21 both dated November
acts attributable to their barangay chairman. The Court of Appeals, sustaining complainant's
29, 1983, of then NHA General Manager Gaudencio Tobias recommending the filing of
contention, held:
administrative charges against the NHA officials "responsible for the alleged irregular
consolidation of lots [in Tondo to Jaime and Victoria Olmedo.]"
With regard to the other imputations made by petitioner against complainant, it must be noted
that what petitioner stated was that various charges (for attempted murder against petitioner,
gambling, theft of fighting cocks) had been filed by the residents against their barangay
chairman but these had all been dismissed. Petitioner was able to show that Olmedo's
involvement in the theft of fighting cocks was the subject of an affidavit-complaint, 22 dated
October 19, 1983, signed by Fernando Rodriguez and Ben Lareza, former barangay tanods of
Barangay 66, Zone 6, Tondo. Likewise, petitioner presented a resolution, 23 dated March 10,
1988, of the Office of the Special Prosecutor in TBP-87-03694, stating that charges of
malversation and corrupt practices had been filed against Olmedo and nine (9) other barangay
officials but the same were dismissed. Indeed, the prosecution's own evidence bears out
petitioner's statements. The prosecution presented the resolution 24 in TBP Case No. 84-01854
dismissing the charge of attempted murder filed by petitioner against Jaime Olmedo and his
son-in-law, Jaime Reyes. The allegation concerning this matter is thus true.1wphi1.nt
It was error for the trial court to hold that petitioner "only tried to prove that the complainant
[barangay chairman] is guilty of the crimes alluded to; accused, however, has not proven that the

That the said imputations were malicious may be inferred from the facts that
appellant and complainant are enemies, hence, accused was motivated by
vengeance in uttering said defamatory statements and that accused is a
leader of Ciriaco Cabuhat who was defeated by complainant when they ran
for the position of barangay captain. . . . 28
As already stated, however, in accordance with Art. 361, if the defamatory matter
either constitutes a crime or concerns the performance of official duties, and the
accused proves the truth of his charge, he should be acquitted. 29
Instead of the claim that petitioner was politically motivated in making the charges against
complainant, it would appear that complainant filed this case to harass petitioner. Art. 360 of the
Revised Penal Code provides:
Persons responsible. Any person who shall publish, exhibit, or cause the
publication or exhibition of any defamation in writing or by similar means,
shall be responsible for the same.

The author or editor of a book or pamphlet, or the editor or business

manager of a daily newspaper, magazine or serial publication, shall be
responsible for the defamation's contained therein to the same extent as if
he were the author thereof. . . .
Yet, in this case, neither the reporter, editor, nor the publisher of the newspaper was
charged in court. What was said in an analogous case 30 may be applied mutatis
mutandis to the case at bar:
It is curious that the ones most obviously responsible for the publication of
the allegedly offensive news report, namely, the editorial staff and the
periodical itself, were not at all impleaded. The charge was leveled against
the petitioner and, "curiouser" still, his clients who have nothing to do with
the editorial policies of the newspaper. There is here a manifest effort to
persecute and intimidate the petitioner for his temerity in accusing the ASAC
agents who apparently enjoyed special privileges and perhaps also
immunities during those oppressive times. The non-inclusion of the
periodicals was a transparent hypocrisy, an ostensibly pious if not at all
convincing pretense of respect for freedom of expression that was in fact
one of the most desecrated liberties during the past despotism.31
WHEREFORE, the decision of the Court of Appeals is REVERSED and the petitioner is
ACQUITTED of the crime charged.
SO ORDERED.

In 1995, Cristy was entrusted to the care of the accused and his wife, Felicitas Balisi Llanto, the
sister of Cristys father. The accused is a member of the Philippine Air Force. They lived in Clark
Airbase, then moved to Mactan Airbase, Lapu-Lapu City, Cebu, and in 1999, transferred to a
house in Villamor Airbase in Pasay City.
On November 12, 1999, only Cristy and the accused were home. The accuseds wife was then
in Tuguegarao, Cagayan, while one of their two sons was in Laguna and the other was in Cebu.
At about 9:00 p.m., while Cristy was studying downstairs, the accused told her that it was
already time to go to bed. The accused pulled her to his room upstairs, removed her shirt, bra
and panty. Cristy cried. He tied her hands, mashed her breasts, kissed her private part, and
inserted his two fingers into her vagina, causing her pain. He inserted his organ into her private
part. The whole time, she could not fight the accused as he tied her hands and held a knife. After
satiating his lust, he threatened her not to tell on him, then untied her hands. That was not the
first time the accused ravished her. When they lived in Cebu, the accused violated her about
three times a week when only the two of them were left in the house.
G.R. No. 146458

January 20, 2003

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
CAPT. MARCIAL LLANTO Y LEUTERIO, accused-appellant.
PUNO, J.:
The one battle the accused Capt. Marcial Llanto lost was fought against himself. He utterly failed
to measure up to the yardstick of an officer and a gentleman when he was subdued by the beast
in him and he committed lechery upon his minor kin.
On February 29, 2000, an information for rape was filed against the accused Llanto, viz:
"That on or about (the) twelfth day of November, 1999 at Pasay City and within the
jurisdiction of this Honorable Court, the above-named accused, actuated by lust, with
use of a knife, through force, violence and intimidation, and by taking advantage of his
moral ascendancy over his twelve (12) year old minor niece MARIA CRISTY T.
BALISI, did then and there willfully, unlawfully and feloniously have carnal knowledge
of Ma. Cristy T. Balisi against her will and consent, to her damage and prejudice in
whatever amounts may be awarded to her under provisions of the Civil Code.
CONTRARY TO LAW."1
The accused pleaded not guilty. Trial ensued.
The records show that Ma. Cristy Balisi was born to Gertrudes Balisi and Raul Balisi on
December 20, 1986. Her parents separated when she was six months old and from then on her
maternal grandmother took care of her until she was eight years old. Her mother lives with her
(Cristys) uncle in Litex, Quezon City while her father lives with his common law wife in Calamba,
Laguna.

The next day, November 13, 1999, Cristy told the accused that she would go to school, but
instead proceeded to her aunt, Dolores Balisi, the sister of the accuseds wife. She divulged to
Dolores her ordeal in the hands of the accused. Dolores brought her to the National Bureau of
Investigation (NBI) where Cristy executed a sworn statement2 and filled out a complaint
sheet.3 Dr. Annabelle Soliman examined her and made a medico-genital report.
Cristy denied the claims of the accuseds family that they scolded her for repeatedly stealing
money from them. She also explained that she did not include in her sworn statement that the
accused tied her hands when he committed the lechery on her because she was not asked what
the accused did first before consummating coitus with her.4
Dr. Annabelle Soliman, medico-legal officer of the NBI, testified that she examined Cristy Balisi
on November 17, 1999 upon her complaint that the accused had been raping her since 1996,
the last of which was on November 12, 1999. Cristy was twelve years old at the time of the
examination. The findings showed that the victims hymen was tall, thick, intact, and distensible
or elastic and there was no sign of extra-genital injury. During the examination on Cristy, a tube
2.5 centimeters in diameter was inserted into her hymenal opening without any injury. Her
hymenal opening is wide at 2.5 centimeters in diameter so as to allow complete penetration by
an average-sized adult Filipino male organ in full erection, about 2.5 centimeters, without
producing genital/hymenal injury.5 Dr. Soliman opined that it is possible for the hymen to remain
intact even if it had been penetrated several times as the rupture of the hymen depends on the
manner of insertion and the opening of the orifice. If the insertion is gentle, it might not break the
hymen. If a woman is struggling when being raped, the penis might not fully penetrate the
hymen, thus leaving it intact.6
Rosalina Chiong, NBI agent, corroborated Cristys testimony that she filled out a complaint
sheet.7 Chiong prepared a request for medico-legal examination8 then took the victims sworn
statement.9 She also received a copy of the examination results.10 During her testimony, Chiong
presented a photocopy of a certification from the Office of the Civil Registrar indicating that
Cristy was born to Gertrudes Tullawan and Raul Balisi on December 20, 1986.11
The accused took the witness stand. He is a captain of the Philippine Air Force assigned as
officer-in-charge at the Air Force Holding Center of Villamor Air Base. Previously, he was
assigned at Camp Lapu-Lapu, Laoag, Cebu City. He is married and has two children, Jessel
aged 25 and Jonnel, 24.

He narrated that Cristy started to live with his family in 1994 when she was eight years old.
Although she is only his niece, her father being the younger brother of his wife, he and his wife
treated Cristy like a real daughter. They cared for her, supported her schooling and provided her
food, clothing and other needs. Cristy loved him and his wife and had been like a good daughter
to them.
When the accused was assigned at Villamor Air Base in Pasay, Cristy stayed with the accuseds
wife at Clark Air Base. In 1996, when the accused was transferred to the Visayas Command, the
accuseds family, along with Cristy, moved to Cebu. The accused stayed in the Bachelor Officers
Quarters in Camp Lapu-Lapu, Cebu while Cristy resided with the accuseds wife at the Junior
Officers Quarters at Mactan Air Base, Lapu-Lapu, Cebu, an hours drive from where the accused
was staying. He rarely went home to Mactan Air Base because of his hectic schedule.
In June 1999, the accused was re-assigned to Manila. The accused, his wife Felicitas and Cristy
transferred to San Pedro, Laguna and stayed with Felicitas sister, Elizabeth Balisi. From there,
they transferred to the Airmens Village on July 16, 1999.
On November 12, 1999, the alleged date of the rape, the accused was with his elder son,
Jessel, at Mahada Alpha, Barangay Mayapa, Calamba, Laguna. He left Villamor Air Base at 2:00
p.m. and arrived at Mahada Alpha at 5:00 p.m. At past 5:00 p.m., he met his son Jessel outside
the factory of Yukusha, Philippines where the latter worked. He informed Jessel that his younger
brother Jonnel called up to ask about his petition papers for Canada. After they talked, Jessel
borrowed the accuseds car and had a joy ride with his co-workers while the accused proceeded
to the house Jessel rented. The accused talked with Alma Saberola, the daughter of Jessels
landlord. When Jessel arrived at about 7:30 p.m., he told the accused that the cars headlights
were not functioning. The accused checked the headlights and tried to fix them in vain. So, he
decided to spend the night in Jessels place as it was difficult to drive in the dark. He left
Calamba the following morning at 7:00 a.m.
Cristy repeatedly stole money from the accused and his wife, but asked for forgiveness. At first,
the accused forgave her, but the last straw came on November 13, 1999 when he came home
from Calamba. He found out that the one thousand pesos in the pocket of his pants hanging on
the wall was missing. When Cristy arrived, he confronted her about it. The accused and his wife
severely scolded her and even threatened her with a hammer to reform her, but she did not say
a word and just went out of the room. The accused followed her and she returned five hundred
pesos as she had already spent the other five hundred. Later that day, he brought Cristy to
Calamba to tell Jessel that he was fed up with her, then the two went back home to Villamor Air
Base. He decided to stop financing her schooling and to return her to her parents. At 8:00 p.m.,
the accused went to his office and spent the night there. The following day, the accused found
out that Cristy ran away from home. He asked her whereabouts from her relatives and
classmates and learned that Cristy did not go to school nor was she with her Aunt Dolores or her
father. He did not report the matter to the barangay and police authorities, nor did he make it
known at the Villamor Air Base. He suggests that she ran away because of his decision to stop
supporting her schooling.
The accused claims that Cristy filed charges of rape against him upon instigation of her mother,
Gertrudes Tullawan, and a certain Silverio Escobar to extort his P500,000.00 retirement
benefits. Escobar, an NBI agent who was his wifes kababayan, called him up one time and told
him that a complaint was filed against him, then asked for P500,000.00. The accused did not
give Escobar the money as his conscience was clear. Besides, he did not have any money. The
following day, the accused received a subpoena. It was then that he learned that Cristy,
accompanied by her mother, filed a complaint against him.

It appears that Cristy filed another complaint for rape against the accused and the case is
pending at the Regional Trial Court of Cebu.12
The son of the accused, Jessel Llanto, corroborated his fathers testimony that he was with him
on November 12, 1999. His father visited him in Calamba, Laguna to ask if the petition papers
for Canada had already been sent by his aunt, his fathers sister. They met at about 5:30 at the
factory where Jessel worked. They then proceeded to Jessels place at about 6:00 p.m. and
there talked about the petition papers. Alma Saberola and the other children of Jessels landlord
and some of Jessels friends were there. After about an hour, Jessel borrowed the accuseds car
and with a friend named Jonathan and another companion, went to a friends place at Palo Alto,
Calamba, Laguna. On their way home, they passed a very big hump, but they were not able to
slow down, causing the front of the car to jerk and destroy the headlights. When they reached
home, Jessel told his father that the headlights were not working. As it was dangerous to drive in
the dark, his father decided to spend the night there and left the following morning for Villamor
Air Base. Later that day, at around 6:00 p.m., his father returned to Calamba with Cristy and told
Jessel that he would return Cristy to her parents as he was fed up with her stealing. Jessel
treated Cristy like his younger sister and begged his father to give her another chance.13
Alma Saberola, Jessels landlady and sister of Jessels co-worker, corroborated the accuseds
testimony. She met the accused when he visited Jessel in her house on November 12, 1999.
The accused arrived in her house at about 5:30 p.m. while Jessel was out for a joy ride using the
accuseds car. When Jessel brought the car home, its headlights no longer functioned. The
accused thus decided to spend the night at Jessels place and left at about 7:00 a.m. the
following day.14
Felicitas Balisi, wife of the accused, testified for the defense. She is the older sister of Raul,
Cristys father. She has two children with the accused. In 1993, when Cristy was only seven
years old, she started living with her and her family. Felicitas was not particularly delighted with
Cristy as she was hard-headed and not nice. She repeatedly stole money from them from the
time she started living with them. She and her husband brought Cristy with them wherever he
was assigned, first at Clark Air Base, then at Mactan Air Base in Cebu City. In June 1999,
Felicitas family stayed with her sister, Elizabeth Balisi, in San Pedro, Laguna as the accused
was assigned at Villamor Air Base in Pasay. The following month, Cristy no longer lived with
Felicitas family. Felicitas rented a house for Cristy and her mother, Gertrudes Tullawan. They
were later joined by Cristys brother, Teodoro, who used to live with Felicitas sister, Dolores
Balisi, as the latter supported his studies.
In November 1999, the accused confided to her that he had a problem with a certain Silverio
Escobar who was asking for half a million pesos from him. Escobar was a neighbor of the Balisis
in Ogak, Norte, Tuguegarao and he used to play with Felicitas in the Balisi residence in their
childhood days. Escobar also asked money from Felicitas in October 1999 when she was in
Tuguegarao. He threatened her that if she did not give the amount, he would kill her husband.
Escobar represented to her that he was an NBI agent, but Felicitas learned from the Chief of the
Operation Unit of the NBI that he was not. She saw Escobar talk with Cristys mother several
times from September to November 1999. In the year 2000, he reiterated his demand for money,
but this time in whatever amount she could afford. He told Felicitas that the accused raped
Cristy. She was shocked and refused to believe him, and told him that she had no money at that
time. But as he was insistent, she gave him P1,000.00, in addition to the P5,000.00 she gave
him in October. Felicitas contradicted herself in another part of her testimony and stated that she
learned of the rape charges filed by Cristy against her husband in 1999, but could not remember
the exact date as her memory was dulled by an operation for myoma she underwent. 15

Dolores Balisi, elder sister of Cristys father, sided with the accused. She refuted Cristys
testimony that right after the accused raped her, Cristy reported to her and she accompanied
Cristy to the NBI, then the latter stayed with her. Dolores went to the accuseds house on
November 1, 1999 and observed that the relationship between Cristy and the accused seemed
normal; Cristy did not reveal to her anything unusual about their relationship. Even the accused
and his wife spoke highly of Cristy as a very good and obedient girl. After Dolores saw Cristy and
her mother on the last week of November 1999, she never saw Cristy again. Cristys mother,
Gertrudes Tullawan, informed her that she was already in the custody of the DSWD.
According to Dolores, a certain Silverio Escobar often goes to her house and talks to Tullawan
who lived with Dolores for about a year, from July 1999 to March 25, 2000. Escobar introduced
himself as an NBI agent, but Dolores learned from her friends that he was lying. Cristys brother
also lived with Dolores for four years.16
The defense also offered the testimony of Arsenio C. Pascual, surgeon and lawyer, and Dr.
Marilyn Ricardo, gynecologist, for them to give their expert opinion regarding the medical
certificate Dr. Soliman issued. They were supposed to testify that although the finding that the
hymen is intact is dispensable in rape cases in general, it negates the charge of rape in Cristys
case as she claimed to have been raped at least three times. But the trial court did not allow the
presentation of these two witnesses as according to it, this Court has ruled that a medical
certificate is not even necessary in rape cases. The prosecution likewise pointed out that their
testimonies were not necessary as the Court has ruled that there could be sexual intercourse
without laceration of the hymen and they never examined the victim.17
The trial court upheld the version of the prosecution and sentenced the accused to the supreme
penalty of death,viz.:
"WHEREFORE, in view of the foregoing, the Court finds the accused Capt. Marcial
Llanto y Leuterio guilty beyond reasonable doubt of RAPE and is hereby sentence
(sic) to DEATH and ordered to pay the victim civil indemnity in the amount of Php
75,000.00 and moral damages in the amount of Php 50,000.00."18
Hence, the case is before us on automatic review. The defense assails the decision on the
ground that the trial court misappreciated the facts and misapplied the law, and gravely abused
its discretion in not admitting the testimonies of their medico-legal experts.
The appeal is partially meritorious.
The accused avers that the trial court erred in believing Cristys testimony that he raped her in
Cebu thrice a week because the accused stayed at the Bachelor Officers Quarters, an hours
drive away from where the complainant and the accuseds family stayed. That she was not
raped on November 12, 1999 in Pasay City nor thrice a week in Cebu is confirmed by the
gynecological examination conducted upon her, which showed that her hymen was intact and
there was no injury to her external genitalia. The trial court gravely abused its discretion,
according to the defense, when it refused to admit the testimonies of their medical experts who
would have given their expert opinion that it was improbable for the victim to have been raped
three times a week and her hymen to have remained intact.19
That Cristy was allegedly raped by the accused in many instances other than on November 12,
1999 and her hymen remained intact do not lend support to the cause of the accused. In People
v. Caballes,20 the fourteen year-old victim was raped nine times by her father in a span of four

months. The first time she was raped, her father poked a knife at her, similar to the instant case.
He had his way with her daughter without the latter struggling as she was afraid. She felt pain in
her organ. In the other eight rape instances, the victim also acceded to her fathers advances as
he threatened her. A medical examination upon the victim showed that the victims hymen was
thick and very elastic. It had no lacerations and remained intact. The examining physician
presented by the prosecution opined that it is possible for a womans hymen to remain intact
even after having been raped if it is lax, thick and elastic. She testified, viz.:
"Q - Is it possible for a woman to be raped 9 times and still would not sustain any
injury or laceration in her hymen?
A - As I said depending on the degree of penetration and the force of the
penetration. And also depending on the kind of hymen a woman has.
Q

Can you explain a little more on that?

A - As I said if the woman has a thick, elastic or lax hymen and just a very slight
degree of penetration like 1/8, 1/4 fractions proportion, then the hymen may not break.
. ."21
The trial court convicted the accused of all nine counts of rape. On appeal to this Court, among
the accuseds assignment of errors was that the victims intact hymen was inconsistent with her
charges of rape. This Court upheld the conviction as jurisprudence is replete with rulings that
mere entry of the male organ into the lips of the female organ, without rupture of the hymen or
laceration of the vagina, is sufficient to warrant conviction.
In People v. Santos,22 the accused was charged of raping the helpless eight-year old
complainant. He assailed the credibility of the victim as according to him it was impossible for
her to have been raped up to twenty times, but her hymen remained intact. The Court found no
merit in the accuseds contention, viz:
"We find no merit in the contention of accused-appellant. Dr. Cenido thoroughly
discussed these intriguing hymenal qualities, but the accused-appellant would,
understandably so, pretend to find the whole concept as obscure. He said that, as a
general rule, a hymen that is intact would negate prior sexual intercourse but that the
rule was not absolute as penetration can happen with or without rupturing the hymen.
He confirmed that there were women whose hymens remained intact even after giving
birth owing to the fact that their hymens must be very elastic. . .
The doctors conclusions do not establish a novice medical nor legal theory. Our
jurisprudence is replete with cases which would easily lay waste any attempt by
accused-appellant to dent the credibility of the victim. The fact that there was no deep
penetration of the victims vagina and that her hymen was still intact does not negate
the commission of rape. Rape can be consummated even with the slightest
penetration. It is enough that there is proof of entrance of the male organ into the labia
or pudendum of the female organ (footnotes omitted), or a penetration, however slight
of the external genitalia (footnotes omitted)." 23(emphasis supplied)
Applying these rulings to the case at bar, it is possible for the victims hymen to remain intact
despite repeated sexual intercourse. Dr. Soliman testified that during the examination on Cristy,

a tube 2.5 centimeters in diameter was inserted into her hymenal opening without any injury. Her
hymenal opening is wide at 2.5 centimeters in diameter so as to allow complete penetration by
an average-sized adult Filipino male organ in full erection, about 2.5 centimeters, without
producing genital/hymenal injury.24 Likewise, whether the accuseds penis fully or only partially
penetrated the victims genitalia, it is still possible that her hymen would remain intact because it
was thick and distensible or elastic. We stated in People v. Aguinaldo25 that the strength and
dilability of the hymen varies from one woman to another such that it may be so elastic as to
stretch without laceration during intercourse, or on the other hand, may be so resistant that its
surgical removal is necessary before intercourse can ensue26 In some cases even, the hymen is
still intact even after the woman has given birth.27
In view of Dr. Solimans medical examination and opinion and the foregoing rulings of this Court
that support the finding that a thick and elastic hymen can remain intact despite several
instances of sexual intercourse, we find that the trial court was not in error in not admitting the
expert testimonies of the defense witnesses who did not examine Cristy.
Alternatively, the accused argues that even assuming he had sexual intercourse with Cristy, it
was not shown that he had his way with her through violence or intimidation. 28 Quite the
contrary, Cristys testimony shows that she was intimidated. She was afraid and not able to fight
and resist the accuseds advances because he held a knife and tied her hands, viz.:
"Q:

Q:

Besides mashing or touching your breast, what else did he do?

A:

He kissed my vagina.

Q:

What else happened?

Witness:

He inserted his two fingers inside my vagina.

Fiscal Barrera:
vagina?
A:

And what did you feel when he inserted his two fingers inside your

I felt pain. It is (sic) painful.

Q:
During the time he fondle (sic) your breasts and put his two fingers inside your
vagina, did you fight back?
A:

No, sir.

Q:

Why?

What did you do when he removed your T-shirt, shorts, bra and panty?

A:

I just keep (sic) on crying. I was crying.

Q:

Did you not fight back when he removed your T-shirt, shorts, bra and panty?

A:

No. sir.

Q:

Why?

A:

Because I was afraid of him.

Q:

Why were you afraid of him?

A:

I was afraid because he was holding a knife.

A:
Because my hands were tied. I could not fight as my two hands were tied and
he was holding a knife and I was afraid.
Q:
After he mashed your breast and inserted his two fingers inside your vagina
while your two hands were tied, what happened next?
A:

He inserted his penis inside my vagina.

Q:

What did you feel when he inserted his penis inside your vagina?

A:

I felt pain.

Q:

What happened after he inserted his penis inside your vagina?

A:

He threatened me not to tell anyone about what happened.

Q:
And after removing your T-shirt, shorts, bra and panty and you felt afraid
because he was holding a knife, what happened next?

Q:

What happened next after he threatened you?

A:

A:

He untied me. He removed the tie on my hands.29

He tied my both hands.

Q:
Will you demonstrate how the accused tied your both hands? Witness
demonstrating by raising her two hands and putting them at the back of her head.
After the accused Marcial Llanto tied your hands at your back, what happened?
A:

Cristys affidavit also shows that she was threatened with a knife every time the accused raped
her, so she did not fight the accused, viz.:
"6.

T:

Ano ang ginawa ng Tito MARCIAL mo at inirereklamo mo siya ngayon?

S:

Ni-rape po niya ako.

He started touching me by mashing my breasts.

7.

T:

Kailan ka ni-rape ng Tito MARCIAL mo?

S:

December 1, 1996.

8.

T:

S:

Maraming beses na po.

T:

Natatandaan mo pa ba ang mga petsa?

S:

Hindi po.

T:

Kailan yung huling insidente?

S:

November 12, 1999.

Ilang beses kang ni-rape ng Tito MARCIAL mo?

xxx
18.

T:

xxx

xxx

Papaano ka nire-rape ng Tito MARCIAL mo?

S: Pinapahiga ako sa kama. Hinuhubaran ako, pinapatungan ako tapos ay

ipinapasok niya yung ari niya sa ari ko.
19. T:
mo?

Bakit hindi ka humihingi ng tulong tuwing nire-rape ka ng Tito MARCIAL

S: Natatakot po ako dahil palagi siyang may hawak ng (sic) kutsilyo na may tela sa
tuwing nire-rape niya ako.
20.
S:

T:

Para saan yung tela?

Iyon po ang ipinanghahawak niya sa kutsilyo."30

Physical resistance need not be proved in rape when intimidation is exercised upon the victim
and the latter submits herself, against her will, to the rapists advances because of fear for her
life and personal safety.31 It suffices that the intimidation produces fear in the mind of the victim
that if she did not submit to the bestial demands of the accused, something far worse would
befall her at the time she was being molested. As held by the Court, "(i)f resistance would
nevertheless be futile because of intimidation, then offering none at all does not mean consent to
the assault so as to make the victims submission to the sexual act voluntary."32 We have ruled in
several rape cases that threatening the victim with bodily injury while holding a knife or
a bolo constitutes intimidation sufficient to bring a woman to submission to the lustful desires of
the molester.33
The accused stresses that rape is hard to prove, but harder for him to disprove, though innocent.
Especially when the allegation of rape is based solely on the testimony of the complaining
witness, the latters story should be carefully examined and the accused should not be convicted

unless the testimony is impeccable. In assessing Cristys credibility, the accused implores the
Court to consider her bad character, shown by her frequently going out with male companions
and coming home late34 and her penchant for lying such as her alleged report of the rape to
Dolores Balisi which the latter denied. Likewise, the accused faults the trial court for discarding
Dolores testimony because blood is thicker than water, so Dolores was expected to side with
the accused. Following this reasoning of the trial court, the accused argues that there was more
reason for Dolores to come to Cristys aid because she is a relative by blood, being the daughter
of Dolores brother, while the accused is only a relative by affinity.35 The accused suggests that
Cristy merely fabricated the rape charges to extort his P500,000.00 retirement benefits and to
retaliate against him because he scolded her for stealing money from him and his wife,
neglecting her duties at home, and frequently watching television and gossiping with their
neighbors. It was simply inconceivable for the accused to rape Cristy whom he treated like a
family member.
The accused cannot fault the trial court for relying on Cristys sole eyewitness account in
convicting him. This Court has long held that the testimony of a sole eyewitness is sufficient to
support a conviction so long as it is clear, straightforward and worthy of credence by the trial
court.36 Neither does the self-serving evidence of the accused convince us that Cristy was
merely instigated by her mother to file the rape complaint to extort his P500,000.00 retirement
benefits. Nor does the imputation of Cristys bad character affect her credibility as the victims
character is immaterial in a rape case.37 Likewise, the testimonies of the defense witnesses on
her alleged stealing are inconsistent and not worthy of credence. The accused testified that
Cristy repeatedly stole money from him and his wife, but at the same time said that she was like
a good daughter to them. His wife Felicitas, on the other hand, testified that Cristy was hardheaded and not nice and repeatedly stole money from her and her husband since she started
living with them in 1993. Felicitas sister, Dolores, stated that the accused and Felicitas spoke
highly of Cristy as a good and obedient girl. Considering these inconsistent testimonies, we are
not convinced with the accuseds allegation that Cristy filed the rape charges in retaliation to his
scolding her for stealing money and deciding to stop financing her schooling.
On the contrary, we have consistently taken judicial notice of the fact that no woman, especially
one so young like Cristy, would concoct a tale of defloration, allow the examination of her private
parts, and undergo the expense, trouble, inconvenience and trauma of a public trial if she were
not motivated by the desire to have the culprit apprehended and punished.38 Cristys testimony
deserves credence over the testimonies of the accused and the trial court correctly held, viz.:
"In this particular case, the minor complainant has been under the care of the accused
Marcial Llanto and Felicitas Balisi Llanto for a period of four years providing for her
sustenance, support and education and it would be unbelievable that a child of such
tender age, not exposed to the ways of the world would impute a crime so serious as
rape to the person who took care of her, supported her and sent her to school if it is
not true and she is motivated by the desire to have the accused apprehended and
punished to vindicate her honor."39
Anent the accuseds alibi, suffice it to say that the defense of alibi is inherently weak and easily
fabricated.40 This cannot prevail over Cristys positive identification, unless buttressed by strong
evidence of non-culpability.41
The trial court erred, however, when it meted out to the accused the supreme penalty of death
under Article 266-B of the Revised Penal Code which provides that the death penalty shall be
imposed when "the victim is under eighteen (18) years of age and the offender is a parent,

ascendant, step-parent, guardian, relative by consanguinity or affinity within the third civil
degree, or the common-law spouse of the parent of the victim."42 The information reads, viz.:
"That on or about (the) twelfth day of November, 1999 at Pasay City and within the
jurisdiction of this Honorable Court, the above-named accused, actuated by lust, with
use of a knife, through force, violence and intimidation, and by taking advantage of his
moral ascendancy over his twelve (12) year old minor niece MARIA CRISTY T.
BALISI, did then and there willfully, unlawfully and feloniously have carnal knowledge
of Ma. Cristy T. Balisi against her will and consent, to her damage and prejudice in
whatever amounts may be awarded to her under provisions of the Civil Code."43
The Revised Rules of Criminal Procedure, which took effect on December 1, 2000, require both
qualifying and aggravating circumstances to be alleged in the information, viz:
"SEC. 8. Designation of the offense. The complaint or information shall state the
designation of the offense given by the statute, aver the acts or omissions constituting
the offense, and specify its qualifying and aggravating circumstances. . .
SEC. 9. Cause of the accusation. The acts or omissions complained of as
constituting the offense and the qualifying and aggravating circumstances must be
stated in ordinary and concise language and not necessarily in the language used in
the statute but in terms sufficient to enable a person of common understanding to
know what offense is being charged as well as its qualifying and aggravating
circumstances and for the court to pronounce judgment."
While the rape in the case at bar was committed on November 12, 1999, we shall give
retroactive application to Secs. 8 and 9, supra, as they are favorable to the accused.
In a catena of cases, we have ruled that the allegation that the accused is the "uncle" of the
victim and the latter is his "niece" is not specific enough to satisfy the special qualifying
circumstance of relationship under Art. 266-B,supra. In People v. Lachica,44 we held:
"If the offender is merely a relation not a parent, ascendant, step-parent, or guardian
or common law spouse of the mother of the victim it must be alleged in the
Information that he is a relative by consanguinity or affinity [as the case may be]
within the third civil degree." (People v. Libo-on, GR No. 136737, May 23, 2001, per
Gonzaga-Reyes, J.; People v. Banihit, 339 SCRA 86, 96, August 25, 2000, per
Ynares-Santiago, J. both citing People v. Ferolino, 329 SCRA 719, 735, April 5,
2000, per Davide, CJ.) Moreover, even if the relationship by consanguinity or affinity is
alleged in the Information, it is still necessary to allege further that such relationship is
within the third civil degree. . ."45 (emphasis supplied)
Consequently, because of the defect in the information, the accused can only be held liable for
simple rape.
At any rate, the prosecution was not able to prove beyond reasonable doubt the kinship between
the accused and the victim. We ruled in People v. Capili,46 viz.:
"In People v. Liban (345 SCRA 453 [2000]), where the age of the victim was at issue,
the Court ruled that the testimony of the victim was insufficient to establish her

minority, but that, further thereto, the prosecution should present corroborative
evidence. In the instant case, the bare statement in passing of Melissa that appellant
"is an uncle," without any corroborating testimonial or documentary evidence to clearly
establish that relationship, would be insufficient to pass the test set in
Liban."47 (emphasis supplied)
In the case at bar, the prosecution failed to corroborate Cristys testimony that the accused is her
uncle, being the husband of her fathers sister. The accused himself admitted that his wife,
Felicitas, is the sister of Cristys father, Raul. Felicitas and her sister, Dolores, confirmed the
accuseds testimony. However, we cannot consider their testimonies corroborative of Cristys
testimony. Well-settled is the doctrine that the prosecution bears the burden of proving all the
elements of a crime, including the qualifying circumstances, thus the testimonies of the defense
witnesses cannot be used to benefit the prosecution, to the disadvantage of the accused.48
IN VIEW OF THE FOREGOING, we AFFIRM the decision of the trial court with the
MODIFICATION that the accused-appellant is found guilty of the crime of simple rape and
sentenced to suffer the penalty of imprisonment of reclusion perpetua with all its accessory
penalties and to pay the victim P50,000.00 as civil indemnity and P50,000.00 as moral
damages. Costs against the accused-appellant.
SO ORDERED.

CALLEJO, SR., J.:

This is an automatic review of the Decision1 of the Regional Trial Court of Manila, Branch 54,
finding accused-appellant Freddie Lizada guilty beyond reasonable doubt of four (4) counts of
qualified rape and meting on him the death penalty for each count.
I. The Charges
Accused-appellant2 was charged with four (4) counts of qualified rape under four separate
Informations. The accusatory portion of each of the four Informations reads:
"That sometime in August 1998 in the City of Manila, Philippines, the said accused,
with lewd designs, did then and there willfully, unlawfully and feloniously, by means of
force, violence and intimidation upon the person of one ANALIA ORILLOSA y AGOO,
by then and there embracing her, kissing and touching her private parts, thereafter
removing her skirt and panty, placing himself on top of her and trying to insert his
penis into her vagina and succeeded in having carnal knowledge with the said ANALIA
ORILLOSA y AGOO, against her will and consent.
Contrary to law.
xxx

xxx

xxx

That on or about November 5, 1998, in the City of Manila, Philippines, the said
accused, with lewd designs, did then and there willfully, unlawfully and feloniously, by
means of force, violence and intimidation upon the person of one ANALIA ORILLOSA
Y AGOO, by then and there embracing her, kissing and touching her private parts,
thereafter removing her skirt and panty, placing himself on top of her and trying to
insert his penis into her vagina and succeeded in having carnal knowledge with the
said ANALIA ORILLOSA Y AGOO, against her will and consent.
Contrary to law.
xxx

xxx

xxx

That on or about October 22, 1998, in the City of Manila, Philippines, the said
accused, with lewd designs, did then and there willfully, unlawfully and feloniously, by
means of force, violence and intimidation upon the person of one ANALIA ORILLOSA
Y AGOO, by then and there embracing her, kissing and touching her private parts,
thereafter removing her skirt and panty, placing himself on top of her and trying to
insert his penis into her vagina and succeeded in having carnal knowledge with the
said ANALIA ORILLOSA Y AGOO, against her will and consent.

G.R. Nos. 143468-71

January 24, 2003

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
FREDDIE LIZADA @ FREDIE LIZADA, accused-appellant.

Contrary to law.
xxx

xxx

xxx

That on or about September 15, 1998, in the City of Manila, Philippines, the said
accused, with lewd designs, did then and there willfully, unlawfully and feloniously, by

means of force, violence and intimidation upon the person of one ANALIA ORILLOSA
Y AGOO, by then and there embracing her, kissing and touching her private parts,
thereafter removing her skirt and panty, placing himself on top of her and trying to
insert his penis into her vagina and succeeded in having carnal knowledge with the
said ANALIA ORILLOSA Y AGOO, against her will and consent.
Contrary to law."3
The four (4) Informations were docketed as Criminal Cases Nos. 99-171390, 99-171391, 99171392 and 99-171393, respectively.
Accused-appellant was arraigned on April 15, 1999, assisted by counsel de parte and entered a
plea of not guilty to each of the charges.4 A joint trial then ensued.
II. Evidence of the Prosecution5
Ricardo Orillosa and his wife, Rose Orillosa, natives of San Isidro, Bohol, had three (3) children,
namely: Analia, who was born on December 18, 1985;6 Jepsy, who was 11 years old, and
Rossel, who was nine years old. However, the couple decided to part ways and live separately.
Rose left Bohol and settled in Manila with her young children. She worked as a waitress to make
both ends meet.
In 1994, Rose met accused-appellant. They decided to live together as husband and wife at No.
1252 Jose Abad Santos Street, Moriones, Tondo, Manila. In 1996, Rose resigned from her job
as a waitress. She secured a loan, bought a truck and used it for her business.
In the meantime, Rose secured a loan anew and used the proceeds thereof to put up a video
shop in her house. She sold Avon products from house to house to augment her income.
Whenever she was out of their house, Rossel and Analia took turns in tending the video shop
and attending to customers.
Sometime in 1996, Analia was in her room when accused-appellant entered. He laid on top of
her, removed her T-shirt and underwear. He then inserted his finger in her vagina. He removed
his finger and inserted his penis in her vagina. Momentarily, she felt a sticky substance coming
out from his penis. She also felt pain in her sex organ. Satiated, accused-appellant dismounted
but threatened to kill her if she divulged to anyone what he did to her. Accused-appellant then
returned to his room. The incident lasted less than one hour. Petrified by the threats on her life,
Analia kept to herself what happened to her.7
Sometime in August 1997, accused-appellant entered again the room of Analia, placed himself
on top of her and held her legs and arms. He then inserted his finger into her sex organ
("fininger niya ako"). Satiated, accused-appellant left the room. During the period from 1996 to
1998, accused-appellant sexually abused private complainant two times a week.
On November 5, 1998, at about 3:00 p.m., Analia was in the sala of their house studying her
assignments. Accused-appellant was also in the sala. Rossel tended the video shop while his
mother was away. Analia went into her room and lay down in bed. She did not lock the door of
the room because her brother might enter any time. She wanted to sleep but found it difficult to
do so. Accused-appellant went to his room next to the room of Analia. He, however, entered the
room of Analia. He was wearing a pair of short pants and was naked from waist up. Analia did

not mind accused-appellant entering her room because she knew that her brother, Rossel was
around. However, accused-appellant sat on the side of her bed, placed himself on top of her,
held her hands and legs and fondled her breasts. She struggled to extricate herself. Accusedappellant removed her panty and touched her sex organ. Accused-appellant inserted his finger
into her vagina, extricated it and then inserted his penis into her vagina. Accused-appellant
ejaculated. Analia felt pain in her sex organ. Momentarily, Rossel passed by the room of Analia
after drinking water from the refrigerator, and peeped through the door. He saw accusedappellant on top of Analia. Accused-appellant saw Rossel and dismounted. Accused-appellant
berated Rossel and ordered him to go to his room and sleep. Rossel did. Accused-appellant
then left the room. Analia likewise left the room, went out of the house and stayed outside for
one hour. Rose arrived home at 6:00 p.m. However, Analia did not divulge to her mother what
accused-appellant had just done to her.
On November 9, 1998, at about 3:00 p.m., Rose left the house. Accused-appellant was in the
sala of the house watching television. Analia tended the video shop. However, accusedappellant told Analia to go to the sala. She refused, as nobody would tend the video shop. This
infuriated accused-appellant who threatened to slap and kick her.
Analia ignored the invectives and threats of accused-appellant and stayed in the video shop.
When Rose returned, a heated argument ensued between accused-appellant and Analia. Rose
sided with her paramour and hit Analia. This prompted Analia to shout. "Ayoko na, ayoko na."
Shortly thereafter, Rose and Analia left the house on board the motorcycle driven by her mother
in going to Don Bosco Street, Moriones, Tondo, Manila, to retrieve some tapes which had not yet
been returned. When Rose inquired from her daughter what she meant by her statement, "ayoko
na, ayoko na," she told her mother that accused-appellant had been touching the sensitive parts
of her body and that he had been on top of her. Rose was shocked and incensed. The two
proceeded to Kagawad Danilo Santos to have accused-appellant placed under arrest. On
November 10, 1998, the two proceeded to the Western Police District where Analia gave her
Affidavit-Complaint to PO1 Carmelita Nocum in the presence of SPO2 Fe H. Avindante. She
related to the police investigator that accused-appellant had touched her breasts and arms in
August, 1998, September 15, 1998, October 22, 1998 and on November 5, 1998, at 3:00 p.m.
Analia then submitted herself to genitalia examination by Dr. Armie Umil, a medico-legal officer
of the NBI. The medico-legal officer interviewed Analia, told him that she was raped in May, 1997
at 3:00 p.m. and November 5, 1998 at 3:00 p.m.8
Dr. Umil prepared and signed a report on "Living Case No. MO-98-1265" which contained her
findings during her examination on Analia, thus:
"xxx

xxx

xxx

Fairly nourished, conscious, coherent, cooperative, ambulatory subject. Breasts,

developed, hemispherical, firm. , brown, 3.0 cms. in diameter. Nipples brown,
protruding, 0.7 cms. in diameter.
No extragenital physical injuries noted.
GENITAL EXAMINATION:
Pubic hair, fully grown, moderate. Labia majora and minora, coaptated. Fourchette,
tense. Vetibular mucosa, pinkish. Hymen, tall, thick, intact. Hymenal orifice measures,
1.5 cms. in diameter. Vaginal walls, tight. Rugosities, prominent.

CONCLUSIONS:
1). No evident sign of extragenital physical injuries noted on the body of the subject at
the time of examination.
2). Hymen, intact and its orifice small (1.5 cms. in diameter) as to preclude complete
penetration by an average-sized adult Filipino male organ in full erection without
producing any genital injury."9

"From all the evidence submitted by the prosecution, the Court concludes that the
accused is guilty beyond reasonable doubt of the crime charged against him in these
four (4) cases, convicts him thereof, and sentences him to DEATH PENALTY in each
and every case as provided for in the seventh paragraph, no. 1, Article 335 of the
Revised Penal Code.
SO ORDERED."11
V. Assigned Errors of the Trial Court

Subsequently, Analia told her mother that "mabuti na lang iyong panghihipo lang ang
sinabi ko." When Rose inquired from her daughter what she meant by her statement,
Analia revealed to her mother that accused-appellant had sexually abused her. On
December 15, 1998, Analia executed a "Dagdag na Salaysay ng Paghahabla" and
charged accused-appellant with rape.10
III. The Defenses and Evidence of Accused-Appellant
Accused-appellant testified in his defense. He declared that after a month of courtship, he and
Rose agreed in 1994 to live together as husband and wife. He was then a utility worker with the
Navotas Branch of the Philippine Banking Corporation. Rose, on the other hand, was a waitress
at the Golden Bird beer house at Rizal Avenue, Manila.
Accused-appellant denied having raped Analia. He claimed that he loved the children of Rose as
if they were his own children. He took care of them, as in fact he cooked and prepared their food
before they arrived home from school. At times, he ironed their school uniforms and bathed
them, except Analia who was already big. Analia was hard-headed because she disobeyed him
whenever he ordered her to do some errands. Because of Analia's misbehavior, accusedappellant and Rose oftentimes quarreled. Rose even demanded that accused-appellant leave
their house. Another irritant in his and Rose's lives were the frequent visits of the relatives of her
husband.
Sometime in 1997, accused-appellant was retrenched from his employment and received a
separation pay of P9,000.00 which he used to put up the VHS Rental and Karaoke from which
he earned a monthly income of P25,000.00. While living together, accused-appellant and Rose
acquired two colored television sets, two VHS Hi-fi recorders, one VHS player, one washing
machine, one scooter motor, two VHS rewinders, one sala set, one compact disc player and
many other properties.
Accused-appellant ventured that Rose coached her children Analia and Rossel to testify against
him and used them to fabricate charges against him because Rose wanted to manage their
business and take control of all the properties they acquired during their coverture. Also, Rose
was so exasperated because he had no job.
IV. The Verdict
On May 29, 2000, the trial court rendered judgment against accused-appellant finding him guilty
beyond reasonable doubt of four (4) counts of rape, defined and penalized in the seventh
paragraph, no. 1, Art. 335 of the Revised Penal Code, and meted on him the death penalty for
each count. The dispositive portion of the decision reads:

Accused-appellant assailed the decision of the court a quo and averred in his brief that:
"THE TRIAL COURT GRAVELY ERRED IN NOT MAKING A FINDING OF FACT IN
ITS DECISION AND SUCH FAILURE IS A REVERSIBLE ERROR."12
xxx

xxx

xxx

"THE TRIAL COURT GRAVELY ERRED IN CONVICTING ACCUSED-APPELLANT

OF FOUR (4) COUNTS OF RAPE DESPITE FAILURE OF THE PROSECUTION TO
PROVE HIS GUILT BEYOND REASONABLE DOUBT.13
VI. Findings of the Court
On the first assignment of error, accused-appellant contends that the decision of the trial court is
null and void as it failed to comply with the requirements of Section 14, Article VIII of the 1987
Constitution and Section 1, Rule 36 of the 1997 Rules of Civil Procedure, as amended. He avers
that the court a quo made no findings of facts in its decision. The trial court merely summarized
the testimonies of the witnesses of the prosecution and those of accused-appellant and his
witnesses, and forthwith set forth the decretal portion of said decision. The trial court even failed
to state in said decision the factual and legal basis for the imposition of the supreme penalty of
death on him. The Solicitor General, on the other hand, argues that there should be no
mechanical reliance on the constitutional provision. Trial courts may well-nigh synthesize and
simplify their decisions considering that courts are harassed by crowded dockets and time
constraints. Even if the trial court did not elucidate the grounds as the legal basis for the
penalties imposed, nevertheless the decision is valid. In any event, the Solicitor General
contends that despite the infirmity of the decision, there is no need to remand the case to the
trial court for compliance with the constitutional requirement as the Court may resolve the case
on its merits to avoid delay in the final disposition of the case and afford accused-appellant his
right to a speedy trial.
The contention of accused-appellant is well-taken. Article VIII, paragraph 14 of the 1987
Constitution provides that "no decision shall be rendered by any court without expressing therein
clearly and distinctly the facts and the law on which it is based." This requirement is reiterated
and implemented by Rule 120, Section 2 of the 1985 Rules on Criminal Procedure, as amended,
which reads:
"SEC. 2. Form and contents of judgment. The judgment must be written in the
official language, personally and directly prepared by the judge and signed by him and
shall contain clearly and distinctly a statement of the facts proved or admitted by the
accused and the law upon which the judgment is based.

If it is of conviction, the judgment shall state (a) the legal qualification of the offense
constituted by the acts committed by the accused, and the aggravating or mitigating
circumstances attending the commission thereof, if there are any; (b) the participation
of the accused in the commission of the offense, whether as principal, accomplice, or
accessory after the fact; (c) the penalty imposed upon the accused; and (d) the civil
liability or damages caused by the wrongful act to be recovered from the accused by
the offended party, if there is any, unless the enforcement of the civil liability by a
separate action has been reserved or waived."14
The purpose of the provision is to inform the parties and the person reading the decision on how
it was reached by the court after consideration of the evidence of the parties and the relevant
facts, of the opinion it has formed on the issues, and of the applicable laws. The parties must be
assured from a reading of the decision of the trial court that they were accorded their rights to be
heard by an impartial and responsible judge.15 More substantial reasons for the requirement are:
"For one thing, the losing party must be given an opportunity to analyze the decision
so that, if permitted, he may elevate what he may consider its errors for review by a
higher tribunal. For another, the decision if well-presented and reasoned, may
convince the losing party of its merits and persuade it to accept the verdict in good
grace instead of prolonging the litigation with a useless appeal. A third reason is that
decisions with a full exposition of the facts and the law on which they are based,
especially those coming from the Supreme Court, will constitute a valuable body of
case law that can serve as useful references and even as precedents in the resolution
of future controversies."16
The trial court is mandated to set out in its decision the facts which had been proved and its
conclusions culled therefrom, as well as its resolution on the issues and the factual and legal
basis for its resolution.17 Trial courts should not merely reproduce the respective testimonies of
witnesses of both parties and come out with its decretal conclusion.
In this case, the trial court failed to comply with the requirements under the Constitution and the
Rules on Criminal Procedure. It merely summarized the testimonies of the witnesses of the
prosecution and of accused-appellant on direct and cross examinations and merely made
referral to the documentary evidence of the parties then concluded that, on the basis of the
evidence of the prosecution, accused-appellant is guilty of four (4) counts of rape and sentenced
him to death, on each count.
The trial court even failed to specifically state the facts proven by the prosecution based on their
evidence, the issues raised by the parties and its resolution of the factual and legal issues, as
well as the legal and factual bases for convicting accused-appellant of each of the crimes
charged. The trial court rendered judgment against accused-appellant with the court declaration
in the decretal portion of its decision that it did so based on the evidence of the prosecution. The
trial court swallowed hook, line and sinker the evidence of the prosecution. It failed to explain in
its decision why it believed and gave probative weight to the evidence of the prosecution.
Reading the decision of the trial court, one is apt to conclude that the trial court ignored the
evidence of accused-appellant. The trial court did not even bother specifying the factual and
legal bases for its imposition of the supreme penalty of death on accused-appellant for each
count of rape. The trial court merely cited seventh paragraph, no. 1, Article 335 of the Revised
Penal Code. The decision of the trial court is a good example of what a decision, envisaged in
the Constitution and the Revised Rules of Criminal Procedure, should not be.

The Court would normally remand the case to the trial court because of the infirmity of the
decision of the trial court, for compliance with the constitutional provision. However, to avert
further delay in the disposition of the cases, the Court decided to resolve the cases on their
merits considering that all the records as well as the evidence adduced during the trial had been
elevated to the Court.18 The parties filed their respective briefs articulating their respective
stances on the factual and legal issues.
In reviewing rape cases, this Court is guided by the following principles: (1) to accuse a man of
rape is easy but to disprove it is difficult though the accused may be innocent; (2) considering
the nature of things, and only two persons are usually involved in the crime of rape, the
testimony of the complainant should be scrutinized with great caution; (3) the evidence for the
prosecution must stand or fall on its own merits and not be allowed to draw strength from the
weakness of the evidence of the defense.19 By the very nature of the crime of rape, conviction or
acquittal depends almost entirely on the credibility of the complainant's testimony because of the
fact that usually only the participants can testify as to its occurrence. However, if the accused
raises a sufficient doubt as to any material element of the crime, and the prosecution is unable to
overcome it with its evidence, the prosecution has failed to discharge its burden of proving the
guilt of the accused beyond cavil of doubt and hence, the accused is entitled to an acquittal.
Anent the second assignment of error, we will resolve the same for convenience, as follows:
Re: CRIMINAL CASES NOS. 99-171392 and 99-171393 (covering the crime of rape
committed on or about October 22, 1998 and on or about September 15, 1998)
Accused-appellant avers that the prosecution failed to adduce the requisite quantum of evidence
that he raped the private complainant precisely on September 15, 1998 and October 22, 1998.
Moreover, the medical findings of Dr. Armie Umil show that the hymen of the private complainant
was intact and its orifice so small as to preclude complete penetration by an average size adult
Filipino male organ in full erection without producing any genital injury. The physical evidence
belies private complainant's claim of having been deflowered by accused-appellant on four
different occasions. The Office of the Solicitor General, for its part, contends that the prosecution
through the private complainant proved the guilt of accused-appellant for the crime charged on
both counts.
The contention of accused-appellant does not persuade the Court. The private complainant
testified that since 1996, when she was only eleven years old, until 1998, for two times a week,
accused-appellant used to place himself on top of her and despite her tenacious resistance,
touched her arms, legs and sex organ and inserted his finger and penis into her vagina. In the
process, he ejaculated. Accused-appellant threatened to kill her if she divulged to anyone what
he did to her.20 Although private complainant did not testify that she was raped on September 15,
1998 and October 22, 1998, nevertheless accused-appellant may be convicted for two counts of
rape, in light of the testimony of private complainant.
It bears stressing that under the two Informations, the rape incidents are alleged to have been
committed "on or about September 15, 1998" and "on or about October 22, 1998." The words
"on or about" envisage a period, months or even two or four years before September 15, 1998 or
October 22, 1998. The prosecution may prove that the crime charged was committed on or
about September 15, 1998 and on or about October 22, 1998.
In People vs. Gianan,21 this Court affirmed the conviction of accused-appellant of five (5) counts
of rape, four of which were committed in December 1992 (two counts) and one each in March

and April, 1993 and in November, 1995 and one count of acts of lasciviousness committed in
December 1992, on a criminal complaint for multiple rape, viz:

"Fiscal Carisma
(continuing)

"That sometime in November 1995, and some occasions prior and/or subsequent
thereto, in the Municipality of Dasmarias, Province of Cavite, and within the
jurisdiction of this Honorable Court, the above-named accused, with lewd designs,
taking advantage of his superior strength over the person of his own twelve (12) year
old daughter, and by means of force, violence and intimidation, did, then and there,
willfully, unlawfully and feloniously, have repeated carnal knowledge of Myra M.
Gianan, against her will and consent, to her damage and prejudice."22
On the contention of accused-appellant in said case that his conviction for rape in December
1992 was so remote from the date (November 1995) alleged in the Information, so that the latter
could no longer be considered as being "as near to the actual date at which the offense was
committed" as provided under Section 11, Rule 110 of the Rules on Criminal Procedure, as
amended, this Court held:
"Accused-appellant nevertheless argues that his conviction for rape in December
1992 is so remote from the date (November 1995) alleged in the information, so that
the latter could no longer be considered as being "as near to the actual date at which
the offense was committed" as provided under Rule 110, 11.
This contention is also untenable. In People v. Garcia, this Court upheld a conviction
for ten counts of rape based on an information which alleged that the accused
committed multiple rape "from November 1990 up to July 21, 1994," a time difference
of almost four years which is longer than that involved in the case at bar. In any case,
as earlier stated, accused-appellant's failure to raise a timely objection based on this
ground constitutes a waiver of his right to object."23
Moreover, when the private complainant testified on how accused-appellant defiled her two
times a week from 1996 until 1998, accused-appellant raised nary a whimper of protest.
Accused-appellant even rigorously cross-examined the private complainant on her testimony on
direct examination. The presentation by the prosecution, without objection on the part of
accused-appellant, of evidence of rape committed two times a week from 1996 until 1998 (which
includes September 15, 1998 and October 22, 1998) to prove the charges lodged against him
constituted a waiver by accused-appellant of his right to object to any perceived infirmity in, and
in the amendment of, the aforesaid Informations to conform to the evidence adduced by the
prosecution.
The barefaced fact that private complainant remained a virgin up to 1998 does not preclude her
having been repeatedly sexually abused by accused-appellant. The private complainant being of
tender age, it is possible that the penetration of the male organ went only as deep as her labia.
Whether or not the hymen of private complainant was still intact has no substantial bearing on
accused-appellant's commission of the crime.24 Even, the slightest penetration of the labia by the
male organ or the mere entry of the penis into the aperture constitutes consummated rape. It is
sufficient that there be entrance of the male organ within the labia of the pudendum.25 InPeople
vs. Baculi, cited in People vs. Gabayron,26 we held that there could be a finding of rape even if
despite repeated intercourse over a period of four years, the complainant still retained an intact
hymen without injury. In these cases, the private complainant testified that the penis of accusedappellant gained entry into her vagina:

After your underwear was removed by the accused, what happened next?
Witness:
He laid himself on top of me, sir.
Q

What did he do while he was on top of you?

He inserted his finger (Finenger nya ako, ipinatong nya yong ano nya)

Q
Can you please describe more specifically what is this and I quote "Pinatong
nya yong ano nya" and where did he place it?
A

His organ, sir.

Where did he place his organ?

In my organ, sir. (sa ari ko po.)

At this very juncture madam witness, what did you feel?

A
I felt pain, sir, and I also felt that there was a sticky substance that was coming
out, sir."27 (Emphasis supplied)
We agree with accused-appellant that he is guilty only of two counts of simple rape, instead of
qualified rape. The evidence on record shows that accused-appellant is the common-law
husband of Rose, the mother of private complainant. The private complainant, as of October
1998, was still 13 years old, and under Article 335 as amended by Republic Act 7659, the
minority of the private complainant, concurring with the fact that accused-appellant is the
common-law husband of the victim's mother, is a special qualifying circumstance warranting the
imposition of the death penalty.28 However, said circumstance was not alleged in the
Informations as required by Section 8, Rule 110 of the Revised Rules on Criminal Procedure
which was given retroactive effect by this Court because it is favorable to the accused. 29 Hence,
even if the prosecution proved the special qualifying circumstance of minority of private
complainant and relationship, the accused-appellant being the common-law husband of her
mother, accused-appellant is guilty only of simple rape. Under the given law, the penalty for
simple rape is reclusion perpetua. Conformably with current jurisprudence, accused-appellant is
liable to private complainant for civil indemnity in the amount of P50,000.00 and moral damages
in the amount of P50,000.00 for each count of rape, or a total of P200,000.00.
Re: Criminal Cases Nos. 99-171390 and 99-171391 (covering the crime committed on
or about August 1998 and November 5, 1998)

Accused-appellant avers that (a) the Information in Criminal Case No. 99-171390 is defective
because the date of the offense "on or about August 1998" alleged therein is too indefinite, in
violation of Rule 110, Section 11 of the Revised Rules on Criminal Procedure which reads:
"Sec. 11. Date of commission of the offense. It is not necessary to state in the
complaint or information the precise date the offense was committed except when it is
a material ingredient of the offense. The offense may be alleged to have been
committed on a date as near as possible to the actual date of its commission. (11a)"30
Accused-appellant further asserts that the prosecution failed to prove that he raped private
complainant in August 1998. Hence, he argues, he should be acquitted of said charge. The
Office of the Solicitor General, for its part, argued that the date "on or about August 1998" is
sufficiently definite. After all, the date of the commission of the crime of rape is not an essential
element of the crime. The prosecution adduced conclusive proof that accused-appellant raped
private complainant on or about August 1998, as gleaned from her testimony during the trial.
The Court does not agree with accused-appellant. It bears stressing that the precise
date of the commission of the crime of rape is not an essential element of the crime.
Failure to specify the exact date when the rape was committed does not render the
Information defective. The reason for this is that the gravamen of the crime of rape is
carnal knowledge of the private complainant under any of the circumstances
enumerated under Article 335 of the Revised Penal Code, as amended. Significantly,
accused-appellant did not even bother to file a motion for a bill of particulars under
Rule 116, Section 9 of the Revised Rules on Criminal Procedure before he was
arraigned. Indeed, accused-appellant was duly arraigned under the Information and
entered a plea of not guilty to the charge without any plaint on the sufficiency of the
Information. Accused-appellant even adduced his evidence after the prosecution had
rested its case. It was only on appeal to this Court that accused-appellant questioned
for the first time the sufficiency of the Information filed against him. It is now too late in
the day for him to do so. Moreover, in People vs. Salalima,31 this Court held that:
"Failure to specify the exact dates or time when the rapes occurred does not ipso
facto make the information defective on its face. The reason is obvious. The precise
date or time when the victim was raped is not an element of the offense. The
gravamen of the crime is the fact of carnal knowledge under any of the circumstances
enumerated under Article 335 of the Revised Penal Code. As long as it is alleged that
the offense was committed at any time as near to the actual date when the offense
was committed an information is sufficient. In previous cases, we ruled that allegations
that rapes were committed "before and until October 15, 1994," "sometime in the year
1991 and the days thereafter," "sometime in November 1995 and some occasions
prior and/or subsequent thereto" and "on or about and sometime in the year 1988"
constitute sufficient compliance with Section 11, Rule 110 of the Revised Rules on
Criminal Procedure.
In this case, although the indictments did not state with particularity the dates when
the sexual assaults took place, we believe that the allegations therein that the acts
were committed "sometime during the month of March 1996 or thereabout,"
"sometime during the month of April 1996 or thereabout," "sometime during the month
of May 1996 or thereabout" substantially apprised appellant of the crimes he was
charged with since all the elements of rape were stated in the informations. As such,
appellant cannot complain that he was deprived of the right to be informed of the

nature of the cases filed against him. Accordingly, appellant's assertion that he was
deprived of the opportunity to prepare for his defense has no leg to stand on."
The prosecution proved through the testimony of private complainant that accused-appellant
raped her two times a week in 1998. As in Criminal Cases Nos. 99-171392 and 99-171393,
accused-appellant is guilty only of simple rape.
As to the crime of rape subject of Criminal Case No. 99-171391, accused-appellant avers that
he is not criminally liable of rape. We agree with accused-appellant. The collective testimony of
private complainant and her younger brother Rossel was that on November 5, 1998, accusedappellant who was wearing a pair of short pants but naked from waist up, entered the bedroom
of private complainant, went on top of her, held her hands, removed her panty, mashed her
breasts and touched her sex organ. However, accused-appellant saw Rossel peeping through
the door and dismounted. He berated Rossel for peeping and ordered him to go back to his
room and to sleep. Accused-appellant then left the room of the private complainant. The
testimony of private complainant on direct examination reads:
"Fiscal Carisma:
Q

In between 1996 and August 1997?

Yes, sir, sometimes two (2) times a week.

Q
In November of 1998, do you recall of any unusual experience that happened
to you again?
A

Yes, sir.

What was this unusual experience of yours?

He laid himself on top of me, sir.

You said "he" whom are you referring to?

Freedie Lizada Jakosalem, sir.

The same person you pointed to earlier?

Yes, sir.

Q
You said he placed himself on top of you in November, 1998, what did he do
while he was on top of you?
A

He's smashing my breast and he was also touching my arms and my legs, sir.

What else if any madam witness?

He was also touching my sex organ, sir.

What else, if any?

Atty. Estorco:
May we take note of the same objection your honor, the prosecution
Court:
Same ruling. Let the complainant continue considering that she is crying
and still young.

On cross-examination, the private complainant testified, thus:

"Atty. Balaba:
Q

Who was that somebody who entered the room?

My stepfather Freedie Lizada, sir.

He was fully dressed at that time, during the time, is that correct?

Yes, sir, he was dressed then, sir.

And he had his pants on, is that correct?

He was wearing a short pants, sir.

Was it a T-shirt that he had, at that time or a polo shirt?

He was not wearing any shirt then, sir, he was naked.

When you realized that somebody was entering the room were you not afraid?

No, sir, I was not afraid.

Witness:
None else, sir.
Fiscal Carisma:
With what part of his body did he touch your sex organ?
Atty. Estorco:
Your Honor, that is
Q
What happened when you realized that somebody entered the room, and the
one who entered was your stepfather, Freedie Lizada?

Court:
May answer.

A
I did not mind him entering the room because I know that my brother was
around but suddenly I felt that somebody was holding me.

Fiscal Carisma:
Q

He was holding you, where were you when he held you?

I was in the bed, sir, lying down.

You were lying down?

Yes, sir.

What part of the body did the accused Freedie Lizada touched you?

My two arms, my legs and my breast, sir.

I will re-propound the question, your honor.

You said that he touched your sex organ, will you tell the court with what
part of his body, did he touch your sex organ?
Witness:
With his hands, sir.
Q
What about after November 1998 was this the last incident, this unusual
thing that you experienced from the hands of the accused was this that last time, the
one you narrated in November 1998?
A

Yes, sir."32

Q
Do you mean to tell us that he was holding your two arms and at the same
time your legs, is that what you are trying to tell us?

He held me first in my arms and then my legs, sir.

He held you first by your arms, is that what you are trying to tell us?

Fiscal Carisma:

Atty. Balaba:
Can we take a recess your honor?
Court:

Already answered your honor, he held the arms and then the legs.
Court:

How long will it take you to finish your cross?

Atty. Balaba:

Already answered.
Atty. Balaba:
Q

We will confront the witness with so many things your honor.

Court:

Your honor, I am just trying to

Yes, that's why I am asking you how long will it take you to finish your
cross?

Court:
Atty. Balaba:
Proceed.
About another hour, sir.
Atty. Balaba:
Court:
Q

He held your arms with his two hands?

Only with one hand, sir.

Which hand were you touched?

I do not know which hand, sir.

Which arm of yours was held by Freedie Lizada?

So we will be finished by 11:15, proceed.

Atty. Balaba:
You cannot also remember which leg was held by Freedie Lizada?

I cannot recall, sir.

When this happened, did you not shout for help?

I could not recall, sir.

Which side of your body was Freedie Lizada at that time?

I cannot recall, sir.

What was the position of Freedie Lizada when he held your arms?

He was sitting on our bed, sir.

Which side of your bed was Freedie Lizada sitting on?

I do not know, sir. I cannot recall.

A
I did not ask for help, I was motioning to resist him, so that he would go out, sir.
I was struggling to free myself from him, sir.
Q

And you were not able to extricate yourself from him?

I was not able to extricate myself, sir.

Q
You were struggling with one arm of Lizada holding your arm, and the other
hand was holding your leg, is that what you are trying to tell us?
A

No, sir, it's not like that.

Q
Could you tell us, what happened, you did not shout for help and you were
trying to extricate yourself, what happened?

Q
Now, on that date, time and place you said you were outside your house, did
you stay the whole afternoon outside your house?

He suddenly went out of the room, sir.

No, sir.

Now, he went

Where did you go next?

Inside, sir.

For what purpose did you get inside your house?

Because I was thirsty, sir.

So you went to the fridge to get some water?

Yes, sir.

And what happened as you went inside your house to get some water?

Court:
You did not shout during that time?
A

No, your honor."33

Rossel, the nine-year old brother of the private complainant corroborated in part his sister's
testimony. He testified on direct examination, thus:
"Fiscal Carisma: (continuing)
Q
Now, on November 2, 1998 do you recall where you were at about 3:00
o'clock?
A

I was outside our house, sir.

Q
Where was your house again, Mr. witness, at that time? Where was your
house at that date, time and place? At that date and time?
A

A
I saw my stepfather removing the panty of my sister and he touched her and
then he laid on top of her, sir.

1252 Jose Abad Santos, Tondo, Manila, sir.

Court:
Q

The same address?

A.

Yes, sir.

Do you see your stepfather inside the courtroom now?

Yes, sir.

Will you point to him?

He is the one, sir.

Court Interpreter:
Witness pointing to a male person who when asked answers to the name
Freedie Lizada.

Fiscal Carisma:
Fiscal Carisma:
Q
On that date, time and place, do your recall where your sister Anna Lea
Orillosa was?
A

Yes, sir.

Where was she?

She was sleeping, sir.

Q
This thing that your father was that your stepfather did to your elder sister,
did you see this before or after you went to the fridge to get some water?
A

I already got water then, sir.

Q
What did you do as you saw this thing being done by your stepfather to your
elder sister?
A

I was just looking at them when he saw me, sir.

Who, you saw who? You are referring to the accused Freedie Lizada?

Yes, sir.

So, what did you do as you were seen by your stepfather?

A
He scolded me, he shouted at me, he told me something and after that he went
to the other room and slept, sir."34
Rossel testified on cross-examination, thus:
"Q

Q
And all this time you saw the accused doing this, from the refrigerator where
you were taking a glass of water?
A

Yes, sir.

Did you not say something to the accused?

No, sir, I was just looking.

Q
So your sister was lying down when the accused removed her panty, is that
what you are trying to tell us?

So you got thirsty, is that correct, and went inside the house?
A

Yes, sir.

Yes, sir.

And you took a glass of water from the refrigerator?

Yes, sir.

Q
And it was at this time that you saw the accused Freedie Lizada touching your
sister?
A

Yes, sir.

Where was this refrigerator located?

In front of the room where my sister sleeps, sir.

So the door of your sister's room was open?

Yes, sir.

Q
And okay, you said your sister was sleeping. What was the position of your
sister when you said the accused removed her panty?
A

She was lying straight, but she was resisting, sir.

Were you noticed by your sister at that time?

No, sir.

And your sister did not call for help at that time?

No, sir.

Q
And where was the and the accused saw you when he was removing the
panty of your sister?
A
Not yet, sir, but after a while he looked at the refrigerator because he might be
thirsty.
Q
So you said the accused was touching your sister. What part of her body
was touched by the accused?
A

Here, sir.

Court Interpreter:
Witness pointing at the lower portion of the body.
Atty. Balaba:
Q

You saw with what hand was the accused touching your sister?

Yes, sir.

What hand was he touching your sister?

This hand, sir.

Court Interpreter:
Witness raising his right hand.
Atty. Balaba:

Q
And which part of your sister's body was the accused touching with his right
hand? Your sister's body was the accused touching with his right hand?

Atty. Balaba:

Her right leg, sir.

Q
Rather the right thigh of your sister and with his left hand removing the panty,
is that what you are telling to tell us?

How about his left hand, what was the accused doing with his left hand?

Removing her panty, sir.

Q
And your sister all the time was trying to was struggling to get free, is that
not correct?

Removing her?

Yes, sir.

Yes, sir, she was resisting. (witness demonstrating)

She was struggling was the accused able to remove the panty?

Q
Which hand of your sister was being removed with the left hand of the
accused?

Yes, sir.

Court:

And all the time you were there looking with the glass of water in your hand?

Yes, sir."35

Panty, sir.

Which?
Atty. Balaba:
Which hand, which hand?
Fiscal Carisma:
The question is vague, your honor.

In light of the evidence of the prosecution, there was no introduction of the penis of accusedappellant into the aperture or within the pudendum of the vagina of private complainant. Hence,
accused-appellant is not criminally liable for consummated rape.36
The issue that now comes to fore is whether or not accused-appellant is guilty of consummated
acts of lasciviousness defined in Article 336 of the Revised Penal Code or attempted rape under
Article 335 of the said Code, as amended in relation to the last paragraph of Article 6 of the
Revised Penal Code. In light of the evidence on record, we believe that accused-appellant is
guilty of attempted rape and not of acts of lasciviousness.

Atty. Balaba:
Article 336 of the Revised Penal Code reads:
Because he said that removing the hand
Fiscal Carisma:
He said removing the panty.
Atty. Balaba:
Is that panty? I'm sorry.
Q

So, the accused was touching with his right hand the left thigh of your sister

Fiscal Carisma:
The right thigh.

"Art. 336. Acts of Lasciviousness. Any person who shall commit any act of
lasciviousness upon other persons of either sex, under any of the circumstances
mentioned in the preceding article, shall be punished by prision correccional."37
For an accused to be convicted of acts of lasciviousness, the prosecution is burdened to prove
the confluence of the following essential elements:
"1. That the offender commits any act of lasciviousness or lewdness.
2. That it is done under any of the following circumstances:
a. By using force or intimidation; or
b. When the offended party is deprived of reason or otherwise unconscious;
or

c. When the offended party is under 12 years of age."38

"Lewd" is defined as obscene, lustful, indecent, lecherous. It signifies that form of immorality
which has relation to moral impurity; or that which is carried on a wanton manner.39
The last paragraph of Article 6 of the Revised Penal Code reads:
"There is an attempt when the offender commences the commission of a felony
directly by overt acts, and does not perform all the acts of execution which should
produce the felony by reason of some cause or accident other than his own
spontaneous desistance."
The essential elements of an attempted felony are as follows:
"1. The offender commences the commission of the felony directly by overt acts;
2. He does not perform all the acts of execution which should produce the felony;
3. The offender's act be not stopped by his own spontaneous desistance;
4. The non-performance of all acts of execution was due to cause or accident other
than his spontaneous desistance."40
The first requisite of an attempted felony consists of two elements, namely:
"(1) That there be external acts;
(2) Such external acts have direct connection with the crime intended to be
committed."41
An overt or external act is defined as some physical activity or deed, indicating the intention to
commit a particular crime, more than a mere planning or preparation, which if carried out to its
complete termination following its natural course, without being frustrated by external obstacles
nor by the spontaneous desistance of the perpetrator, will logically and necessarily ripen into a
concrete offense.42 The raison d'etre for the law requiring a direct overt act is that, in a majority
of cases, the conduct of the accused consisting merely of acts of preparation has never ceased
to be equivocal; and this is necessarily so, irrespective of his declared intent. It is that quality of
being equivocal that must be lacking before the act becomes one which may be said to be a
commencement of the commission of the crime, or an overt act or before any fragment of the
crime itself has been committed, and this is so for the reason that so long as the equivocal
quality remains, no one can say with certainty what the intent of the accused is. 43 It is necessary
that the overt act should have been the ultimate step towards the consummation of the design. It
is sufficient if it was the "first or some subsequent step in a direct movement towards the
commission of the offense after the preparations are made."44 The act done need not constitute
the last proximate one for completion. It is necessary, however, that the attempt must have a
causal relation to the intended crime.45 In the words of Viada, the overt acts must have an
immediate and necessary relation to the offense.46

Acts constitutive of an attempt to commit a felony should be distinguished from preparatory acts
which consist of devising means or measures necessary for accomplishment of a desired object
or end.47 One perpetrating preparatory acts is not guilty of an attempt to commit a felony.
However, if the preparatory acts constitute a consummated felony under the law, the malefactor
is guilty of such consummated offense.48 The Supreme Court of Spain, in its decision of March
21, 1892, declared that for overt acts to constitute an attempted offense, it is necessary that their
objective be known and established or such that acts be of such nature that they themselves
should obviously disclose the criminal objective necessarily intended, said objective and finality
to serve as ground for designation of the offense.49
There is persuasive authority that in offenses not consummated as the material damage is
wanting, the nature of the action intended (accion fin) cannot exactly be ascertained but the
same must be inferred from the nature of the acts executed (accion medio).50 Hence, it is
necessary that the acts of the accused must be such that, by their nature, by the facts to which
they are related, by circumstances of the persons performing the same, and b the things
connected therewith, that they are aimed at the consummation of the offense. This Court
emphasized inPeople vs. Lamahang51 that:
"The relation existing between the facts submitted for appreciation and the offense
which said facts are supposed to produce must be direct; the intention must be
ascertained from the facts and therefore it is necessary, in order to avoid regrettable
instances of injustice, that the mind be able to cause a particular injury."52
If the malefactor does not perform all the acts of execution by reason of his spontaneous
desistance, he is not guilty of an attempted felony.53 The law does not punish him for his attempt
to commit a felony.54 The rationale of the law, as explained by Viada:
"La Ley, en efecto, no hiere sino a pesar suyo; prefiere impedir el crimen que castigarlo. Si el
autor de la tentativa, despues de haber comenzado a ejecutar el delito por actos exteriores, se
detiene, por un sentimiento libre y espontaneo, en el borde del abismo, salvo esta. Es un
llamamiento al remordimiento, a la conciencia, una gracia un perdon que concede la Ley al
arrepentimiento voluntario."55
As aptly elaborated on by Wharton:
"First, the character of an attempt is lost when its execution is voluntarily abandoned.
There is no conceivable overt act to which the abandoned purpose could be attached.
Secondly, the policy of the law requires that the offender, so long as he is capable of
arresting an evil plan, should be encouraged to do so, by saving him harmless in case
of such retreat before it is possible for any evil consequences to ensue. Neither
society, nor any private person, has been injured by his act. There is no damage,
therefore, to redress. To punish him after retreat and abandonment would be to
destroy the motive for retreat and abandonment."56
It must be borne in mind, however, that the spontaneous desistance of a malefactor exempts
him from criminal liability for the intended crime but it does not exempt him from the crime
committed by him before his desistance.57
In light of the facts established by the prosecution, we believe that accused-appellant intended
to have carnal knowledge of private complainant. The overt acts of accused-appellant proven by
the prosecution were not mere preparatory acts. By the series of his overt acts, accused-

appellant had commenced the execution of rape which, if not for his spontaneous desistance,
will ripen into the crime of rape. Although accused-appellant desisted from performing all the
acts of execution however his desistance was not spontaneous as he was impelled to do so only
because of the sudden and unexpected arrival of Rossel. Hence, accused-appellant is guilty
only of attempted rape.58 In a case of similar factual backdrop as this case, we held:
"Applying the foregoing jurisprudence and taking into account Article 6 of the Revised
Penal Code, the appellant can only be convicted of attempted rape. He commenced
the commission of rape by removing his clothes, undressing and kissing his victim and
lying on top of her. However, he failed to perform all the acts of execution which
should produce the crime of rape by reason of a cause other than his own
spontaneous desistance, i.e., by the timely arrival of the victim's brother. Thus, his
penis merely touched Mary Joy's private organ. Accordingly, as the crime committed
by the appellant is attempted rape, the penalty to be imposed on him should be an
indeterminate prison term of six (6) years of prision correccional as minimum to twelve
(12) years of prision mayor as maximum."
The penalty for attempted rape is prision mayor which is two degrees lower than reclusion
perpetua.59 Accused-appellant should be meted an indeterminate penalty the minimum of which
should be taken from prision correccional which has a range of from six months and one day to
six years and the maximum of which shall be taken from the medium period of prision
mayor which has a range of from eight years and one day to ten years, without any modifying
circumstance. Accused-appellant is also liable to private complainant for moral damages in the
amount of P25,000.00.
IN LIGHT OF ALL THE FOREGOING, the Decision of the Regional Trial Court of Manila,
Branch 54, is SET ASIDE. Another judgment is hereby rendered as follows:
1. In Criminal Case No. 99-171390, accused-appellant is hereby found guilty beyond reasonable
doubt of simple rape under Article 335 of the Revised Penal Code as amended and is hereby
meted the penalty of reclusion perpetua. Accused-appellant is also hereby ordered to pay
private complainant Analia Orillosa the amounts of P50,000.00 by way of civil indemnity and
P50,000.00 by way of moral damages;
2. In Criminal Case No. 99-171391, accused-appellant is hereby found guilty of attempted rape
under Article 335 of the Revised Penal Code as amended in relation to Article 6 of the said Code
and is hereby meted an indeterminate penalty of from six years of prision correccional in its
maximum period, as minimum to ten years ofprision mayor in its medium period, as maximum.
Accused-appellant is hereby ordered to pay private complainant Analia Orillosa the amount of
P25,000.00 by way of moral damages; and,
3. In Criminal Cases Nos. 99-171392 and 99-171393, accused-appellant is hereby found guilty
beyond reasonable doubt of two counts of simple rape, defined in Article 335 of the Revised
Penal Code as amended and is hereby meted the penalty of reclusion perpetua for each count.
Accused-appellant is hereby ordered to pay to private complainant Analia Orillosa the amount of
P50,000.00 by way of civil indemnity and the amount of P50,000.00 by way of moral damages
for each count, or a total amount of P200,000.00.
SO ORDERED.

G.R. No. 124342 December 8, 1999

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
EDWIN LADRILLO, accused-appellant.

BELLOSILLO, J.:
It is basic that the prosecution evidence must stand or fall on its own weight and cannot draw
strength from the weakness of the defense. 1 The prosecution must demonstrate the culpability
of the accused beyond reasonable doubt for accusation is not synonymous with guilt. Only when
the requisite quantum of proof necessary for conviction exists that the liberty, or even the life, of
an accused may be declared forfeit. Correlatively, the judge must examine with extreme caution
the evidence for the state to determine its sufficiency. If the evidence fails to live up to the moral
conviction of guilt the verdict must be one of acquittal, for in favor of the accused stands the
constitutional presumption of innocence; so it must be in this prosecution for rape.
Jane Vasquez, the eight (8) year old complaining witness, could not state the month and year
she was supposedly abused by her cousin Edwin Ladrillo. She could narrate however that one
afternoon she went to the house of accused-appellant in Abanico, Puerto Princesa City, which
was only five (5) meters away from where she lived. There he asked her to pick lice off his head;
she complied. But later, he told her to lie down in bed as he stripped himself naked. He removed
her panty and placed himself on top of her. Then he inserted his penis into her vagina. He
covered her mouth with his hand to prevent her from shouting as he started gyrating his
buttocks. He succeeded in raping her four (4) times on the same day as every time his penis
softened up after each intercourse he would make it hard again and insert it back into her
vagina. After successively satisfying his lust accused-appellant Edwin Ladrillo would threaten to
"send her to the police" if she would report the incident to anyone. 2
Sometime in 1994 Salvacion Ladrillo Vasquez, mother of Jane, noticed that Jane had difficulty
urinating and kept pressing her abdomen and holding her private part. As she writhed in
discomfort she approached her mother and said, "Ma, hindi ka maniwala sa akin na 'yung uten
ni Kuya Edwin ipinasok sa kiki ko" (Ma, you won't believe that Kuya Edwin inserted his penis into
my
vagina). 3 Perturbed by her daughter's revelation, Salvacion immediately brought her to their
church, the Iglesia ni Kristo, where she was advised to report to the National Bureau of
Investigation (NBI). At the NBI Salvacion was referred to the Puerto Princesa Provincial Hospital
so that Jane could be physically examined.

The defense is anchored on alibi and denial. Accused-appellant claims that in 1992, the year he
allegedly raped Jane as stated in the Information, he was still residing in Liberty, Puerto Princesa
City, and did not even know Jane or her mother at that time. That it was only in 1993, according
to him, that he moved to Abanico, Puerto Princesa City. To corroborate his testimony, the
defense presented as witnesses, Wilfredo Rojas and Teodoro Aguilar, both of whom were
neighbors of accused-appellant in Liberty, Puerto Princesa City. They testified that in 1992
accused-appellant was still their neighbor in Liberty and it was only in 1993 when accusedappellant and his family moved to Abanico. 7
Edito Ladrillo, accused-appellant's father, testified that his family lived in Abanico for the first time
only in 1993; that when he and his sister Salvacion, mother of Jane, had a quarrel, he forbade
his son Edwin from attending church services with Salvacion at the Iglesia ni Kristo, which
caused his sister to be all the more angry with him; and, the instant criminal case was a means
employed by his sister to exact revenge on him for their past disagreements. 8
The trial court found accused-appellant Edwin Ladrillo guilty as charged, sentenced him
to reclusion perpetua, and ordered him to indemnify Jane Vasquez the amount of P100,000.00,
and to pay the costs. 9 Thus, the court rationalized
The crux of accused's defense is that he was not in the place of the alleged
rape in Abanico, Puerto Princesa City when this allegedly happened. He
denied committing the crime of rape against the young girl, Jane Vasquez.
After having carefully examined and calibrated the evidence on record, the
Court is convinced more than ever that the accused Edwin Ladrillo indeed
repeatedly raped or sexually abused Jane Vasquez, a girl who was then
only five (5) years old. This Court has no reason to doubt the veracity of the
testimony of Jane Vasquez given the straightforward clarity and simplicity
with which it was made. It is highly improbable that a young, 8-year old girl
would falsely testify that her own cousin, the accused herein, raped her. She
told her mother: "Ma, hindi ka maniwala sa akin na ang utin ni Kuya Edwin
ay ipinasok sa kiki ko." Jane also described that after the intercourse and as
the penis of the accused softened, the latter would make it hard again and
then inserted it again into her vagina and this was made four (4) times.
Jane's testimony has all the characteristics of truth and is entitled to great
weight and credence. The Court cannot believe that the very young victim is
capable of fabricating her story of defloration.

Dr. Danny O. Aquino, the examining physician, reported in his medico-legal certificate that Jane
had a "non-intact hymen." 4 He later testified that a "non-intact hymen" could mean either of two
(2) things: it could be congenital, i.e., the victim was born without a fully developed hymen, 5 or it
could be caused by a trauma, as when a male organ penetrated the private organ of the victim. 6

Accused-appellant contends in this appeal that the trial court erred in: (a) not giving credence to
his defense that at the supposed time of the commission of the offense he was not yet residing
in Abanico, Puerto Princesa City, and did not know the complainant nor her family; (b) finding
him guilty of rape considering that the prosecution failed to prove his guilt beyond reasonable
doubt; (c) not finding that the prosecution failed to sufficiently establish with particularity the date
of commission of the offense; (d) giving great weight and credence to the testimony of the
complainant; and, (e) failing to consider the mitigating circumstance of minority in imposing the
penalty ofreclusion perpetua, assuming for the sake of argument that indeed the crime of rape
was committed. 10

On 3 February 1995 Jane Vasquez with the assistance of her mother Salvacion Ladrillo Vasquez
filed a criminal complaint against accused-appellant Edwin Ladrillo.

A careful study of the records sustains accused-appellant's plea that the verdict should have
been one of acquittal.
Preliminarily, the crime was alleged in the Information to have been committed "on or about the
year 1992" thus

That on or about the year 1992 at Abanico Road, Brgy. San Pedro, Puerto
Princesa City . . . . the said accused, with the use of force and intimidation
did then and there willfully, unlawfully, and feloniously have carnal
knowledge with the undersigned five (5) years of age, minor, against her will
and without her consent.
The peculiar designation of time in the Information clearly violates Sec. 11, Rule 110, of the
Rules Court which requires that the time of the commission of the offense must be alleged as
near to the actual date as the information or complaint will permit. More importantly, it runs afoul
of the constitutionally protected right of the accused to be informed of the nature and cause of
the accusation against him. 11 The Information is not sufficiently explicit and certain as to time to
inform accused-appellant of the date on which the criminal act is alleged to have been
committed.
The phrase "on or about the year 1992" encompasses not only the twelve (12) months of 1992
but includes the years prior and subsequent to 1992, e.g., 1991 and 1993, for which accusedappellant has to virtually account for his whereabouts. Hence, the failure of the prosecution to
allege with particularity the date of the commission of the offense and, worse, its failure to prove
during the trial the date of the commission of the offense as alleged in the Information, deprived
accused-appellant of his right to intelligently prepare for his defense and convincingly refute the
charges against him. At most, accused-appellant could only establish his place of residence in
the year indicated in the Information and not for the particular time he supposedly committed the
rape.
In United States v. Dichao, 12 decided by this Court as early as 1914, which may be applied by
analogy in the instant case, the Information alleged that the rape was committed "on or about
and during the interval between October 1910 and August 1912." This Court sustained the
dismissal of the complaint on a demurrer filed by the accused, holding that
In the case before us the statement of the time when the crime is alleged to
have been committed is so indefinite and uncertain that it does not give the
accused the information required by law. To allege in an information that the
accused committed rape on a certain girl between October 1910 and August
1912, is too indefinite to give the accused an opportunity to prepare for his
defense, and that indefiniteness is not cured by setting out the date when a
child was born as a result of such crime. Section 7 of the Code of Criminal
Procedure does not warrant such pleading. Its purpose is to permit the
allegation of a date of the commission of the crime as near to the actual
date as the information of the prosecuting officer will permit, and when that
has been done any date may be proved which does not surprise and
substantially prejudice the defense. It does not authorize the total omission
of a date or such an indefinite allegation with reference thereto as amounts
to the same thing.
Moreover, there are discernible defects in the complaining witness' testimony that militates
heavily against its being accorded the full credit it was given by the trial court. Considered
independently, the defects might not suffice to overturn the trial court's judgment of conviction,
but assessed and weighed in its totality, and in relation to the testimonies of other witnesses, as
logic and fairness dictate, they exert a powerful compulsion towards reversal of the assailed
judgment.

First, complainant had absolutely no recollection of the precise date she was sexually assaulted
by accused-appellant. In her testimony regarding the time of the commission of the offense she
declared
Q: This sexual assault that you described when your
Kuya Edwin placed himself on top of you and had
inserted his penis on (sic) your private part, when if you
could remember, was (sic) this happened, that (sic)
month?
A: I forgot, your Honor.
Q: Even the year you cannot remember?
A: I cannot recall.
Q: But is there any incident that you can recall that may
draw to a conclusion that this happened in 1992 or
thereafter?
A: None, your Honor.
Q: About the transfer of Edwin from Abanico to Wescom
Road?
A: I don't know, your Honor (emphasis supplied). 13
In People v. Clemente Ulpindo 14 we rejected the complaining witness' testimony as inherently
improbable for her failure to testify on the date of the supposed rape which according to her she
could not remember, and acquitted the accused. We held in part
While it may be conceded that a rape victim cannot be expected to keep an
accurate account of her traumatic experience, and while Regina's answer
that accused-appellant "went on top of her," and that she continuously
shouted and cried for five (5) minutes may have really meant that accusedappellant had carnal knowledge of her for five (5) minutes despite her
shouts and cries, what renders Regina's story inherently improbable is that
she could not remember the month or year when the alleged rape occurred,
and yet, she readily recalled the incident when she was whipped by
accused-appellant with a belt that hit her vagina after she was caught
stealing mangoes.
Certainly, time is not an essential ingredient or element of the crime of rape. However, it
assumes importance in the instant case since it creates serious doubt on the commission of the
rape or the sufficiency of the evidence for purposes of conviction. The Information states that the
crime was committed "on or about the year 1992," and complainant testified during the trial that
she was sexually abused by accused-appellant in the latter's house in Abanico, Puerto Princesa
City. 15 It appears however from the records that in 1992 accused-appellant was still residing in
Liberty, Puerto Princesa City, a town different from Abanico, Puerto Princesa City, and had never
been to Abanico at any time in 1992 nor was he familiar with the complainant and her family. He

only moved to Abanico, Puerto Princesa City, in 1993. 16 It was therefore impossible for accusedappellant to have committed the crime of rape in 1992 at his house in Abanico, Puerto Princesa
City, on the basis of the prosecution evidence, as he was not yet residing in Abanico at that time
and neither did his family have a home there. The materiality of the date cannot therefore be
cursorily ignored since the accuracy and truthfulness of complainant's narration of events
leading to the rape practically hinge on the date of the commission of the crime.
The ruling of the trial court to the effect that it was not physically impossible to be in Abanico
from Liberty when the crime charged against him was committed, is manifestly incongruous as it
is inapplicable. The trial court took judicial notice of the fact that Liberty and Abanico were not far
from each other, both being within the city limits of Puerto Princesa, and could be negotiated by
tricycle in less than thirty (30) minutes. 17 But whether or not it was physically impossible for
accused-appellant to travel all the way to Abanico from Liberty to commit the crime is irrelevant
under the circumstances as narrated by complainant. Truly, it strains the imagination how the
crime could have been perpetrated in 1992 at the Ladrillo residence in Abanico when, to repeat,
accused-appellant did not move to that place and take up residence there until 1993.
To complicate matters, we are even at a loss as to how the prosecution came up with 1992 as
the year of the commission of the offense. It was never adequately explained nor the factual
basis thereof established. The prosecutor himself admitted in court that he could not provide the
specific date for the commission of the crime
COURT: Wait a minute. (To witness) How many times
did your Kuya Edwin placed (sic) himself on top of you
and inserted (sic) his penis to (sic) your private organ?
A: Four (4) times, your Honor.
COURT: You demonstrate that with your fingers.
A: Like this, your Honor (witness raised her four (4)
fingers).
COURT: Fiscal, did you charge the accused four (4)
times?
PROS. FERNANDEZ: No, your Honor because we
cannot provide the dates (emphasis supplied). 18
Indeed, the failure of the prosecution to prove its allegation in the Information that accusedappellant raped complainant in 1992 manifestly shows that the date of the commission of the
offense as alleged was based merely on speculation and conjecture, and a conviction anchored
mainly thereon cannot satisfy the quantum of evidence required for a pronouncement of guilt,
that is, proof beyond reasonable doubt that the crime was committed on the date and place
indicated in the Information.
Second, neither did the testimony of Dr. Danny O. Aquino, the medico-legal officer, help
complainant's cause in any way. In his medico-legal certificate, Dr. Aquino concluded on
examination that complaining witness' hymen was not intact. When asked by the trial court what
he meant by "non-intact hymen," Dr. Aquino explained that it could be congenital, i.e., natural for

a child to be born with a "non-intact hymen." 19 However, he said, he could not distinguish
whether complainant's "non-intact hymen" was congenital or the result of a trauma. 20 When
asked further by the public prosecutor whether he noticed any healed wound or laceration in the
hymen, Dr. Aquino categorically answered: "I was not able to recognize (healed wound), sir," and
"I was not able to appreciate healed laceration, sir." 21 The answers of Dr. Aquino to subsequent
questions propounded by the prosecutor were very uncertain and inconclusive. To questions
like, "Is she a virgin or not?" and "So you are now saying that Jane Vasquez was actually
raped?" the answers of Dr. Aquino were, "I cannot tell for sure, your Honor." "That is a big
probability," and, "Very likely."
It is clear from the foregoing that the prosecution likewise failed to establish the medical basis for
the alleged rape. The failure of Dr. Aquino to make an unequivocal finding that complainant was
raped and that no healed wound or laceration was found on her hymen seriously affects the
veracity of the allegations of the prosecution.
Third, from her testimony, complainant would have this Court believe that while she was being
raped accused-appellant was holding her hand, covering her mouth and gripping his penis all at
the same time. Complainant's narration is obviously untruthful. It defies the ordinary experience
of man. The rule is elementary that evidence to be believed must not only proceed from the
mouth of a credible witness but must be credible in itself.
And fourth, complainant reported the alleged rape to her mother only in 1994 or two (2) years
after its occurrence. It hardly conforms to human experience that a child like complainant could
actually keep to herself such a traumatic experience for a very long time. Perhaps it would have
been different if she were a little older and already capable of exercising discretion, for then,
concealment of the rape committed against her would have been more readily explained by the
fact, as in this case, that she was probably trying to avoid the embarrassment and disrepute to
herself and her family. Children, on the other hand, are naturally more spontaneous and candid,
and usually lack the same discretion and sensibility of older victims of the same offense. Thus,
the fact that complainant, who was only five (5) years old when the supposed rape happened,
concealed her defilement to her mother for two (2) years seriously impairs her credibility and the
authenticity of her story.
We are not unmindful of the fact that a child of tender years, like complaining witness herein,
could be so timid and ignorant that she could not narrate her ordeal accurately. But the mind
cannot rest easy if this case is resolved against accused-appellant on the basis of the evidence
for the prosecution which, as already discussed, is characterized by glaring inconsistencies,
missing links and loose ends that refuse to tie up. The rule that this Court should refrain from
disturbing the conclusions of the trial court on the credibility of witnesses, does not apply where,
as in the instant case, the trial court overlooked certain facts of substance or value which if
considered would affect the outcome of the case; or where the disputed decision is based on
misapprehension of facts.
Denial and alibi may be weak but courts should not at once look at them with disfavor. There are
situations where an accused may really have no other defenses but denial and alibi which, if
established to be the truth, may tilt the scales of justice in his favor, especially when the
prosecution evidence itself is weak.Let it be made clear, however, that this opinion does not
necessarily signify acceptance of accused-appellant's version of the incident. If complainant was
indeed sexually abused, this view should not be considered a condonation of what was done, as
it was indeed reprehensible. This only indicates that reasonable doubt has been created as to
accused-appellant's guilt. Consequently, under the prevailing judicial norm, accused-appellant is

entitled to acquittal. To reiterate, there is in his favor the constitutional presumption of innocence,
which has not been sufficiently dented.
Rape is a very emotional word, and the natural human reactions to it are categorical: sympathy
for the victim and admiration for her in publicly seeking retribution for her outrageous misfortune,
and condemnation of the rapist. However, being interpreters of the law and dispensers of justice,
judges must look at a rape charge without those proclivities and deal with it with extreme caution
and circumspection. Judges must free themselves of the natural tendency to be overprotective
of every woman decrying her having been sexually abused and demanding punishment for the
abuser. While they ought to be cognizant of the anguish and humiliation the rape victim goes
through as she demands justice, judges should equally bear in mind that their responsibility is to
render justice based on the law. 22
WHEREFORE, the assailed decision of RTC-Br. 47, Palawan and Puerto Princesa City, is
REVERSED. Accused-appellant EDWIN LADRILLO is ACQUITTED of rape based on
insufficiency of evidence and reasonable doubt. Consequently, his immediate release from
confinement is ORDERED unless he is otherwise detained for any other lawful or valid cause.
Costs de oficio. SO ORDERED.
G.R. No. 127122 July 20, 1999
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
JOVITO LOSANO y NACIS, accused-appellant.

PER CURIAM:
Despite the growing number of individuals in Death Row for incestuous rape of minors, the
number of these corrupt perverts hardly seems to have diminished. Before us yet again is
another loathsome example of a man's lechery so depraved, it exposes him to be nothing more
than a ravenous beast masquerading as a man.
On March 13, 1996, accused-appellant Jovito Losano y Nacis was charged with the despicable
crime of raping his own daughter under the following information:
That sometime in May, 1995, in Barangay Alipangpang, Municipality of
Pozorrubio, Province of Pangasinan and within the jurisdiction of this
Honorable Court, the above-named accused, by means of force and
intimidation, did then and there, willfully, unlawfully and feloneously (sic)
have carnal knowledge of private complainant, ROWENA LOSANO,
daughter of accused, then being only 6 years of age, all against her will and
without her consent.
CONTRARY to Law. 1
Upon his arraignment on August 26, 1996, accused-appellant entered a plea of not guilty. Trial
thereafter ensued, with the prosecution presenting as its witnesses the victim, Rowena Losano,
and her grandmother, Veronica Losano. Their testimonies show the following:

Rowena is the daughter of accused-appellant and Rosita Losano, their third child in a brood of
four. At the time of the alleged rape, Rowena was only six years old, having been born on April
17, 1990. Veronica Losano, on the other hand, is the grandmother of Rowena, accusedappellant being her son. Veronica testified that on September 25, 1995, while they were in
Baguio City, Rowena told her that her father had mashed her breasts and removed her panties.
Upon further questioning, Rowena added that her father had inserted his penis inside her. To
verify whether or not Rowena was telling the truth, Veronica and her daughter Priscilla Fetalino,
brought Rowena to the Baguio City office of the NBI to have her examined. Dr. Ronald Bandonill,
an NBI medico-legal officer, conducted the medical examination on October 3, 1995. The
medical certificate issued by Dr. Bandonill states that 1) at the time of the examination, there
were no extra-genital physical injuries on Rowena's body; and 2) that her physical virginity was
preserved. It did, however, remark that:
The presence of congestion and inflammation at the vestibular mucosa and
the hymenal area coupled with intense pain and tenderness indicates the
probability of attempted penetration of the area by the hard erect male
organ which was not successful, since it would produce massive genital
injury. 2
Veronica stated that the alleged rape incident took place at her house in Barangay Alipangpang,
Pozorrubio, Pangasinan. On cross-examination, Veronica admitted not having personal
knowledge of the alleged rape, having only been informed thereof by her granddaughter. She
also said that Rowena's mother was in Kuwait, having gone there in 1995, and that up to the
time of the trial, the latter had not yet returned.
When put on the witness stand, Rowena testified that while she was staying at their house in
Barangay Alipangpang, she remembered her father removing her dress and panties, fondling
her breasts and getting on top of her. She remembered seeing his sex organ and having it
inserted inside her. She said she felt pain when he did so. Rowena testified that her father told
her not to tell anybody, otherwise he would kill her. On further questioning, she said her father
inserted his penis inside her everyday.1wphi1.nt
On cross-examination, Rowena testified that her father had raped her at nighttime. She said that
while she was sleeping with her sister Maricel, and their grandmother Veronica, in a room on the
second floor of their house, her father carried her outside and raped her. She said her
grandmother woke up when she was carried outside the room by her father.
Testifying in his own behalf, accused-appellant said that he loved his children and that he could
not have raped Rowena, the latter being his daughter. He claimed that the charge of rape was
filed to discredit him and that he was the victim of a frameup. Accused-appellant stated that his
mother Veronica and his sister Priscilla held a grudge against him, thus, their filing of the rape
case. In elaboration, accused-appellant claimed that Priscilla wanted to buy from him a karaoke,
a Walkman, and several watches, items that he had brought back from Saudi Arabia, at a very
low price. He, however, declined. Instead, he sold these items to a third person for a higher
price. From then on, according to accused-appellant, bad blood ran between him and Priscilla.
Accused-appellant further testified that Veronica and Priscilla had asked him to sign a document
selling their land, which request he had not acceded to. He also explained that his mother and
sister claimed the money that his wife sent him every month.
On cross-examination, accused-appellant admitted that his daughter Rowena was six years of
age. Likewise, he testified that his wife had gone to Kuwait in 1993. Lastly, accused-appellant
admitted that his other daughter Maricel, age 11, had filed a criminal case for acts of

lasciviousness against him. Sometime during the proceedings, accused-appellant's counsel

adopted the medical certificate issued by Dr. Bandonill as their Exhibit "I" to prove the absence
of spermatozoa in the sex organ of Rowena.

After a thorough and painstaking review of the evidence on record, as well as of the arguments
advanced by the FLAG Anti-Death Penalty Task Force and by Solicitor General, we resolve to
affirm the judgment of conviction.

On September 27, 1996, the trial court rendered a decision, the dispositive portion of which
reads as follows:

In support of his allegation that he was convicted of an offense not charged in the information,
accused-appellant notes that he was charged with having committed rape "sometime in May
1995, in Barangay, Alipangpang, Municipality of Pozorrubio, Pangasinan." He, however, asserts
that the prosecution failed to prove that he had committed rape sometime in May 1995. If ever
accused-appellant raped his daughter, he claims that this did not occur in May but much later. In
support of his argument, accused-appellant points to the medico-legal report, which puts the
time of commission of the alleged rape at sometime in August 1995. Furthermore, accusedappellant alleges that "the congestion and inflammation at the vestibular mucosa and the
hymenal area coupled with intense pain and tenderness" mentioned in the medico-legal report
would have long disappeared if the rape had occurred sometime in May, four months before the
medical examination. Lastly, accused-appellant points to the testimonies of the prosecution
witnesses themselves as indicative that the alleged rape took place much later than May 1995.

WHEREFORE, the Court finds the accused, JOVITO LOSANO y NACIS,

GUILTY beyond reasonable doubt of the crime of RAPE defined and
penalized under Republic Act No. 7659, the offense having been committed
with the attendant aggravating circumstances of "when the woman is under
twelve years old" and "when the victim is under eighteen (18) years of age
and the offender is a parent", (sic) hereby sentences him to suffer the
supreme penalty of DEATH to be executed pursuant to Rep. Act No. 8177
known as the Lethal Injection Law, to pay the complainant, ROWENA
LOSANO in the amount of P50,000,00 as damages, and to pay the costs.
And the word of the law, it is said:
"Dura lex, sed lex", interpreted as: "The law is harsh (sic), but that (sic) is
the law."
SO ORDERED. 3
The penalty of death having been imposed, the decision is now before us for automatic review,
pursuant to Article 47 of the Revised Penal Code and Section 1(e), Rule 122 of the Rules of
Court. The Free Legal Assistance Group (FLAG) Anti-Death Penalty Task Force submitted a
brief on behalf of the accused-appellant. In seeking a reversal of the September 27, 1996
decision, it raises the following as errors of the trial court:

Veronica Losano:
Q: Now, Madam Witness, between the period of September 25,1995 can
you recall if there was anything unusual that happened?
A: Yes, sir.
Q: What was that unusual incident about, Madam Witness?
A: My granddaughter told me that her breasts were mashed and her panties
were removed, sir.
xxx xxx xxx

1. THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE

ACCUSED-APPELLANT OF AN OFFENSE NOT CHARGED IN THE
INFORMATION;
2. THE TRIAL COURT GRAVELY ERRED IN GIVING FULL WEIGHT AND
CREDENCE TO THE TESTIMONY OF THE PRIVATE COMPLAINANT AND
IN DISREGARDING ITS INCONSISTENCIES;
3. THE TRIAL COURT MANIFESTED BIAS, THEREBY DEPRIVING THE
ACCUSED-APPELLANT OF HIS RIGHT TO A FAIR AND IMPARTIAL
TRIAL AND VIOLATING HIS RIGHT TO BE PRESUMED INNOCENT,
WHEN IT LED THE ACCUSED-APPELLANT TO ADMIT A MEDICO-LEGAL
EXAMINATION REPORT THAT IT LATER USED TO CONVICT HIM;

Q: Now, what else did your granddaughter, Rowena, tell you aside from
telling that the accused Jovito Losano, her own father, mashed her breasts
and removed her panties?
A: My granddaughter told me that after the accused mashed her breasts he
inserted his penis in the organ of my granddaughter, sir. 4
Rowena Losano:
Q: How many times did your father insert his penis to your vagina?
A: Everyday, sir.

4. THE TRIAL COURT GRAVELY ERRED IN FINDING THAT THE

ACCUSED-APPELLANT HAD THE PROPENSITY TO SEXUALLY ABUSE
HIS CHILDREN ON THE BASIS OF A PENDING CASE OF ACTS OF
LASCIVIOUSNESS FILED AGAINST HIM BY ANOTHER CHILD, AND IN
USING SAID FINDING TO CONVICT THE ACCUSED-APPELLANT.

Q: And after the length or rather after the last time that he did that to you,
you informed your grandmother about it?
A: Yes, sir. 5 (Italics accused-appellant's)

From the foregoing, accused-appellant draws the conclusion that what the prosecution may
have proved was a rape that occurred sometime in August or September, much later than May
1995, an offense he considers different from that which was alleged in the information. Drawing
on the principle that an accused cannot be convicted for an offense not charged in the
information, no matter how conclusive and convincing the evidence of guilt, 6 accused-appellant
argues that his conviction should be reversed.
Accused-appellant's argument holds no water. the Section 11 of the Rule 110 of the Rules of
Court provides:
Sec. 11. Time of the commission of the offense. It is not necessary to
state in the complaint or information the precise time at which the offense
was committed except when time is a material ingredient of the offense, but
the act may be alleged to have been committed at any time as to the actual
date at which the offense was committed as the information or complaint will
permit.
Thus, as early as 1903, this Court has ruled that while the complaint must allege a specific time
and place when and where the offense was committed, the proof need not correspond to this
allegation, unless the time and place is material and of the essence of the offense as necessary
ingredient in its description. Evidence so presented is admissible and sufficient if it shows 1) that
the crime was committed at any time within the period of the statute of limitations; and 2) before
or after the time stated in the complaint or indictment and before the action is commenced. 7
Unfortunately for accused-appellant, the date of commission is not an essential element of the
crime of rape, 8what is material being the occurrence of the rape, not the time of commission
thereof. 9 Hence, proof as to the time of rape need not correspond to the allegation in the
information. Likewise, the rape as committed within the period provided by the statute of
limitations. It may also be observed that while the rape proven occurred after the time stated in
the complaint, the action was commenced after the rape incident had transpired.1wphi1.nt
Additionally, it is too late in the day for accused-appellant to object to his conviction on the basis
of the erroneous date charged in the information. Sections 1 and 3(d) of Rule 117 of the Rules of
Court provides:
Sec. 1. Time to move to quash. At any time before entering his plea, the
accused may move to quash the complaint or information.
Sec. 3. Grounds. The accused may move to quash the complaint or
information on any of the following grounds:
xxx xxx xxx

Sec. 8. Failure to move to quash or to allege any ground therefor. 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 said 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 ours)
Sec. 3(d) of Rule 117 refers to the formal parts of a complaint or information provided for in
Sections 6 to 12 of Rule 110. These include, among others, the time of the commission of the
offense. In accordance with the above-mentioned sections, accused-appellant should have filed
a motion to quash the information on the ground that it alleged an erroneous date, before he
entered his plea. Accused-appellant, however, did not file a motion to quash. Instead, he had
himself arraigned, entering a plea of not guilty to the crime of rape. Such being the case,
accused-appellant has waived his right to object to the information on the ground of an errors as
to the time of the alleged rape.
When there is a variance between the allegation of the information and the evidence of the
prosecution with respect to the time when the crime was committed, and the accused interposed
a timely objection to such variance and showed that it was prejudicial to his interest in that it
deceived him and prevented him from having a fair opportunity to defend himself, the trial court
may, in the exercise of sound discretion, order the information amended so as to set forth the
correct date and may grant an adjournment for such a length of time as will enable the
defendant to prepare himself to meet the variance in date which was the cause of his surprise.
But if the accused himself offers no objection to such a variance and no relief is asked, and that
in place of objection the accused accepts the issue and enters upon his defense and produces
his witnesses, giving evidence with regard to the very transaction concerning which the
prosecution's witnesses had offered their testimony, an objection raised for the first time in
appellate court based on such variance in untenable. 10
It is, likewise erroneous for the accused-appellant to claim that what the prosecution was able to
prove was an offense different from that charged in the information. If the date of the
commission of a crime is erroneously set forth in the information, the fact that the prosecution
proves the correct date does not mean necessarily that an inference could legitimately be drawn
that two crimes had been committed. If the accused himself offers no objection to such variance
it must be assumed that he is not prejudiced thereby and that the change in date has in no wise
affected his ability or opportunity to defend himself. This is specially true where, in place of
objection, the accused accepts the issue tendered by the evidence of the prosecution and
proceeds to meet it with evidence of his own. 11 Accused-appellant may not, thus, allege that he
was convicted of an offense different from that charged in the information.
In his second assignment of error, accused-appellant characterizes Rowena's testimony as
coached, the same having been educed through leading questions propounded by the
prosecution.

d) That it does not conform substantially to the prescribed form;

Fiscal Matro
xxx xxx xxx (Italics ours)
Q: Are you the same Rowena Losano who is the complainant in this case?
Likewise, Section 8 of Rule 117 provides:
A: Yes, sir.

Q: The one you (sic) accusing in this (sic) is Jovito Losano who is your own
father?

Q: And after that he went on top of you, is that correct?

A: Yes, sir.

A: Yes, sir.
Q: Do you remember having seen his sex organ?
Q: Can you recall what your father did to you which is now the subject of
your complaint?
A: Yes, sir.

Q: After he went on top of you do you still remember what he did to you?

Q: What did your father Jovito Losano did (sic) to you?

Atty. Padilla

A: Yes, sir.
Q: What did he do to you? Do you remember your father inserting his penis
to (sic) your vagina?

I would like to manifest, your Honor, that the witness cannot answer the
question, despite reasonable time, your Honor.
xxx xxx xxx
Fiscal Matro
Q: Do you remember that your father did something to you while you were
in your house in Alipangpang, Pozorrubio, Pangasinan?
A: Yes, sir.
Q: Do you remember your father having removed your dress and panties?
A: Yes, sir.
Q: After your father removed your panties what did he do to you?
A: (No answer from the witness)
Q: Do you also remember your father fondling your breast?
A: Yes, sir.
Q: After your father fondled your breast, he made you lie down, is it not?
A: Yes, sir.
Q: Then he also removed his pants and his brief, do you remember that
also?
A: Yes, sir.

A: Yes, sir.

A: Yes, sir.
Q: What did you feel after that?
A: It was painful, sir.
Q: Was he able to insert his penis in whole to (sic) your vagina?
A: Yes, sir.
Q: How long did he insert his penis to (sic) your vagina?
A: Brief (sic), sir.
Q: After that what did your father tell you?
A: He told me not to tell anybody otherwise he will kill me, sir.
Q: And after that your father left the house, do you remember?
A: Yes, sir.
Q: How many times did your father insert his penis to your vagina?
A: Everyday, sir. 12
As a general rule, leading questions are not allowed. When the witness is a child of tender
years, however, it is proper for the court to allow leading questions, 13 as it is usually difficult for a
child of tender years to state facts without prompting or suggestion. In the case at hand, Rowena
is a child of tender years, being only seven years old at the time of her testimony. As we have
held in People v. Vargas, 14 "[c]hildren are naturally meek and shy. They need patient and careful

probing to encourage them to talk in public about a traumatic experience. Indeed, recounting an
ordeal of rape in a courtroom is tremendously difficult and devastating even for an adult
woman. . . Hence, we find nothing wrong when the trial judge propounded probing questions to
(the victim) to coax truth out of her reluctant lips."
Accused-appellant also points to inconsistencies in the testimony of Rowena as proof that the
alleged rape never took place. Accused-appellant juxtaposes Rowena's testimony saying that
her grandmother was awakened when her father came to her room to get her with Veronica's
testimony saying that she was in Baguio at the time her granddaughter was raped. Accusedappellant also claims that he could not have raped his daughter for if Rowena's grandmother
was awake at the time of the alleged rape, she certainly would have heard the cries of pain of
her granddaughter.
This Court has time and again ruled that the sole testimony of the victim in a rape case is
sufficient to sustain a conviction if such testimony is
credible. 15 By the very nature of rape cases, conviction or acquittal depends almost entirely on
the credibility of the complainant's testimony, the fact being that usually only the participants
thereto can testify as to its occurrence. 16 In the instant case, the trial court found the testimony
of Rowena to be credible, possessing as they did "all the semblance of truth." We find no
compelling reason to disturb the trial court's reliance on Rowena's testimony, it being hornbook
doctrine that the findings of fact of the trial court is entitled to the highest respect, it being in the
best position or to determine questions of credibility of witnesses, having heard them and
observed their deportment and manner of testifying. 17
Furthermore, the alleged inconsistencies pointed out by accused-appellant pertain only to minor
matters which strengthen rather than weaken the credibility of Rowena. In any case, the
presence or absence of Veronica at the house where the alleged rape took place does not
detract from the fact that Rowena's testimony points to accused-appellant as her assailant.
When a woman, especially if she is a minor, says that she has been raped she says in effect all
that is necessary to show that rape was committed. 18
Likewise, whether or not Veronica awoke when accused-appellant took his daughter out of the
room will not and cannot affect Rowena's credibility, as the same does not disprove that the rape
was not committed. And even if its were true that Veronica awoke at the time accused-appellant
carried his daughter out of the room, no protest could have been forthcoming, as the former
probably did not know that accused-appellant was out to rape his own flesh and blood. Again,
the allegation that the rape could not have taken place due to the proximity of Veronica's
presence holds no water. The nearby presence of people in a certain place is no guarantee that
rape will not and cannot be committed, 19 lust being no respecter of time and place.

"'[v]eritas simplex oration est, the language of truth is simple, it can come from the mouth of a
child and the lips of the poor, simple and unlettered."
In his third assignment of error, accused-appellant claims that the trial court judge was biased
against him, allegedly because it peremptorily ordered his defense counsel to stipulate to the
medico-legal report since the findings therein were "negative," thereby depriving him of a chance
to cross-examine the doctor on the correctness of the latter's findings. Accused-appellant claims
these findings were used by the trial court in convicting him, as follows:
It could now be deduced without contradiction that the accused had really
inserted his sexual organ upon the pudenda of his daughter but he was
hesitant to fully insert it considering the size of his erected penis to that
vagina of his 5 years and 1 month old child as this would, according to the
medical witness, "produce massive genital injury." Evidence would show
that the accused's sex organ had penetrated slightly into his daughter's
vagina because of the presence of congestion and inflammation at the
vestibular mucosa and the hymenal area coupled with the intense pain and
tenderness indicates the probability of attempted penetration of the area by
the hard erect male organ which was not successful. 21
The relevant testimony cited by accused-appellant to prove the trial court's alleged bias is as
follows:
Court
Who is your next witness, Fiscal?
Fiscal Matro
The doctor, Your Honor.
Court
Can you stipulate on this whether you agree or not? Anyway, the finding
there is negative. You stipulate now as to the existence of Exhibit "A."
(Emphasis ours).
Atty. Padilla.

It may also be observed that for his defense, accused-appellant could only deny having raped
his daugther. Well-entrenched is the rule that denial is inherently weak and easily fabricated. 20 It
becomes even weaker in the face of the positive identification by the victim, Rowena, of
accused-appellant as her assailant.
We also reject accused-appellant's contention that the rape charge was due to the bad blood
between him and his mother and sister. No sister would be so depraved as to condemn a
brother to possible death for failure to sell a karaoke, Walkman and watches at bargain
basement prices. Neither would a mother be so callous as to seal her son's doom for his refusal
to sell a piece of land. Lastly, it would be unlikely for Rowena, a seven-year old, to fabricate a
story of rape which would put her own father on Death Row. As aptly stated by the trial court,

Yes, Your Honor. We admit.

Court
Place on record that the Counsel for the accused is admitting the existence
of Exhibit "A." 22
While the trial court's denomination of the medico-legal report as negative may not have been
judicial nor judicious, it can hardly be deduced from the above testimony that the court a

quo peremptorily ordered defense counsel to stipulate on the medico-legal report. In fact, the
Court was not addressing defense counsel but the fiscal. It was defense counsel, however, who
admitted to the existence of the medico-legal report. In fact, not only did defense counsel admit
the existence of such report, it would later on adopt the same as its own exhibit in order to prove
the absence of spermatozoa. 23 Accused-appellant cannot, thus, denounce the judge for bias for
the improvidence of his counsel in adopting said medico-legal report.
Neither may accused-appellant repudiate the actions of his counsel, it being within the
competence of the latter to stipulate on the existence of said medico-legal report, the same
being a mere procedural question. Well-settled is the rule that such questions as what action or
pleading to file, where and when to file it, what are its formal requirements, what should be the
theory of the case, what defenses to raise, how the claim or defense may be proved, when to
rest the case, as well as those affecting the competency of a witness, the sufficiency, relevancy,
materiality or immateriality of certain evidence and the burden of proof are within the authority of
the attorney to decide. 24 Whatever decision an attorney makes on any of these procedural
questions, even if it adversely affects a client's case, will generally bind a client. More
importantly, accused-appellant's conviction does not rest on this piece of evidence alone but on
the testimony of the victim herself.
Lastly, accused-appellant scores the trial court for holding that he had the propensity to sexually
abuse his children on the basis of a pending case for acts of lasciviousness filed against him by
another child. Upon this particular, accused-appellant raises a valid point. The trial court, in its
assessment of the evidence, found that accused-appellant had admitted that a case for acts of
lasciviousness had been filed against him. Based on Section 34 of Rule 130 25 providing that
similar acts may be deceived to prove a specific intent, plan, system, scheme, and the like, the
trial court drew the conclusion that the accused-appellant had the propensity to prey on his
daughters.
The admission of the accused-appellant that he was facing a charge of acts of lasciviousness
filed by his eleven-year old daughter only proves that such a case was filed and pending with the
municipal court. It does not prove the propensity of the accused-appellant to crave for his
children. The pendency of said case to his guilt thereof, the trial court ignored the constitutional
presumption of innocence afforded to the accused-appellant.
The trial court's error on this point does not, however, obliterate the fact that the prosecution was
able to prove that indeed, accused-appellant raped his daughter. In sum, we find no reason to
disturb the finding of the trial court that the guilt of the accused-appellant has been proved
beyond reasonable doubt.
As to the penalty imposed, Article 335, as amended by Republic Act No. 7659, provide that the
death penalty shall be imposed if the rape victim is under eighteen years of age and the offender
is a parent, ascendant, step-parent, guardian, relative by consanguinity or affinity within the third
civil degree, or a common-law spouse of the parent of the victim. The case at hand is clearly
within the ambit of Article 335, accused-appellant being the father of the victim, Rowena, who
was only six years of age at the time of the rape incident. The supreme penalty of death was,
thus, properly imposed upon accused-appellant.
With regard to the civil indemnity, recent jurisprudence has held that where the crime of rape is
committed or effectively qualified by any of the circumstances under which the death penalty is
authorized the civil indemnity to be awarded to the victim is increased to P75,000.00. 26 We also
find it proper to award P50,000.000 as moral damages although proof of such entitlement was
not presented. 27

Four members of the Court maintain their position that Republic Act No. 7659, insofar as it
prescribes the death penalty, is unconstitutional; nevertheless they submit to the ruling of the
Court, by a majority vote, that the law is constitutional and that the death penalty should be
accordingly imposed.
WHEREFORE, premises considered, the judgment of the trial court dated September 27, 1996
imposing the death penalty of accused-appellant Jovito Losano y Nacis is hereby AFFIRMED,
with the MODIFICATION that accused-appellant should indemnify the victim, ROWENA
LOSANO, in the amount of P75,000.00 as civil indemnity and P50,000.00 as moral damages,
respectively. Cost against the accused-appellant.
In accordance with Article 83 of the Revised Penal Code, as amended by Section 25 of Republic
Act No. 7659, upon finality of this Decision, let a certified true copy thereof, as well as the
records of this case be forthwith forwarded to the Office of the President for possible exercise of
executive clemency.1wphi1.nt
SO ORDERED.

Attorney-General Villamor for appellant.

J. F. Yeager for appellee.
MORELAND, J.:
This is an appeal from an order of the Court of First Instance of the Fourteen Judicial District
sustaining a demurrer to a information and dismissing the case.
The information is as follows:
The undersigned accuses one Antonio Javier Dichao of the crime of rape, committed
as follows:
On or about and during the interval between October, 1910, to August, 1912, in the
municipality of Davao, District of Davao, Moro Province, P.I., the aforesaid accused
did then and there, willfully, maliciously, and feloniously have sexual intercourse with,
and did lie with, and carnally know a woman, Isabel de la Cruz, under 12 years of age,
in the following manner, to wit: the aforesaid accused is the stepfather of the aforesaid
Isabel de la Cruz and during the aforesaid period was the legal guardian of the said
Isabel de la Cruz; that by threats and corporal punishment upon said Isabel de la
Cruz, the aforesaid accused, Antonio Javier Dichao, had sexual intercourse with and
did lie with and carnally know said Isabel de la Cruz; as a result whereof the said
Isabel de la Cruz gave birth on August 5, 1912, to a child. All contrary to law.
The demurrer alleged:
That the facts therein set forth and contained do not constitute a public offense.
That the said criminal complaint does not conform substantially to the prescribed form.
That said complaint is vague and ambiguous.
We are of the opinion that the order appealed from must be affirmed. The allegations of an
information should, if possible, be sufficiently explicit and certain as to time to inform the
defendant of the date on which the criminal act is alleged to have been committed. Unless the
accused is informed of the day, or about the day, he may be, to an extent, deprived of the
opportunity to defend himself.

G.R. No. L-8781

March 30, 1914

THE UNITED STATES, plaintiff-appellant,

vs.
ANTONIO JAVIER DICHAO, defendant-appellee.

While section 7 of the Code of Civil Procedure provides that "except when time is a material
ingredient of an offense, the precise time of commission need not be stated in a complaint or
information, but the cat may be alleged to have been committed at any time before the filing
thereof," this does not mean that the prosecuting officer may be careless about fixing the date of
the alleged crime, or that he may omit the date altogether, or that he may make the allegation so
indefinite as to amount to the same thing. Where the exact date cannot fixed, or where the
prosecuting officer is not thoroughly satisfied that he can prove a precise date, he should allege
in the information that the crime was committed on or about a date named. Under such
allegation he is not required to prove any precise date but may prove any date which is not so
remote as to surprise and prejudice the defendant. In case of surprise the court may allow an
amendment of information as to time and an adjournment to the accused, if necessary, to meet
the amendment.

In the case of United States vs. De Castro (2 Phil. Rep., 616), the information demurred to was
as follows:
The undersigned provincial fiscal accuses the defendant of the crime of bribery,
committed as follows:
That as municipal president of the town, in consideration of gifts of money, he
permitted opium joints and gambling houses. This contrary to the law.
Among the many defects of this information the court pointed out the following:
The complaint is also defective in not stating the time at which the offense occurred.
While it is not necessary, unless time is a material ingredient of the offense, that the
precise time of the commission of the offense should be stated, still the act should be
alleged to have been committed at some time before the filing of the complaint.
The decisions in the case of United States vs. Enriquez (1 Phil. Rep., 179), and United
States vs. Cardona (1 Phil. Rep., 381), are not in conflict with the doctrine herein laid down, nor
with the case of United States vs. De Castro from which the above quotation is made. In the first
case the information alleged that the estafa complained of was committed on the 20th of
November 1897. A demurrer was filed to the information on statutory grounds. It was overruled
and the defendant put upon trial. He was convicted and appealed to this court, bringing up on
the appeal the questions arising on the order overruling the demurrer as well as on the merits. It
is clear that the demurrer did not raise, so far as the information is concerned, the question of
time, as in the case at bar, as the precise date upon which the crime was alleged to have been
committed was set out in the information. The questions presented to the Supreme Court was,
therefore, not whether the information alleged the time with sufficiently certainty. The question in
the case was whether the allegations of the complaint sufficiently notified the defendant "of the
transaction from which it is claimed the crime results, so that he can prepare his defense." The
discussion in that case turned on whether the defendant, after reading the complaint, was able
to tell "to what acts of his done in the past the complaint refers." In determining the question the
court discussed, among other things, the allegation with reference to the time when the estafa
was committed. In the connection it was said:
In this complaint the estafa is alleged to have been committed on November 20, 1897.
Time, however, was not a material ingredient in the offense of estafa here charged,
and under the provisions of article 7 of General Orders, No. 58, that date need not
have been alleged.
After discussing the various elements of an information charging estafa necessary to identify the
acts which constitutes the crime, thereby notifying the defendant of the precise act of his
complained of, the court concluded: "It is plain that the complaint did not restrict the Government
to proof of any defined specific transaction, and consequently that the defendant had no notice
of the transaction which was to be investigated."
In the Cardona case the theft of a carabao was alleged in the information to have taken place on
the 25th of March of a certain year. The evidence introduced showed that the crime was
committed on the 5th day or 6th of March of the same year. The defendant in his brief claimed
that the evidence introduced should have been restricted to the date mentioned in the
information, or the 25th of March.

The court in response to this contention said: "The testimony as to the whereabouts of the
defendant on March 25 was unimportant, as the evidence shows that the robbery was
committed about the 5th or 6th of March. The defendant in his briefs claimed that the evidence
should be restricted to the date mentioned in the complaint, which was the 25th of March. In this
case, however, the date was not a material ingredient of the offense, and under the provisions of
section 7 of General Orders, No. 58, the Government was not limited in its proof to the date
stated therein."
In these two cases, therefore, different questions are presented from those found in the case
before us. In the first case the question of time is alleged in the information was discussed in an
accidental way for the sole purpose of determining whether it of itself, or in connection with the
other allegations, sufficiently identified the transaction which it was claimed constituted the
estafa, so as to notify the defendant of the transaction referred to. the other allegations of the
information not being sufficient of themselves to do so. In the Cardona case the question was
raised by demurrer. The allegation in the information as to the time when the crime was
committed was definite and certain. The only question raised on the appeal related to the
alleged variance between the date of the crime as alleged in the information and that proved on
the trial. In that case, as we have seen, the court said that, the time alleged not being, under
section 7, a material ingredient of the offense, it did not have to proved as laid. It did not hold
that, if it had appeared to the trial court, on the trial, that the variance between the allegation of
the information and the proof on the trial had been such as to surprise the defendant and
prejudice him in his defense, the court would not have been authorized to amend the information
and to grant an adjournment, if necessary, to give the defendant an opportunity to meet the
charge as amended.
The same remarks apply to the case of United States vs. Arcos (11 Phil. Rep., 555), where the
information alleged "that between the 2d and the 15th of August, 1906," the accused committed
the crime described therein; and the case of United States vs. Smith (3 Phil. Rep., 20), in which
the information charged "that the accused, in the month of December last," committed the crime
therein set forth.
The question whether the allegations of the information are sufficiently definite as to time and
question which arises on a variance between the allegations and the proof are different in nature
and legal effect, and are decided on different principles.
In the case before us the statement of the time when the crime is alleged to have been
committed is so indefinite and uncertain that it does not give the accused the information
required by law. To allege in an information that the accused committed rape on a certain girl
between October, 1910, and August, 1912, is too indefinite to give the accused an opportunity to
prepare his defense, and that indefiniteness is not curd by setting out the date when a child was
born as a result of such crime. Section 7 of the Code of Criminal Procedure does not warrant
such pleading. Its purpose is to permit the allegation of a date of the commission of the crime as
near to the actual date as the information of the prosecuting officer will permit, and when that
has been done by any date may be prove which does not surprise and substantially prejudice
the defense. It does not authorize the total omission of a date of such an indefinite allegation
with reference thereto as amounts to the same thing.
As before intimated, we are not to be understood as saying that a variance between the date of
the commission of the crime as alleged in the information and that as proved on the trial
warrants necessarily the acquittal of the accused. The result of what we intend to say is that, if
such a variance occurs and it is shown to the trial court that the defendant is surprised thereby,
and that, by reason of that surprise, he is unable to defend himself properly, the court may, in the

excercise of sound discretion based n all the circumstances, order the information amended so
as to set forth the correct date and may grant an adjournment for such length of time as will
enable the defendant to prepare himself to meet the variance in the date which was the cause of
surprise.

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
PABLO MOLERO, defendant-appellant.

The judgment appealed from is affirmed.

GUTIERREZ, JR., J.:
Appellant Pablo Molero was charged with the crime of rape by his own daughter Pacita Molero
in a complaint filed in the Court of First Instance of Negros Oriental. The criminal complaint
dated March 30, 1978 alleged:
That on or about the 5th day of February, 1976, on the banks of the river
Siaton at Sitio Balogo, Barangay Tamlang, Municipality of Santa Catalina,
Province of Negros Oriental, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, with grave abuse of
confidence being the father of the herein complainant, with force and
intimidation by brandishing a bolo in threatening the undersigned that if the
latter would not submit to his carnal desires he would kill the undersigned
and all the members of the family, did then and there wilfully, unlawfully and
feloniously have carnal knowledge with the undersigned complainant
against the will of the latter.
The facts established by the prosecution and accepted by the trial court as basis for the
judgment of conviction are summarized by the court as follows:
It appears from the evidence particularly in the testimony of complainant
Pacita Molero that on February 5, 1976 at about 9:00 o'clock in the morning,
her father, Pablo Moler, told her to go with him to the Siaton River at
Tamlang, Sta. Catalina, Negros Oriental, about a kilometer away from their
house ostensibly to catch shrimps and perhaps fish presumably for viand for
the family that day. Pacita was the third among the seven children of Pablo.
On February 5, 1976, she was barely 17 years young having been born on
November 11, 1958. Obeying the command of her father, she went with him
to the Siaton River which evidently was a secluded area in the mountain
barrio of Tamlang. As they reached the river and while walking along its
bank, with Pacita ahead and followed by her father, all so suddenly Pacita
was hugged from behind by her father, and she staggered and fell to the
ground face up. He fell too as he was holding her left hand placing it on her
back while he knelt on her right arm. She tried to struggle but he
unsheathed his harp bolo (locally known as PINUTI) and placed it along her
side. He then proceeded to pull up her dress and remove her short pants
and panty. She cried saying 'why are you doing this to me' and he only
answered 'you shut up.' (Tsn-Gertrudes Tangon, Dec. 7, 1978, page 12 of
her transcript and page 247 of record). Then he unbuttoned his pants, let
out his penis and lay on top of her and did the push and pull movement in
sexual intercourse. She tried to kick him but he again held the unsheathed
bolo which was placed on her side. Afraid that he might do her harm with
the bolo if she continued to put up resistance, and obviously because of his
moral ascendancy over her, the accused succeeded in having sexual
intercourse with his daughter and the latter again cried.

After he satisfied his carnal lust, he stood up and the complainant likewise
stood up and put on her panties and pants and proceeded home. Before
she walked home, the accused warned her not to tell her mother of what
happened otherwise he would kill all of them . As she walked home, she
noticed that her father followed her and did not proceed anymore in
catching fish or shrimps. She surmissed that he followed her, so she would
not have the opportunity to tell her mother of what happened until three
days later or on February 8, 1976. Among others, Pacita Molero said:

In connection with the investigation of the complaint of Pacita Molero, Dr.

Enofreda Abordo-Sebul testified that she conducted an internal and external
examination of Pacita Molero and she found that her vaginal opening
admitted two fingers freely and easily and there were old lacerations of the
hymen at two o'clock , three o'clock, five o'clock , six o'clock , seven o'clock,
nine o'clock, ten o'clock and twelve o'clock, thus showing that Pacita Molero
had several previous sexual intercourses, although the cervical smear
showed no signs of spermatozoa.

I just decided to report the matter to my mother whether he will kill all of us
because I could no longer endure what he had been doing to me.' (TsnGertrudes Tangon, page 14 of transcript and page 249 of record)

The appellant denied the charge. According to him, he could not have committed the crime
because on February 5, 1976, he was already confined in the provincial jail and that he had
been in jail since December 7, 1975.

Upon being informed of the incident her mother told her to just keep quiet
for the moment as they would report the matter to the police authorities
soon. They were secretive about their plan to report to the police because
the mother and the daughter and the whole family knew that the accused
was quite a fierce man, a cruel husband and a merciless father.

The appellant also denied any knowledge of the sworn statement he made "because I am an
illiterate" (TSN, March 8, 1982, p. 11). He, however, admitted that he was investigated by PC
soldiers before he was placed in the stockade.

On February 11, 1976, Pacita Molero and her mother went to the office of
the Station Commander of Pamplona, Negros Oriental, to report the
incident. The accused was also called to the office and the accused and his
daughter had a confrontation before the Station Commander. The accused
asked 'what is this all about, Pacita' and she answered saying 'this could not
have happened if you did not abuse me.' (Tsn-Nena S. Saad, Dec. 5, 1978,
page 15 of her transcript, page 219 of record). It would seem that the case
was too serious for the station Commander of Pamplona to handle, so the
complainants were advised to report to the PC Headquarters at barrio
Palanas.
At the PC Headquarters the complaint was investigated by Patrolman Arturo
Adriatico Sr. who took down the statement of Pacita Molero and her mother.
The accused was likewise investigated by Adriatico on February 25, 1976,
but the accused did not want the investigation to be continued beacuse
according to him this was just their 'own problem.' Asked to elaborate what
he meant by 'own problem' the accused said 'kaugalingon ra nakong sala sa
akong pagpuyo' which in English , means 'it is my own fault in my family
life.' Asked to elaborate further on his last statement, the accused said:

During the investigation, he denied the rape charge filed against him by his own daughter
"because as a man, I have been earning my living for I have masters to serve like my stomach
and my children. So, I have to work in my own humble way." (TSN, March 8, 1982, p. 12)
Moreover, he stated that before the investigation started he was not informed of his
constitutional rights to remain silent and to counsel; that he was not assisted by counsel during
the investigation and that the first time he had a lawyer was at the trial of the instant case.
The appellant's defense of alibi was readily refuted by Benjamin Alcorcon, Supervising Prison
Guard of the Negros Oriental Provincial Jail who informed the court that according to the records
of the Provincial Jail, the appellant was committed to the Jail only on December 2, 1976 and that
definitely on February 5, 1976, he was not yet confined there.
The trial court found the appellant guilty beyond reasonable doubt of the crime of Rape as
defined and penalized under Art. 335 of the Revised Penal Code. He was sentenced to suffer
the penalty of Reclusion Perpetua and to indemnify Pacita Molero the sum of P10,000.00 and to
pay the costs of this action.
The appellant submits that the issues involved in the instant case are as follows:
a) Whether or not, under the facts obtaining in the case at bar, accused- appellant, Pablo Molero
was placed under double jeopardy; and

Nga akong nahapanglapasan ang salingsing sa sacramento sa among

pagpuyo nga ang akong anak babaye akong gibuongan sa iyang dumgog

b) Whether or not the accused-appellant committed the crime of rape.

which in English means:

The double jeopardy issue stems from the following antecedent facts:

I have commited a wrong against my own daughter wherein I destroyed her

virtue as a woman.

The original complaint of Pacita Molero, dated March 22, 1977, charged her father with the
crime of rape allegedly committed "on or about the 13th day f February, 1976." Except for the
date which is "on or about the 5th day of February, 1976" in the March 30, 1978 complaint, the
facts alleged in the two complaints were exactly the same.

These statement above quoted are found in the sworn statement of the
accused (Exhibit "B" ) which was testified to by Pat. Arturo Adriatico, Sr.

The appellant was originally arraigned under the March 22, 1977 criminal complaint. He pleaded
"Not Guilty."

During the trial, Pacita Molero, the complaining witness testified that she was raped by her father
on February 5, 1976.
In view of Pacita's testimony, the assistant provincial fiscal filed a motion for leave to amend the
complaint.
The motion was granted. However, upon a motion for reconsideration filed by the appellant, the
trial court issued an Order the dispositive portion of which reads:
WHEREFORE, the motion for reconsideration filed by the accused dated
February 22, 1978 in relation to the Reply to Opposition to Motion for
Reconsideration dated March 6, 1978 is hereby granted and the Order of
this Court dated February 17, 1978 admitting the amended criminal
complaint dated February 2, 1978 is hereby set aside, and the said
amended criminal complaint is hereby denied admission. Accordingly, this
case is hereby dismissed with costs de oficio, but the accused shall not be
discharged as there appears a good cause to detain him in custody to
answer for the proper offense pursuant to Sec. 12, Rule 119 of the Rules of
Court. the Provincial Fiscal and/or the prosecuting fiscal is hereby ordered
to cause the filing of a new complaint and/or information charging the
accused of the proper offense of rape committed on or before February 5,
1976 within thirty (30) days from receipt of this Order. (People v. de la Cruz,
59 Phil. 529, cited by Padilla, Criminal Procedure, 1971 ed., p. 763.)

defendant had pleaded to the charge, the conviction or acquittal of the

defendant or the dismissal of the case shall be a bar to another prosecution
for the offense charged, or for any attempt to commit the same or frustration
thereof, or for any offense which necessarily includes or is necessarily
included in the offense charged in the former complaint or information.
Dismissal of the first case contemplated by this rule presupposes a definite or unconditional
dismissal which terminates the case. (Jaca v. Blanco, 86 Phil. 452; People v. Manlapas, 5 SCRA
883; Republic v. Agoncillo, 40 SCRA 579; People v. Hon. Surtida, 43 SCRA 29; People v. Mogol,
131 SCRA 296). And "for dismissal to be a bar under the jeopardy clause of the Constitution, it
must have the effect of acquittal." (People v. Agoncillo, supra)
It is quite clear that the order of the trial court dismissing the Criminal Case No. 2148 was
without prejudice to the filing of a new complaint and/or information charging the appellant with
the proper offense. The case was not terminated because the dispositive portion of the order
expressly directed the Provincial Fiscal and/or the prosecuting fiscal to file a new complaint
and/or information charging the accused with the proper offense of rape committed on or before
February 5, 1976. The case was dismissed for no other reason except to correct the date of the
crime from "on or about the 13th day of February" to "on or about the 5th day of February."
Hence, the provisional dismissal of Criminal Case No. 2148 could not have barred the
prosecution of the case against the appellant.
Contrary to the claim of the appellant, the dismissal of Criminal Case No. 2148 did not amount to
his acquittal.

Accordingly, the corrected criminal complaint dated March 30, 1978 was filed.
The appellant filed a motion to quash the criminal complaint on the ground that the appellant had
been previously in jeopardy of being convicted of the offense charged citing Section 1(h) Rule
112 of the Revised Rules of Court. The motion was denied. Arraignment followed. The appellant
pleaded "Not Guilty." Thereafter, hearings were conducted resulting in the conviction of the
appellant.
The appellant now contends that he was placed in double jeopardy when the instant case was
filed and he was brought to trial to answer for the crime of rape allegedly committed on February
5, 1976. He argues that the dismissal of Criminal Case No. 2148 on ground of variance between
allegation and proof amounted to his acquittal, citing People v. Opemia (98 Phil. 698). He points
to the fact that the criminal complaint alleged that he committed the crime of rape on February
13, 1976 and yet the prosecution's evidence shows that the alleged crime was committed on
February 5, 1976.
Section 22, Article IV of the 1973 Constitution states that no person shag be put twice in j
jeopardy of punishment for the same offense." Section 9, Rule 117 of the Revised Rules of
Court, now substantially reproduced as Section 7, Rule 117 in the 1985 Rules on Criminal
Procedure, lays down the necessary requisites in order that defense of double jeopardy may
prosper, to wit:
Former conviction or acquittal double jeopardy. -When defendant shall have
been convicted or acquitted, or the case against him dismissed or otherwise
terminated without the express consent of the defendant by a court of
competent jurisdiction, upon a valid complaint or information or other formal
charge sufficient in form and substance to sustain a conviction and after the

There was no need for the trial court to have used such a cumbersome procedure. What the trial
court should have done was simply to deny the motion for reconsideration of the order granting
the prosecution's motion for leave to amend the complaint as to the date of the commission of
the crime from February 13, 1976 to February 5, 1976. There was no need to dismiss the case
without prejudice to the filing of a new complaint. Section 12, Rule 119, Revised Rules of Court
applies when there is a mistake in charging the proper offense but not when an honest error of a
few days is sought to be corrected and the change does not affect the rights of the accused. The
prosecution in Criminal Case No. 2148 had already moved for the amendment of the date of the
commission of the crime. The dismissal of the case pursuant to Section 12, Rule 119 of the
Revised Rules of Court was made only for that precise purpose.
After arraignment and where the appellant has pleaded "not guilty," it is still proper to amend the
date of the commission of the crime? The applicable rules are Sections 10 and 13, Rule 110 of
the Revised Rules of Court. These rules provide:
Time of the commission of the offense.-It is not necessary to state in the
complaint or information the precise time at which the offense was
committed except when time is a material ingredient of the offense, but the
act may be alleged to have been committed at any time as near to the
actual date at which the offense was committee as the information or
complaint will permit.
xxx xxx xxx
Amendment. The information or complaint may be amended, in substance
or form, without leave of court, at any time before the defendant pleads; and

thereafter and during the trial as to all matters of form, by leave and at the
discretion of the court, when the same can be done without prejudice to the
rights of the defendant.
Applying the rules, the amendment sought by the prosecution should have been granted.
The precise time of the commission of the crime is not an essential element of the offense of
rape. The amendment of the complaint changing the date of the commission of the crime of rape
from February 13, 1976 to February 5, 1976, a difference of eight (8) days was only a matter of
form under the facts of this case and did not prejudice the rights of the appellant. This Court has
ruled:
In the case of People v. Rivera (1970, 33 SCRA 746), We ruled that the
amendment of the information as to the date of the commission of the
offense from March 2, 1964 to March 2, 1965, a difference of one (1) year or
twelve (I 2) months, was merely a matter of form and does not prejudice the
rights of the accused, reiterating the ruling in the case of U.S. v.
Ramos, (1912, 23 Phil. 300) where the Fiscal was permitted to amend the
date of the commission of the offense from June 16, 1910 to June, 1911.
The phrase 'on or about' employed in the information does not require the
prosecution 'to prove any precise date but may prove any date which is not
so remote as to surprise and prejudice the defendant. In case of surprise,
the Court may allow an amendment of the information as to time and an
adjournment to the accused, if necessary, to meet the amendment' (U.S. v.
Dichao, 27 Phil. 420, 423 [1914]).

The constitutional mandate against putting a person twice in jeopardy of

punishment for the same offense is to protect the accused from going
through a trial a second time. But, since the first proceedings has not yet
been terminated, there is no second proceeding to speak of, and, therefore,
no double jeopardy (Flores, Jr. v. Enrile, 115 SCRA 236).
Under the second issue, the appellant insists that the evidence failed to establish the presence
of force and intimidation in the commission of the sexual act. He mentions Pacita's testimony
that she had a series of sexual intercourses with the appellant since she was thirteen years old
and yet did not report the incident to her mother. He argues that if a crime was committed by him
at all, it was one of qualified seduction.
The appellant's arguments deserve no merit. Pacita's narration of the incident clearly shows that
the appellant employed force and intimidation against her, to wit:
FISCAL:
Q Now,on what part of the river did this incident
happen??
A At Balogo while we were walking on the edge of the
river.
Q You mean, you were following the river?
A Yes, I was ahead.

In the case of People v. Reyes, (supra) on which the respondent judge

relies, the change sought was from 1964 to 1969, a difference of five (5)
years, which gap of five years 'is so great as to defy approximation in the
commission of one and the same offense.'
This is not so in the case at bar where the difference is only, as aforestated,
two months and five days, which disparity allows approximation as to the
date of the commission of the offense of grave coercion." (People v.
Borromeo, 123 SCRA 253).
The appellant's reliance on the case of People v. Opemia supra, is not well- taken. The
amendment proposed in that case was the changing of the date of the commission of the crime
from June 18, 1952 to July, 1947, or a difference of five years. We disallowed the amendment
and adopted the lower court's ruling that "the amendment that would change the date of the
commission of the offense from 1947 to 1952 is certainly not a matter of form.... It is apparent
that the proposed amendment concerns with material facts constituting the offense, and
consequently, it would be prejudicial to the constitutional rights of the defendants."
The dismissal of Criminal Case No. 2148 did not amount to the appellant's acquittal. In effect,
the order of dismissal does not constitute a proper basis for a claim of double jeopardy: (See
People v. Bocar, 138 SCRA 166)

Q Now, while you were ahead, there was that incident

that happened. What was that incident?
A Because he made me go ahead and suddenly he
wrestled me.
COURT:
Q Is that the correct translation?
FISCAL:
No, Your Honor. She was hugged from behind.
COURT:
'I was ahead and suddenly he hugged me from behind.'
That is the correct translation.

FISCAL:

A I was lying on my back.

Now, when you were hugged by your father suddenly

from behind, what happened?

Q And how about your left arm, which you said was
being held by your father while you were already lying
flat on the ground?

A I fell down.
A He pulled up my dress and put off my panties." (TSN,
November 20, 1978, pp. 8-10)

Q On the very place where you were then hugged by

your father?
xxx xxx xxx
A Yes.

FISCAL:
Q When you fell to the ground, what was your position?
A My left hand was placed in my back because he held
my left hand.
Q When did your father hold your left hand placing it at
your back?
COURT:
After you fell or before you fell?
A I had already my hand at my back when I fell down
because he immediately embraced me but then I tried
to free myself. After which, I fell down.
FISCAL:
When your father was hugging you and you told this
Court that you struggled to free yourself and you also
told the Court that you fell to the ground, when you fell
to the ground, did you fall to the ground together with
your father or you were the only one who fell to the
ground?
A He also fell down following me because he was
holding my hand.
Q And your father at that time was holding which of
your hand or arm?

According to you, you fell to the ground followed by

your father and your father was still holding your left
arm which was placed at your back. While you were
already flat on the ground, was your father still holding
your left arm at the back?
A He was still holding my left arm and then when we fell
down he knelt on my other arm.
Q And you are referring to your right hand?
A Yes.
Q When your father, the accused therein, was doing
that, where was he in relation to you?
COURT:
What was the position of your father when he was
kneeling on your right arm and holding your left arm on
the back?
A He was on a kneeling but bending position.
FISCAL:
Was he directly on top of you or he was on either side
of your body?
A On my side.

A Left.
Q And when you were already on the ground, win you
please tell the Court what was your position?

Q Which side of your body was your father when he

was kneeling or bending?

A My right.

Go ahead, Fiscal.

Q Then, while your father was doing that, what did he

do to you?

FISCAL:

A He was removing his buttons and he took off my

panties.
Q All right, now, how about your dress, what kind of
dress were you wearing at that time?

All right, now, according to you, your father, the

accused therein, removed your panty. Now, which was
removed first, your panty or the short pant you were
wearing because according to you, you were wearing
short pant?
COURT:

A I was wearing a thick clothing because I was sure that

I will be wet and I was also wearing a short pants.
COURT:
What is this thick clothes you were wearing? You mean,
dress, pants or blouse?

How can you remove the panty first when you are
wearing the short pant? Well, witness may answer the
question.
A Both were removed at the same time.
FISCAL:

A What I mean is that, the dress I was wearing was not

like this one I am wearing now but it was for a daily use.
Q It is a one-piece dress?
A Yes.
Q And you were wearing also short pants, according to
you?
A Yes.
Q And you were wearing panties under the short pants?
A Yes.
ATTY. REYES:
Your Honor please, may we add for the records that
she refers to a dress made of cotton or silk but
relatively of light material.
COURT:
Make that of record.
COURT:

And which took first, the simultaneous removal of your

shorts and panty or the unbottoning of the pants of your
father?
A He took off my panty and shorts first.
COURT:
How was he able to remove your panty and shorts,
were you not struggling to free yourself?
A I was not able to struggle because he unsheathe a
bolo.
Q What did he do with the bolo
A That if I continue to struggle, he would kill me.
Q When he was holding that bolo, with what hand was
he holding that?
A Right.
Q How about his left hand, what was it doing at that
time?

A His left hand was also holding my other hand and so

when he unsheathe his bolo, I did not continue to
struggle because I know he would kill me.
FISCAL:
And which took place first, the simultaneous removal of
your shorts and panty or the unsheathing of the bolo by
your father?
A The simultaneous taking of the panty and short pant
took place first because I kept on struggling so he
unsheathe his bolo.

A He was only wearing an improvised short pant and

with buttons in front.
Q Was your father actually able to unbutton his
improvised short pants?
A Yes.
Q After he was able to unbutton his improvised short
pants what did he do?
A He lay down on top of me.

COURT:

Q And how about your legs at that time, was it already

spread out?

Actually, the Court gets it from you that he was able to

remove your panty and short pant before he unsheathe
his bolo?

A I tried to hold my both thighs together but then he

opened them.

A Yes, after he took off my panty and short pant that

was the time he threatened me.
Q He was able to remove your panty and short pant
completely out before he threatened you with the use of
a bolo?
A Yes.
COURT:
Go ahead.

Q And your father, according to you, placed himself on

top of you while your legs were already spread out?
A When he was able to lie on top of me, I tried to close
both legs but then he held them open and he lay on top
of me.
Q So that when your father was lying on top of you,
your both legs were already spread
A Yes.
Q How about your dress at that time your father was on
top of you, what was the position of your dress?

FISCAL:
A He rasised it up to my stomach.
Now, after your panty and short pant were already
removed and according to you, your father unsheathe
his bolo and threatened you. When did your father
remove or unbutton his pants, while he was still holding
that bolo?
A He put down the bolo on his side and after which, he
unbuttoned his pants.
Q At that time, what was the kind of pants your father
was wearing?

Q Now, what happened while he was already on top of

you?
A He was doing the push and pull movement of his
buttocks.
Q And at that time, did you not struggle to free yourself?
A When he was doing that act, I kicked him but then he
again got hold of the bolo placed on his side.

Q Then, what did you do after he got hold of the bolo?

a witness for the prosecution. Undoubtedly, the accused is bound by the

testimony of his own witness.

A I cried because he made sexual intercourse with me.

Moreover, there is no doubt that the appellant had a moral ascendancy and influence over
Pacita such that he could easily intimidate and force her to submit to his lustful desires
considering that the appellant was her father and she was only seventeen(17) years old at that
time. The complainant is obviously illiterate and unschooled. Her complaint is signed with a
thumbmark. These, plus the fact that the appellant at the time of the commission of the crime
threatened her with a bolo had practically rendered complainant helpless against the lustful
demands of the appellant. (See People v. Alcid, 135 SCRA 280). The records also show that the
appellant was a fierce man, a cruel husband, and a merciless father such that mother and
daughter had to cower in secretive fear before reporting the rape to the authorities.
The fact that Pacita did not report the previous incidents involving her and the appellant to her
mother has no bearing on the prosecution of the instant case. This case refers to the
commission of the crime of rape on February 5, 1976 by the appellant against Pacita which is a
distinct and separate crime from whatever crimes the appellant might have committed when he
had sexual intercourse with his own daughter Pacita ever since she was thirteen years old. An
intimidated person cowed into submitting to a series of repulsive acts may acquire some
courage as she grows older and finally state that enough is enough, the depraved malefactor
must be punished. The tragedy in this case is that the criminal happens to be her own father.

All told, the Court finds that the guilt of the accused was established beyond
reasonable doubt by the clear and convincing testimony of the complainant,
Pacita Molero. Although at times during her testimony she got confused as
to dates, this is understandable considering that she is illiterate and this did
not in any way affect the vivid portrayal of the heinous act committed on her
by her father.
WHEREFORE, except for the MODIFICATION that the indemnity of P10,000.00 is increased to
TWENTY THOUSAND PESOS (P20,000.00), the decision appealed from is AFFIRMED in all
respects.
SO ORDERED.
Feria (Chairman), Fernan, Alampay and Paras, JJ., concur.

Indeed, we find no reason to depart from the trial court's finding that the appellant is guilty
beyond reasonable doubt of the crime of rape against his own daughter. We agree with the
findings of the trial court that:
As against the vivid and clear testimony of Pacita Molero, the accused had
nothing to offer except his short testimony denying having committed in any
way the crime of Rape against his very own daughter, He denied having
brought his daughter to the Siaton River on February 5, 1976 because he
insisted that he was already confined in the PC Stockade on February 13,
1975, and that he was already incarcerated in the Provincial Jail since
December 5, 1975. However, defense witness Benjamin Alcorcon,
Supervising Prison Guard of the Negros Oriental Provincial Jail clearly told
the Court that the record of the Provincial Jail shows that the accused was
committed to the Provincial Jail only on December 2, 1976 and definitely on
February 5, 1976 he was not yet confined in the Provincial Jail. . . . Pressed
by the Court if he could have any satisfactory explanation why his daughter
would file such a serious charge against him if in truth he had not committed
the act, the accused just matter-of-factly said that 'my daughter Pacita and
her mother agreed to file this case.' (Tsn-Liberata Balasbas March 10, 1982,
page 11 of transcript, page 434 of record).
The defense placed Pacita Molero as its own witness and her testimony as
witness for the defense, that her father had sexual intercourse with her on
February 5, 1976 when he brought her to the Siaton River, has only served
to reinforce her testimony on 'this aspect of the case, when she testified as

G.R. No. L-66038 March 16, 1989

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
VICENTE LUALHATI, defendant-appellant.
The Solicitor General for plaintiff-appellee.
Deogracias de Luna for accused-appellant.

feloniously have carnal knowledge of the complainant Josephine M.

Dimaunahan ... (Emphasis supplied.) (Exh. D, p. 1, Records).
GRIO-AQUINO, J.:
Appellant Vicente Lualhati was charged with Rape by his common-law wife's 11-year-old
daughter, Josephine Dimaunahan, in a complaint (Exhibit D, p. 1, Records) filed in the Municipal
Court of Candelaria, Quezon. After the preliminary investigation, the case was forwarded to the
Court of First Instance of Quezon, where the Provincial Fiscal filed on March 21, 1979 the
following information against the appellant:
That in or about the month of June 1978, at Barangay Masalucot 2, in the
Municipality of Candelaria, Province of Quezon, Philippines, and within the
jurisdiction of this Honorable Court, the said accused, by means of roce (sic)
and intimidation, did then and there wilfully, unlawfully and feloniously have
carnal knowledge of one Josephine M. Dimaunahan, a minor, 11 years of
age, against her will.
That in the commission of the above-described crime, the following
aggravating circumstances were present: relationship, the accused being
the step-father of the offended party, and dwelling.
Contrary to law. (Annex A, p. 6, Rollo.)
As summarized in the People's brief, (p. 92, Rollo), the facts are:
Complainant Josephine Dimaunahan was born on January 7, 1967 (p. 5,
tsn, Sept. 10, 1980). About eight (8) years before the June, 1978 incident in
question, her mother separated from her father and started to live with
appellant Vicente Lualhati without the benefit of marriage (pp. 36-40, tsn,
Jan. 7, 1981; pp. 5-6, tsn, Nov. 19, 1981; pp. 7-12, tsn, Dec. 10, 1981; pp.
3-4, tsn, Jan. 14, 1982). She likewise lived with appellant who supported
her, took care of her studies and treated her like his own daughter (p. 5, tsn,
Sept. 10, 1980; pp. 13-14, tsn, Dec. 10, 1981; pp. 4-5, tsn, Jan. 14, 1982).
Sometime in June, 1978, while complainant's mother was at work, appellant
and complainant were alone in the house in Masalukot II, Candelaria,
Quezon, appellant had sexual intercourse with complainant (pp. 9-15, tsn,
Sept. 10, 1980; pp. 8-14, tsn, Oct. 8, 1980; pp. 11-16, tsn, Oct. 21, 1981; pp.
4-5, tsn, Nov. 3, 1982). It appeared that even prior to June, 1978, appellant
had already several sexual relations with complainant (pp. 8-9, 20-23, 26,
tsn, Jan. 7, 1981; p. 20, tsn, Oct. 20, 1981).
Upon arraignment on November 13, 1979, the accused pleaded not guilty (p. 120 Records).
On January 5, 1980, the accused, through counsel, filed a motion to dismiss (p. 168, Records)
on the ground that the complaint charged more than one offense, namely:
That on or about the month of June, 1978, and for sometime prior and
subsequent thereto, ... the accused Vicente Lualhati wilfully, unlawfully and

On the basis of the Fiscal's Opposition (p. 195, Records) alleging that the accused was being
tried on the Information which charged only one offense committed "in or about the month of
June 1978," the trial judge denied the motion to dismiss (p. 197, Records).
On December 11, 1978, the accused filed another Motion to Dismiss (p. 44, Records), alleging
that he had been pardoned by the offended party, her mother and grandmother. Attached, to the
Motion to Dismiss was the joint affidavit of desistance signed by the offended party, her mother
and grandmother on December 11, 1978 (p. 45, Records).
On December 14, 1978, the offended party executed and filed an affidavit alleging that her father
abandoned her at the age of two (2) years and three (3) months, without providing for her
support and studies, and that the same were provided by her mother and grandmother who, on
the same date, executed a joint affidavit to the same effect (p. 46, Records).
On January 6, 1979, the Prosecuting Fiscal filed an Addendum to the Opposition to the Motion
to Dismiss (p. 63, Records). He alleged therein that the express pardon given the accused was
invalid for the offended party did not have "a will of her own," being merely eleven (11) years old
when the crime was committed; that Rodolfo Dimaunahan, father of the offended party, executed
an affidavit objecting to the pardon given to the accused; and that, as the father, he still
possessed the "patria potestas" over the offended party in spite of his having abandoned her.
In an Order dated March 7, 1979, the trial court denied the motion to dismiss on account of the
insistence of the victim's father to prosecute the accused, absent judicial pronouncement
depriving him of parental authority over the offended party, a child below twelve (12) years old
(p. 73, Records).
On November 9, 1979, a Motion to Quash (p. 117, Records) was filed by the accused. This was
denied on November 15, 1979 by the trial court (p. 126, Records).
After trial, the court a quo, convicted the accused of rape, and imposed upon him the penalty
of reclusion perpetua (p. 549, Records).
Hence, this appeal in which the appellant alleges that the trial court erred:
1. in not holding void the complaint of the offended party charging the
accused with more than one offense;
2. in giving due course to the information filed by the prosecuting fiscal
against the accused, there being no valid complaint against him;
3. in not giving effect to the pardon given to the accused by the offended
party, her mother and grandmother; and
4. in giving the father of the offended party authority to prosecute the
accused, notwithstanding the fact that he had abandoned her while a child

two years old and had not provided for her support and studies. (p. 79,
Rollo.)

In People vs. Miranda (57 Phil. 274), this Court interpreted paragraph 3 of Article 344 as follows:
Paragraph 3 of the legal provision above-quoted prohibits a prosecution for
seduction, abduction,rape, or acts of lasciviousness, except upon a
complaint made by the offended party or her parents, grandparents, or
guardian, nor, in any case, if the offender has been expressly pardoned by
the above-named persons, as the case may be. It does not prohibit the
continuance of a prosecution if the offended party pardons the offender
after the cause has been instituted, nor does it order the dismissal of said
cause. The only act that riding to Article 344 extinguishes the penal action
and the penalty that may have been imposed, is the marriage between the
offender and the offended party. (Emphasis supplied.)

Those assignments of error raise only two issues, namely: (1) whether there was a valid
complaint against the appellant; and (2) whether the pardon given to him by the offended party,
her mother, and grandmother extinguished his criminal liability, in spite of the objection of the
victim's father.
On the first issue, the appellant contends that the complaint is void because it charges at least
three (3) crimes of rape, namely: (1) that which was committed "on or about the month of June,
1978;" (2) that which was committed "sometime prior to said period;" and (3) that which was
committed "subsequent thereto." (p. 168, Records.)
The argument has no merit. Attached to Josephine's complaint was her sworn statement (Exh.
E, p. 2, Records), taken before S/Sgt. Domingo V. Averon Jr. of the 21st CIS Detachment at
Camp Guillermo Nakar Lucena City on August 8, 1978, wherein, she categorically affirmed that
Vicente abused her before the start of classes in June 1978. That affidavit, which may be
considered part of the complaint required by law, cures any ambiguity in the complaint regarding
the number of offenses committed by the accused (People vs. Babasa, 97 SCRA 672).
Discrepancies between the accusation and the complaint as to time of occurrence of the carnal
copulations in rape do not affect any essential right of the accused, where the acts occurred
within the period of time alleged in both writings and the difference noted in other respects was
of a formal, rather than a substantial, character. (Delos Santos vs. People, 69 Phil. 321.)
Furthermore, Section 10, Rule 110 of the 1964 Rules of Court provided:
Sec. 10. Time of the commission of the offense.-It is not necessary to state
in the complaint or information the precise time at which the offense was
committed except when time is a material ingredient of the offense, but the
act may be alleged to have been committed at any time as near to the
actual date at which the offense' was committed as the information or
complaint will permit.

While the Miranda case involved the crime of seduction, the ruling therein is applicable to rape
inasmuch as the prosecution of both offenses is covered by Article 344. The rationale of the law
on the prosecution of private crimes is simple: The law deems it the wiser policy to let the
aggrieved woman and her family decide whether to expose to public view or to heated
controversies in court the vices, faults and disgraceful acts occurring in the family (People vs.
Babasa, 97 SCRA 672). However, when, as in the case at bar, the pardon is given after the filing
of the complaint in court, it comes too late to hide the shameful occurrence from public notice.
Although the accused herein pleaded not guilty when arraigned, he admitted having carnal
knowledge of Josephine many times, even prior to June, 1978. His allegation that he was
"tempted" by her would not mitigate, much less exculpate, him. In statutory rape it is not
necessary to prove that the victim was intimidated or that force was used against her (People vs.
Jones, 137 SCRA 166).
WHEREFORE, the decision of the trial court finding Vicente Lualhati guilty beyond reasonable
doubt of rape and imposing upon him the penalty of reclusion perpetua is affirmed. Pursuant to
present judicial policy, the appellant is ordered to pay the offended party moral damages in the
increased sum of P 25,000.00 and the costs.
SO ORDERED.

With respect to the efficacy of the pardon given to the appellant by his victim, her mother, and
grandmother, Article 344 of the Revised Penal Code provides:
Art. 344. Prosecution of the crimes of adultery, concubinage, seduction,
abduction, rape and acts of lasciviousness. ...
The offenses of seduction, abduction, rape or acts of lasciviousness, shall
not be prosecuted except upon a complaint filed by the offended party or
her parents, grandparents, or guardian, nor, in any case, if the offender has
been expressly pardoned by the above-named persons, as the case may
be.
In cases of seduction, abduction, acts of lasciviousness and rape, the
marriage of the offender with the offended party shall extinguish the criminal
action or remit the penalty already imposed upon him. The provisions of this
paragraph shall also be applicable to the co-principals, accomplices and
accessories after the fact of the abovementioned crimes.

G.R. No. 72994 January 23, 1991

FELICISIMO ROCABERTE, petitioner,

vs.
PEOPLE OF THE PHILIPPINES and HON. ANDRES S. SANTOS, Judge, RTC, Tagbilaran,
Bohol, respondents.
Lilio L. Amora for petitioner.

charge against them and deprives them of the opportunity to defend themselves . . ." (invoking
Peo. v. Openia, 98 Phil. 698).
The motion was denied 4 as was, too, the defendants' motion for reconsideration. 5 In the motion
for reconsideration, the accused drew attention to Section 4, Rule 117 "of the 1985 Rules on
Criminal Procedure," as a remedy that could be alternatively granted, viz.:
Sec. 4. Amendment of complaint or information. If the motion to quash is
based on an alleged defect in the complaint or information which can be
cured by amendment, the court shall order the amendment to be made. (2a)

NARVASA, J.:p
The case at bar treats of the sufficiency of the averment in the information of the time of the
commission of the felony of theft ascribed to petitioner Felicisimo Rocaberte and two (2) others.
The information, filed in the Regional Trial Court of Bohol, City of Tagbilaran, 1 Judge Andres S.
Santos, presiding, reads as follows: 2
The undersigned Assistant Provincial Fiscal hereby accused Felicisimo
Rocaberte, Florencio Ranario and Flaviana Ranario of the crime of Theft,
committed as follows:
That on or about the Period from 1977 to December 28, 1983 at the off
offshore of West Canayaon, municipal of Garcia-Hernandez, province of
Bohol, Philippines . . ., the above-named accused, conspiring, confederating
and helping each other, with intent to gain and without the consent of the
owner, did then and there, willfully, unlawfully and feloniously take, steal and
carry away the following properties, to wit:
One (1) pc. sledge hammer, valued at P136.00
One (1) pc. H beam, valued at 400.00
Two (2) cut abrasive steel plates for cargo
berth cover protector 158.00
Ninety-nine (99) blocks of aluminum, alloy
anodes at P3,750.00 each block P371,250.00
TOTAL P371,944.00
in the total amount of THREE HUNDRED SEVENTY-ONE THOUSAND
NINE HUNDRED FORTY-FOUR PESOS (P371,944.00), Philippine
Currency, belonging to and owned by the Philippine Sinter Corporation, to
the damage and prejudice of the latter in the aforestated amount.
Acts committed contrary to the provisions of Articles 308, 309 of the Revised
Penal Code.
The accused, thru counsel de officio, Atty. Lilio L. Amora, moved to quash the
information, 3 alleging that the statement of the time of commission of the felony charged, "from
1977 to December 1983, . . . a period of seven years," or "about 2,551 days," was fatally
defective: there was "so great a gap as to defy approximation in the commission of one and the
same offense" (citing Peo. v. Reyes, 108 SCRA 203); "the variance is certainly unfair to the
accused for it violates their constitutional right to be informed before the trial of the specific

Felicisimo Rocaberte then instituted in this Court, thru his aforenamed counsel de oficio, the
special civil action ofcertiorari at bar, impugning the denial by respondent Judge Santos of his
motion to quash, or his refusal, at the very least, to direct the amendment of the information
pursuant to Section 4, Rule 117 of the 1985 Rules of Court,supra. He is correct, and will be
granted appropriate relief.
The rules of criminal procedure declare 6 that
. . . A complaint or information is sufficient if it states the name of the
defendant; the designation of the offense by the statute; the acts or
omissions complained of as constituting the offense; the name of the
offended party; the approximate time of the commission of the offense, and
the place wherein the offense was committed.
and as regards the time of the commission of the offense, particularly that: 7
. . . It is not necessary to state in the complaint or information the precise
time at which the offense was committed except when time is a material
ingredient of the offense, but the act may be alleged to have been
committed at any time as near to the actual date at which the offense was
committed as the information or complaint will permit.
In line with this last mentioned rule, a variance of a few months between the time set out in the
indictment and that established by the evidence during the trial has been held not to constitute
an error so serious as to warrant reversal of a conviction solely on that score. Hence, where the
information sets the date of commission of a robbery at March 25, 1900, evidence was allowed
to show that the offense was actually perpetrated on the 5th or 6th of March; and an amendment
of an information so as to change the year therein stated to that following it, was allowed it
appearing that the alteration impaired none of the defendant's rights. 8
Where, however, there was a variance of several years between the time stated in the
information, 1947, and the proof of its actual commission adduced at the trial, 1952, the
dismissal of the case by the Trial Court was sustained by this Court, since to allow amendment
of the indictment to conform to the evidence would be violative of defendant's constitutional right
to be informed of the nature and cause of the accusation against him. 9
Again, the statement of the time of the commission of the offense which is so general as to span
a number of years, i.e., "between October, 1910 to August, 1912," has been held to be fatally
defective because it deprives the accused an opportunity to prepare his defense. 10

A defect in the averment as to the time of the commission of the crime charged is not, however,
a ground for a motion to quash under Rule 116 of the Rules of Court. Even if it were, a motion
for quashal on that account will be denied since the defect is one that can be cured by
amendment; instead, the court shall order the amendment to be made by stating the time with
particularity. 11
The remedy against an indictment that fails to allege the time of the commission of the offense
with sufficient definiteness is a motion for a bill of particulars, provided for in Section 6, Rule 116
of the Rules of Court of 1964.12
Bill of particulars. Defendant may, at the time of or before arraignment,
move for or demand a more definite statement or a bill of particulars of any
matter which is not averred with sufficient definiteness or particularity to
enable him properly to plead or prepare for trial. The motion shall point out
the defects complained of and the details desired.
From all that has been said, the conclusion should be clear. The information against petitioner
Rocaberte is indeed seriously defective. It places on him and his co-accused the unfair and
unreasonable burden of having to recall their activities over a span of more than 2,500 days. It is
a burden nobody should be made to bear. The public prosecutor must make more definite and
particular the time of the commission of the crime of theft attributed to Rocaberte and his codefendants. If he cannot, the prosecution cannot be maintained, the case must be dismissed.
WHEREFORE, the petition is GRANTED, and the writ of certiorari prayed for is ISSUED,
ANNULLING AND SETTING ASIDE the challenged Orders of respondent Judge dated August
12, 1985 and September 10, 1985 in Criminal Case No. 3851, and DIRECTING the amendment
of the information in said case by the prosecution within such time as the respondent Judge may
deem proper, failing which the criminal prosecution against the petitioner and his co-defendants
shall be dismissed.
SO ORDERED.
Cruz, Gancayco, Grio-Aquino and Medialdea, JJ., concur.

G.R. No. 142556

February 5, 2003

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
JESUS PEREZ y SEBUNGA, accused-appellant.
DECISION
PER CURIAM:
For automatic review is the Decision1 dated October 26, 1999 of the Regional Trial Court of Iba,
Zambales, Branch 69, in Criminal Case No. RTC-2116-I, finding appellant Jesus S. Perez
("appellant" for brevity), guilty of raping Mayia P. Ponseca ("Mayia" for brevity) and imposing on
appellant the death penalty.
On January 22, 1997, the Second Assistant Provincial Prosecutor2 of Zambales filed an
Information3 charging appellant with the crime of rape "penalized under Article 335 of the
Revised Penal Code in relation to Section 5 (b), Article III of Republic Act No. 7610," committed
as follows:
"That on or about the 17th day of January, 1997 at 12:00 noon at Sitio Baco, Brgy. Macarang, in
the Municipality of Palauig, Province of Zambales, Philippines, and within the jurisdiction of this
Honorable Court, the said accused, with lewd design and by means of coercion, inducement and
other consideration, did then and there, wilfully (sic), unlawfully and feloniously have sexual
intercourse with one Mayia P. Ponseca, a minor of 6 years old, without her consent and against
her will, to the damage and prejudice of the latter."
Upon arraignment, appellant, assisted by counsel de officio Atty. Genaro N. Montefalcon,
pleaded not guilty to the offense charged.4 Subsequently, the trial court allowed the withdrawal of
Atty. Montefalcon as counsel for health reasons. The trial court appointed Atty. Roberto Blanco
as appellants counsel de oficio.5
At the pre-trial, the prosecution and defense stipulated on the following facts:

Thereafter, trial ensued. The prosecution presented the following witnesses: the victim, Mayia
Ponseca; the victims mother, Hermie Ponseca; the victims father, Osias Ponseca; Virginia
Espejo Giron; and Dr. Editha dela Cruz Divino. On the other hand, the defense presented
appellant and his employer, Bartolome Tolentino.
The Office of the Solicitor General ("OSG" for brevity) summarized the prosecutions version of
the incident in the appellees brief, to wit:
"On January 17, 1997, about noontime, in Sitio Baco, Barangay Macarang, Palauig, Zambales,
six-year old Mayia Ponseca was walking along Sulok on her way to her house in Sitio Camiling
when appellant Jesus Sebunga Perez approached her (pp. 7-8, TSN, December 15, 1998).
Appellant introduced himself as "Johnny" and immediately afterwards, strangled her neck and
boxed her abdomen (p. 10, TSN, December 15, 1998). Still in shock, Mayia fell down (id.). At
that point, a dog arrived and barked at them.
Appellant then proceeded to lower his black denim pants while simultaneously removing Mayias
panty. He then inserted his penis inside Mayias vagina (p. 11, id.). Mayia felt excruciating pain in
her private parts (sic) but was not able to repel her aggressor whose strength and weight totally
engulfed her. Her only recourse was to cry while her young body was being ravished (p. 13, id.).
After satisfying his beastly desires, appellant raised his pants and ran away (p. 14, id.).
Notwithstanding that her vagina was bleeding profusely and her dress now covered with her own
blood, Mayia managed to stand up and seek help. She ran to the house of Virginia Giron, which
was only fifty (50) meters away from the scene of the crime. In fact, Giron was outside when she
heard her dog barking (apparently, it was the same dog barking at appellant while he was
consummating his lust on Mayia, pp. 2-3, TSN, January 12, 1999; p. 11, TSN, December 15,
1998). Looking at the direction of the noise, she saw a confused Mayia approaching her with
blood dripping from her private parts and thighs. When Giron asked Mayia what happened, the
latter shouted "ni-rape ako, ni-rape ako" (p. 4, TSN, January 4, 1999). Giron then summoned her
husband and other companions to look for Mayias attacker but was unable to find him. Giron
then proceeded to Hermie Ponseca and Osias Ponseca, Mayias parents, to inform them of what
happened (p. 5, TSN, January 5, 1999; p. 2, TSN, January 19, 1999).
When her parents asked Mayia if she knew her assailant, the latter answered the name
"Johnny." (id.) The couple brought their daughter to the President Ramon Magsaysay Memorial
Hospital for medical examination (p. 2, TSN, February 24, 1999). She was examined by Dra.
Editha Dela Cruz Divino, who issued a medico-legal certificate dated January 23, 1997 stating
the following:

"1. The identity of the accused;

2. The accused was at the time of the incident in the vicinity thereof;
3. The victim in this case, Mayia P. Ponseca, was born on 23 May 1990 as evidenced
by her birth certificate;
4. That after the incident, the child was subjected to a medico-legal examination to
which a medico-legal certificate was issued by Dr. Editha Divino.
The prosecution marked in evidence the birth certificate of the victim Mayia O. Ponseca as
Exhibit A, and the medico-legal certificate issued by Dr. Editha Divino as Exhibit B."6

a. Bleeding of genitalia coming from median laceration at the vaginal floor around four (4)
centimeters in size. Possible cause, a fall and then hitting a sharp object and also an alleged
sexual assault (p. 4, TSN, February 24, 1999).
b. Genitalia had hymenal lacerations at 3, 6, 9 and 12 oclock positions.
(pp. 4-6 id.)
Because of the extent of the damage on her genitals, Mayia undertook an IV sedation operation
to repair her lacerations (p. 6, id.) During her confinement at the hospital, the Ponseca couple
reported the incident to the Palauig PNP Police Station and recounted their daughters narration

including the name of the culprit as "Johnny" who, according to their neighbors, was a worker at
the fishpond of Bartolome Tolentino (pp. 11-12, TSN, January 5, 1999). Police operatives then
proceeded to the said fishpond and arrested appellant. After her discharge from the hospital,
Mayia learned that appellant was already apprehended (pp. 3-8, TSN, January 5, 1999). In the
police station, she was able to positively identify the appellant as the person who sexually
assaulted her (p. 18, TSN, December 15, 1998)."7
Appellant denied raping Mayia. Appellant testified that on the date of the alleged rape incident,
he was working at a fishpond at Macarang, Zambales. He heard of the rape of a young girl from
his manager, Bartolome Tolentino ("Tolentino" for brevity).8 Appellant further testified that on
January 25, 1997, policemen went to the fishpond where he worked. The policemen arrested
appellant and brought him to the police station at Palauig. Later, the policemen took him to the
municipal jail of Palauig.
On cross-examination, appellant testified that his nickname is not "Johnny" but "Jessie." 9 He
testified that on January 17, 1997, at around 12 oclock noon, he left the fishpond and walked
home to Barangay Alwa which was about thirty meters from the fishpond. 10
The defense formally offered the testimony of witness Tolentino to prove that appellant was
employed as caretaker of Tolentinos fishpond for almost two years before the alleged rape
incident. Appellant was purportedly of good moral character while employed as a fishpond
caretaker. The prosecution admitted the offer of testimony. Hence, the trial court dispensed with
the testimony of Tolentino in open court.11

Appellants contention is untenable.

As a rule, leading questions are not allowed. However, the rules provide for exceptions when the
witness is a child of tender years13 as it is usually difficult for such child to state facts without
prompting or suggestion.14 Leading questions are necessary to coax the truth out of their
reluctant lips.15 In the case at bar, the trial court was justified in allowing leading questions to
Mayia as she was evidently young and unlettered, making the recall of events difficult, if not
uncertain.16 As explained in People v. Rodito Dagamos:17
"The trend in procedural law is to give wide latitude to the courts in exercising control over the
questioning of a child witness. The reasons are spelled out in our Rule on Examination of a Child
Witness, which took effect on December 15, 2000, namely, (1) to facilitate the ascertainment of
the truth, (2) to ensure that questions are stated in a form appropriate to the developmental level
of the child, (3) to protect children from harassment or undue embarrassment, and (4) avoid
waste of time. Leading questions in all stages of examination of a child are allowed if the same
will further the interests of justice."
The Court has repeatedly stated that it is highly inconceivable for a child of tender age,
inexperienced in the ways of the world, to fabricate a charge of defloration, undergo a medical
examination of her private part, subject herself to public trial, and tarnish her familys honor and
reputation, unless she was motivated by a strong desire to seek justice for the wrong committed
against her.18
Mayia recounted her harrowing experience, thus:

After trial, the court a quo rendered judgment12 on October 26, 1999, the dispositive portion of
which reads:
"WHEREFORE, foregoing considered, accused Jesus Perez y Sabung (SIC) is found GUILTY
beyond reasonable doubt of the crime of Statutore Rape, defined and penalized under Article
335 of the Revised Penal Code with the qualifying circumstance that the victim was only 6 years
old at the time of the commission of the offense, in relation to Section 5 (b), Article III, Republic
Act 7610, and is sentenced to suffer the penalty of DEATH. Jesus Perez is directed to pay to the
private complainant the amount of Seventy-Five Thousand Pesos (P75,000.00) as and by way
of civil indemnity and Fifty Thousand (P50,000.00) as and by way of moral damages."
Hence, this automatic review.
In his brief, appellant raises the following lone assignment of error:
"THE COURT A QUO GRAVELY ERRED IN FINDING THAT THE GUILT OF THE APPELLANT
HAS BEEN PROVEN BEYOND REASONABLE DOUBT."
Appellant contends that his identification in open court by Mayia was highly
irregular.l^vvphi1.net Appellant points out that the prosecutor had already identified him as the
man wearing an orange t-shirt when the prosecutor asked Mayia to identify her alleged rapist.
Appellant stresses that when Mayia identified him in open court, she referred to him as a man
named "Johnny" and did not give any description or any identifying mark. Moreover, appellant
claims he was alone in the cell when Mayia identified him after the police arrested him. Appellant
bewails that the identification was not done with the usual police line-up.

"Q What time was this when Johnny introduced himself to you?
A I do not recall, mam.
Q Was it in the morning, noontime or in the afternoon or in the evening?
A Noontime, mam.
Q So, when Johnny said, Ako si Johnny, what did you do?
A None, mam.
Q After that when Johnny said, Ako si Johnny, what happened?
A He strangled (sinakal) me.
Q Were there persons around in the place when Johnny strangled you?
A None, mam.
Q So, what did he do then after he strangled you?

A He boxed me on my stomach, mam.

A Yes, mam.

Q When he boxed you on your stomach, what happened to you?

Q What was your clothes at that time?

A I was shocked, mam.

A A dress, mam.

Q Did you fall down?

Q When his penis entered your vagina Mayia, did he remove your panty?

A Before that, I was already lying down, so when he boxed me, I was shocked.

A Yes, mam."19

Q You said that you were already lying down. Who made you lie down?

The identity of appellant as the rapist has been established by the clear, convincing
and straightforward testimony of Mayia. During the trial, she testified as follows:

A The person, mam.

"Q Mayia, there is a man sitting wearing orange t-shirt, do you know this man?
Q Why were you shocked, Mayia?
A Yes, mam.
A Because he strangled me and boxed me.
Q Do you know his name?
Q After he boxed you on your abdomen, what happened? What else did he do to you?
A Yes, mam.
A There was a dog that arrived in the place and it barked at us. Then Johnny moved in
a hurry by penetrating my private part and after he dressing (SIC) me, he ran away.
Q You said that Johnny penetrated your private part. With what instrument did he use
in penetrating your private part?

Q What is his name?

A Johnny, mam.
Q Why do you know him?

A His penis, mam.

A Because he introduced himself to me.
Q What was he wearing at that time?
Q Where did he introduced himself to you?
A A black denim, mam.
A At Sulok, mam.
Q When he used his penis in entering your private part, did he remove his pants?
Q Sulok is a place?
A No, mam.
A Yes, mam.
Q What did he do with his pants?
Q Do you have any companion when this man introduced himself to you?
A He brought out his penis, mam.
A None, mam.
Q You mean to say Mayia, he lowered his pants?
Q How did he introduce himself to you?
A Yes, mam.
Q What about you, were you wearing any panty?

A The man introduced himself to me by saying, Kilala mo ba ako? Hindi po. Ako si
Johnny."20

The trial court further asked Mayia:

herein offended party, to brazenly impute a crime so serious as rape to any man if it were not
true."

"Q You were talking of a certain Johnny. s this Johnny in court now?

A Yes, sir.

In his Reply Brief, appellant contends that even assuming that the guilt of appellant has been
proven beyond reasonable doubt, the trial court erred in imposing the death penalty. Appellant
maintains that the death penalty cannot be imposed on him for failure of the prosecution to
prove Mayias age by independent evidence. Appellant points out that while Mayias birth
certificate was duly marked during the pre-trial, it was not presented and identified during the
trial. Appellant asserts that Mayias minority must not only be specifically alleged in the
Information but must also be established beyond reasonable doubt during the trial.1awphi1.nt

Q Point to him.

Appellants argument deserves scant consideration.

A (Witness pointing to the person sitting at the accused bench and when asked of his
name answered Jesus Perez)

At the pre-trial, the parties mutually worked out a satisfactory disposition of the criminal case.
Appellant, assisted by counsel, signed a Pre-Trial Agreement28 which, as incorporated in the
Pre-Trial Order, stated that:

A Yes, sir.
Q Can you point to him?

Q Is this Johnny whom you point to the person whom you saw in that Sulok?
A Yes, sir."

"x x x.

21

Mayias simple, positive and straightforward recounting on the witness stand of her harrowing
experience lends credence to her accusation. Her tender age belies any allegation that her
accusation was a mere invention impelled by some ill-motive. As the Court has stressed in
numerous cases, when a woman or a child victim says that she has been raped, she in effect
says all that is necessary to show that rape was indeed committed.22
Mayia had a clear sight of appellants face since the rape occurred at "noontime." 23 Her proximity
to appellant during the sexual assault leaves no doubt as to the correctness of her identification
for a man and woman cannot be physically closer to each other than during the sexual
act.24 Thus, even if Mayia did not give the identifying marks of appellant, her positive
identification of appellant sufficed to establish clearly the identity of her sexual assailant.
Appellants claim that the police improperly suggested to Mayia to identify appellant is without
basis. True, Mayia did not identify appellant in a police line-up when Mayia identified appellant in
his cell. However, appellant, in his testimony admitted that he had two other companions in his
cell.25 Moreover, the Court has held that there is no law requiring a police line-up as essential to
a proper identification. Even without a police line-up, there could still be a proper identification as
long as the police did not suggest such identification to the witnesses. 26 The records are bereft of
any indication that the police suggested to Mayia to identify appellant as the rapist.
Mayias identification in open court of appellant as her rapist dispels any doubt as to the proper
identification of appellant. Mayia positively identified and pointed to appellant as her rapist. We
are satisfied that her testimony, by itself, is sufficient identification of her rapist. As held
in People v. Marquez:27
"xxx. Indeed, the revelation of an innocent child whose chastity was abused deserves full credit,
as the willingness of complainant to face police investigation and to undergo the trouble and
humiliation of a public trial is eloquent testimony of the truth of her complaint. Stated differently, it
is most improbable for a five-year old girl of tender years, so innocent and so guileless as the

3. The victim in this case, Mayia P. Ponseca was born on 23 May 1990 as evidenced by her
birth certificate;
x x x." (Emphasis supplied)
During the pre-trial, the prosecution marked in evidence Mayias birth certificate as Exhibit
"A".29 The prosecution submitted its Offer of Evidence30 which included Exhibit "A", a certified
true copy of Mayias birth certificate. The trial court admitted Exhibit "A"31 without any objection
from the defense.
The purpose of pre-trial is to consider the following: (a) plea bargaining; (b) stipulation of facts;
(c) marking for identification of evidence of the parties; (d) waiver of objections to admissibility of
evidence; (e) modification of the order of trial if the accused admits the charge but interposes
lawful defenses; and (f) such matters as will promote a fair and expeditious trial of the criminal
and civil aspects of the case.32 Facts stipulated and evidence admitted during pre-trial bind the
parties. Section 4, Rule 118 of the Revised Rules of Criminal Procedure 33 provides:
"SEC. 4. Pre-trial order. - After the pre-trial conference, the court shall issue an order reciting the
actions taken, the facts stipulated, and evidence marked. Such order shall bind the parties,
limit the trial to matters not disposed of, and control the course of the action during the trial,
unless modified by the court to prevent manifest injustice." (Emphasis supplied)
Moreover, Mayia herself testified in open court as to her age. During the trial on December 15,
1998, which was about twenty-three (23) months after the rape incident occurred on January 17,
1997, Mayia testified on cross-examination that she was "8 years old last May 23." 34 Thus, by
deduction, since Mayia was born on May 23, 1990 as shown in her birth certificate, she was
about six (6) years and seven (7) months old on January 17, 1997, the day the crime took place.
We rule that the prosecution has indisputably proven that Mayia was below seven years old at
the time appellant raped her.1a\^/phi1.net

Finally, the trial court was correct in imposing the death penalty on appellant. Under Article
33535 of the Revised Penal Code, as amended by Section 11 of Republic Act No. 7659,36 the
death penalty shall be imposed if the crime of rape is committed against a child below seven (7)
years old. Mayia was six (6) years and seven (7) months old when appellant raped her.
If rape is qualified by any of the circumstances37 warranting the imposition of the death penalty,
the civil indemnity for actual or compensatory damages is mandatory.38 Following prevailing
jurisprudence, the civil indemnity is fixed at P75,000.00. In addition, moral damages of
P50,000.00 should also be awarded to the rape victim without need for pleading or proving it. 39
WHEREFORE, the Decision dated October 26, 1999 of the Regional Trial Court of Iba,
Zambales, Branch 69, in Criminal Case No. RTC-2116-I, finding appellant Jesus S. Perez guilty
beyond reasonable doubt of the crime of qualified rape, sentencing him to suffer the death
penalty,40 and ordering him to pay the victim Mayia P. Ponseca the amount of P75,000.00 as civil
indemnity and P50,000.00 as moral damages, is AFFIRMED in toto.
In accordance with Article 83 of the Revised Penal Code, as amended by Section 25 of the
Republic Act No. 7659, upon the finality of this Decision, let the records of this case be forthwith
forwarded to the Office of the President of the Philippines for possible exercise of the pardoning
power.
DOJ-NPS MANUAL, PART III, SECS. 23-24
SEC. 23. Concept of prejudicial question.- A prejudicial question is one the resolution of which is
a logical antecedent of the issue involved in a case and the cognizance of which pertains to
another tribunal. It is based on a fact distinct and separate from the crime charged but so
intimately connected with it that it determines the guilt or innocence of the accused. To suspend
the criminal action, it must not only appear that said case involves facts intimately related to
those upon which the criminal prosecution would be based but also that in the resolution of the
issue or issues raised in the civil case, the guilt or innocence of the accused would necessarily
be determined.

On October 21, 1985, respondent contracted a first marriage with one Maria Dulce B. Javier.
Without said marriage having been annulled, nullified or terminated, the same respondent
contracted a second marriage with petitioner Imelda Marbella-Bobis on January 25, 1996 and
allegedly a third marriage with a certain Julia Sally Hernandez. Based on petitioner's complaintaffidavit, an information for bigamy was filed against respondent on February 25, 1998, which
was docketed as Criminal Case No. Q98-75611 of the Regional Trial Court, Branch 226, Quezon
City. Sometime thereafter, respondent initiated a civil action for the judicial declaration of
absolute nullity of his first marriage on the ground that it was celebrated without a marriage
license. Respondent then filed a motion to suspend the proceedings in the criminal case for
bigamy invoking the pending civil case for nullity of the first marriage as a prejudicial question to
the criminal case. The trial judge granted the motion to suspend the criminal case in an Order
dated December 29, 1998.1 Petitioner filed a motion for reconsideration, but the same was
denied.
Hence, this petition for review on certiorari. Petitioner argues that respondent should have first
obtained a judicial declaration of nullity of his first marriage before entering into the second
marriage, inasmuch as the alleged prejudicial question justifying suspension of the bigamy case
is no longer a legal truism pursuant to Article 40 of the Family Code.2
The issue to be resolved in this petition is whether the subsequent filing of a civil action for
declaration of nullity of a previous marriage constitutes a prejudicial question to a criminal case
for bigamy.
A prejudicial question is one which arises in a case the resolution of which is a logical
antecedent of the issue involved therein.3It is a question based on a fact distinct and separate
from the crime but so intimately connected with it that it determines the guilt or innocence of the
accused.4 It must appear not only that the civil case involves facts upon which the criminal action
is based, but also that the resolution of the issues raised in the civil action would necessarily be
determinative of the criminal case.5 Consequently, the defense must involve an issue similar or
intimately related to the same issue raised in the criminal action and its resolution determinative
of whether or not the latter action may proceed.6 Its two essential elements are:7

SEC. 24. Elements of prejudicial question. - The essential elements of a prejudicial question are:

(a) the civil action involves an issue similar or intimately related to the issue raised in
the criminal action; and

a)
the civil action involves an issue similar or intimately related to the issue raised in the
criminal action;

(b) the resolution of such issue determines whether or not the criminal action may
proceed.

b)
the resolution of such issue determines whether or not the criminal action may
proceed ; and
c)

the cognizance of the said issue pertains to another tribunal.

G.R. No. 138509

July 31, 2000

IMELDA MARBELLA-BOBIS, petitioner,

vs.
ISAGANI D. BOBIS, respondent.
YNARES-SANTIAGO, J.:

A prejudicial question does not conclusively resolve the guilt or innocence of the accused but
simply tests the sufficiency of the allegations in the information in order to sustain the further
prosecution of the criminal case. A party who raises a prejudicial question is deemed to have
hypothetically admitted that all the essential elements of a crime have been adequately alleged
in the information, considering that the prosecution has not yet presented a single evidence on
the indictment or may not yet have rested its case. A challenge of the allegations in the
information on the ground of prejudicial question is in effect a question on the merits of the
criminal charge through a non-criminal suit.
Article 40 of the Family Code, which was effective at the time of celebration of the second
marriage, requires a prior judicial declaration of nullity of a previous marriage before a party may
remarry. The clear implication of this is that it is not for the parties, particularly the accused, to
determine the validity or invalidity of the marriage.8Whether or not the first marriage was void for

lack of a license is a matter of defense because there is still no judicial declaration of its nullity at
the time the second marriage was contracted. It should be remembered that bigamy can
successfully be prosecuted provided all its elements concur two of which are a previous
marriage and a subsequent marriage which would have been valid had it not been for the
existence at the material time of the first marriage.9
In the case at bar, respondent's clear intent is to obtain a judicial declaration of nullity of his first
marriage and thereafter to invoke that very same judgment to prevent his prosecution for
bigamy. He cannot have his cake and eat it too. Otherwise, all that an adventurous bigamist has
to do is to disregard Article 40 of the Family Code, contract a subsequent marriage and escape
a bigamy charge by simply claiming that the first marriage is void and that the subsequent
marriage is equally void for lack of a prior judicial declaration of nullity of the first. A party may
even enter into a marriage aware of the absence of a requisite - usually the marriage license and thereafter contract a subsequent marriage without obtaining a declaration of nullity of the
first on the assumption that the first marriage is void. Such scenario would render nugatory the
provisions on bigamy. As succinctly held in Landicho v. Relova:10
(P)arties to a marriage should not be permitted to judge for themselves its nullity, only
competent courts having such authority. Prior to such declaration of nullity, the validity
of the first marriage is beyond question. A party who contracts a second marriage then
assumes the risk of being prosecuted for bigamy.
Respondent alleges that the first marriage in the case before us was void for lack of a marriage
license. Petitioner, on the other hand, argues that her marriage to respondent was exempt from
the requirement of a marriage license. More specifically, petitioner claims that prior to their
marriage, they had already attained the age of majority and had been living together as husband
and wife for at least five years.11 The issue in this case is limited to the existence of a prejudicial
question, and we are not called upon to resolve the validity of the first marriage. Be that as it
may, suffice it to state that the Civil Code, under which the first marriage was celebrated,
provides that "every intendment of law or fact leans toward the validity of marriage, the
indissolubility of the marriage bonds."12 [] Hence, parties should not be permitted to judge for
themselves the nullity of their marriage, for the same must be submitted to the determination of
competent courts. Only when the nullity of the marriage is so declared can it be held as void,
and so long as there is no such declaration the presumption is that the marriage exists. 13 No
matter how obvious, manifest or patent the absence of an element is, the intervention of the
courts must always be resorted to. That is why Article 40 of the Family Code requires a "final
judgment," which only the courts can render. Thus, as ruled in Landicho v. Relova,14 he who
contracts a second marriage before the judicial declaration of nullity of the first marriage
assumes the risk of being prosecuted for bigamy, and in such a case the criminal case may not
be suspended on the ground of the pendency of a civil case for declaration of nullity. In a recent
case for concubinage, we held that the pendency of a civil case for declaration of nullity of
marriage is not a prejudicial question.15 This ruling applies here by analogy since both crimes
presuppose the subsistence of a marriage.
Ignorance of the existence of Article 40 of the Family Code cannot even be successfully invoked
as an excuse.16The contracting of a marriage knowing that the requirements of the law have not
been complied with or that the marriage is in disregard of a legal impediment is an act penalized
by the Revised Penal Code.17 The legality of a marriage is a matter of law and every person is
presumed to know the law. As respondent did not obtain the judicial declaration of nullity when
he entered into the second marriage, why should he be allowed to belatedly obtain that judicial
declaration in order to delay his criminal prosecution and subsequently defeat it by his own

disobedience of the law? If he wants to raise the nullity of the previous marriage, he can do it as
a matter of defense when he presents his evidence during the trial proper in the criminal case.
The burden of proof to show the dissolution of the first marriage before the second marriage was
contracted rests upon the defense,18 but that is a matter that can be raised in the trial of the
bigamy case. In the meantime, it should be stressed that not every defense raised in the civil
action may be used as a prejudicial question to obtain the suspension of the criminal action. The
lower court, therefore, erred in suspending the criminal case for bigamy. Moreover, when
respondent was indicted for bigamy, the fact that he entered into two marriage ceremonies
appeared indubitable. It was only after he was sued by petitioner for bigamy that he thought of
seeking a judicial declaration of nullity of his first marriage. The obvious intent, therefore, is that
respondent merely resorted to the civil action as a potential prejudicial question for the purpose
of frustrating or delaying his criminal prosecution. As has been discussed above, this cannot be
done.1awphi1
In the light of Article 40 of the Family Code, respondent, without first having obtained the judicial
declaration of nullity of the first marriage, can not be said to have validly entered into the second
marriage. Per current jurisprudence, a marriage though void still needs a judicial declaration of
such fact before any party can marry again; otherwise the second marriage will also be
void.19 The reason is that, without a judicial declaration of its nullity, the first marriage is
presumed to be subsisting. In the case at bar, respondent was for all legal intents and purposes
regarded as a married man at the time he contracted his second marriage with
petitioner.20 Against this legal backdrop, any decision in the civil action for nullity would not erase
the fact that respondent entered into a second marriage during the subsistence of a first
marriage. Thus, a decision in the civil case is not essential to the determination of the criminal
charge. It is, therefore, not a prejudicial question. As stated above, respondent cannot be
permitted to use his own malfeasance to defeat the criminal action against him.21
WHEREFORE, the petition is GRANTED. The order dated December 29, 1998 of the Regional
Trial Court, Branch 226 of Quezon City is REVERSED and SET ASIDE and the trial court is
ordered to IMMEDIATELY proceed with Criminal Case No. Q98-75611.
SO ORDERED.
Davide, Jr., C.J., (Chairman), Puno, Kapunan, and Pardo, JJ., concur.

Herein petitioner Ark Travel Express, Inc. (Ark Travel for brevity) filed with the City Prosecutor of
Makati a criminal complaint for False Testimony in a Civil Case under Article 182 of the Revised
Penal Code against herein private respondents Violeta Baguio and Lorelei Ira. In a resolution
dated November 20, 1996, the City Prosecutor found probable cause to indict private
respondents for violation of said law and accordingly filed the respective Informations against
each of them before the MTC, docketed as Criminal Cases Nos. 200894 and 200895, which,
except for the names of the accused, uniformly read as follows:
The undersigned 2nd Assistant Prosecutor accuses VIOLETA S. BAGUIO of the crime of
Violation of Article 182 of the Revised Penal Code (False Testimony), committed as follows:
That on or about the 19th day of February, 1996, in the City of Makati, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused, did then and there willfully,
unlawfully and feloniously give false testimony upon a material fact in Civil Case No. 95-1542,
relative to a complaint for Collection of sum of money, torts and damages filed by Ark Travel
Express, Inc. (Ark Inc. for short) against New Filipino Maritime Agencies, Inc. (NFMA, Inc. for
short) in the following manner, to wit: during the trial of the aforesaid civil case on aforestated
date before Branch 137 of the Regional Trial Court of Makati City, Metro Manila, in which one of
the principal issues was whether or not payment of the claim of ARK, Inc. has been made by
NFMA, Inc., the said accused while testifying for NFMA, Inc., with malicious intent, did, then and
there willfully, unlawfully and feloniously and knowingly testified on direct testimony, by way of a
sworn statement, and while under oath on the witness stand, that the claims of ARK, Inc.
supported by a statements of accounts (Exhibit "E" to "GG") sent to and received by defendantcorporation NFMA, Inc. is baseless and/or been paid, which testimony as accused very well
knew and ought to know, by reason of accuseds position as cashier, was false inasmuch as the
claim based on the statement of accounts of ARK, Inc. (Exhibits "E" to "GG" are, in truth and in
fact, valid, legal and unpaid accounts of NFMA, Inc. with ARK Travel Inc., herein represented by
private complainant MA. PAZ ALBERTO, to the damage and prejudice of the latter.
CONTRARY TO LAW.2

G.R. No. 137010

August 29, 2003

ARK TRAVEL EXPRESS, INC., Petitioner,

vs.
The Presiding Judge of the Regional Trial Court of Makati, Branch 150, HON. ZEUS
ABROGAR, VIOLETA BAGUIO and LORELEI IRA, Respondents.
DECISION
AUSTRIA-MARTINEZ, J.:
Before us is a petition for certiorari under Rule 65 of the Rules of Court seeking to nullify the
Order dated October 2, 1998 issued by the Regional Trial Court (RTC) of Makati City (Branch
150) in Civil Case No. 98-21251 which considered Criminal Cases Nos. 200894 and 200895
pending before the Metropolitan Trial Court (MTC) of Makati (Branch 67) as withdrawn; and, the
Order dated November 23, 1998 which denied petitioners Motion for Reconsideration.
The facts of the case:

Private respondents filed a petition for review of the City Prosecutors resolution dated
November 20, 1996 with the Department of Justice (DOJ). In a resolution dated March 9,
1998,3 Chief State Prosecutor Jovencito P. Zuo reversed the City Prosecutors resolution dated
November 20, 1996. The prosecution office of Makati then filed with the MTC a Motion to
Withdraw Information.4
However, on May 15, 1998, Ark Travel filed an "Urgent Petition for Automatic Review" with the
DOJ. In a letter dated May 27, 1998, Secretary Silvestre H. Bello III resolved to treat the urgent
petition as a motion for reconsideration, reversed its resolution dated March 9, 1998 and
directed the City Prosecutor to proceed with the prosecution of Criminal Cases Nos. 200894 and
200895.5 For this reason, the MTC issued an Order dated June 10, 1998, denying the aforesaid
Motion to Withdraw Information filed by the prosecution, to wit:
It appearing that the Department of Justice had reconsidered its previous ruling directing the City
Prosecutor of Makati City to withdraw the information filed against the accused in the aboveentitled cases, the Motion to Withdraw Information filed by the prosecution is hereby DENIED.
Set these cases therefore for arraignment on July 30, 1998 at 8:30 in the morning.
SO ORDERED.6

In the meanwhile, private respondents Baguio and Ira filed a Motion for Reconsideration 7 of the
May 27, 1998 resolution of then Secretary Bello III, alleging that: (1) the March 9, 1998
resolution of Chief State Prosecutor Zuo finding no probable cause to indict them has become
final and executory because the Urgent Petition for Automatic Review was filed way beyond the
10-day reglementary period; and (2) the said resolution of May 27, 1998 did not reverse the
finding of the March 9, 1998 resolution that respondents did not really act with malice/criminal
intent because the resolution of the Secretary merely stated that there was false testimony.
DOJ Undersecretary Jesus A. Zozobrado, Jr., signing "For the Secretary", granted the Motion for
Reconsideration in a resolution dated June 26, 1998, disposing thus:
WHEREFORE, our resolution dated May 27, 1998 is reconsidered and set aside; and
consequently, our resolution dated March 9, 1998 is reinstated. You are accordingly, directed to
immediately cause, with leave of court, the withdrawal of the informations for false testimony in a
civil case filed against Violeta S. Baguio and Lorelei Ira. Report to us the action taken within ten
(10) days from receipt hereof.
Consequently, private respondents filed with the MTC a Motion for Reconsideration of its June
10, 1998 Order alleging that there is no longer any obstacle, legal or otherwise, to the granting
of the Motion to Withdraw Information previously filed by the prosecution. The MTC denied the
motion in an Order, dated July 21, 1998, which we quote verbatim, as follows:
Submitted for resolution is a Motion for Reconsideration filed by the accused through counsel
which seeks a reversal of the courts order denying the Motion to Withdraw filed by the
prosecution.
In the Crespo Mogul case, it was held by the Supreme Court that once an information is filed in
court, such filing sets in motion the criminal action against the accused before the court, and any
motion to dismiss or withdraw information is always addressed to the discretion of the court. The
denial or grant of any motion is done by the court not out of subservience to the secretary of
justice but in faithful exercise of its judicial prerogative. This is the ruling in the case of Robert Jr.
et al. vs. CH et al. vs. CA G.R. No. 113930 promulgated on March 5, 1996.

As aptly stated in Ledesma vs. CA (Supra) and Marcelo vs. CA (Aug. 4, 1994) the trial Court
nonetheless should make its own study and evaluation of the said motion and not reply merely
on the awaited action of the secretary.
No such evaluation was ever conducted by the respondent Court before it issued the two (2)
questioned orders.
In view hereof, it is this Courts opinion and stand that the respondent Court may have indeed
acted with grave abuse of discretion amounting to lack or excess of jurisdiction when it denied
the Motion to Withdraw and the motion for reconsideration based solely on its bare and
ambiguous reliance on the Crespo Doctrine, since an independent evaluation and assessment
of the existence of a probable cause is necessary before such orders denying the said motions
could be issued.
Foregoing Premises Considered, the petition for Certiorari is hereby granted. The questioned
orders dated June 10 and July 21, 1998 are hereby set aside and the Informations in Criminal
Cases Nos. 200894 and 200895 are hereby considered withdrawn.9 (Emphasis ours)
SO ORDERED.
The RTC denied Ark Travels motion for reconsideration in its Order dated November 23,
1998,10 to wit:
This resolves the motion for reconsideration filed by private respondent which was temporarily
held in abeyance on account of the manifestation of movants counsel that they intend to file a
motion to inhibit; however, despite the lapse of the 10-day period given to them to do so, the
intended motion has not been filed.
After an extensive study of the motion as well as the opposition thereto, and with careful
consideration and assessment of the circumstances which led to its earlier order, the Court finds
no compelling reason to alter, amend and/or reconsider its order dated October 2, 1998.

A reading of the information sufficiently alleges the facts which make out the offense charged
and in keeping with the above ruling of the Supreme Court, this court hereby denies the Motion
for Reconsideration.

Wherefore, the above-mentioned motion is hereby DENIED for lack of merit.

Set this case for arraignment of both accused on July 30, 1998 at 8:30 in the morning.

Hence, the present petition for certiorari which raises the following issue:

SO ORDERED.8

WHETHER OR NOT THE RESPONDENT COURT COMMITTED A GRAVE ABUSE OF

DISCRETION AMOUNTING TO LACK OF OR IN EXCESS OF JURISDICTION, WHEN IT
NULLIFIED THE ORDERS OF THE COURT A QUO, ENJOINED THE SAID COURT A QUO
FROM HEARING CRIMINAL CASES NOS. 200894 AND 200895, AND THEREAFTER,
ORDERED THE OUTRIGHT DISMISSAL OF SAID CRIMINAL CASES. 11

Private respondents questioned the MTC Orders dated June 10, 1998 and July 21, 1998 via a
petition for certiorari under Rule 65 with the respondent RTC of Makati.
The RTC issued herein assailed Order dated October 2, 1998, portions of which read:
...

SO ORDERED.

Ark Travel argues that the ruling of the RTC contravenes the doctrine laid down by this Court in
the case ofCrespo vs. Mogul12 which enunciated that once a complaint or information is filed in
court any disposition of the case such as its dismissal or the conviction or acquittal of the
accused rests in the sound discretion of the court. Ark Travel likewise insists that criminal
prosecutions cannot be enjoined.

In their Comment, private respondents counter: (1) Appeal and not certiorari under Rule 65 of
the Rules of Court is the appropriate remedy. But even if the petition at bar is treated as an
appeal, the filing thereof way beyond the 15-day reglementary period within which to appeal,
renders the instant petition outrightly dismissable; (2) Assuming arguendo that petition for
certiorari under Rule 65 is the correct remedy, the petition should still be denied and/or
dismissed outright for having been filed beyond the 60-day reglementary period provided by
Rule 65 of the Rules of Court; (3) The RTCs Orders have become final and executory, and
consequently may no longer be disturbed; (4) The filing of the petition with this Court is grossly
violative of the principle of hierarchy of courts; (5) There is no ground to reverse public
respondent RTCs Orders which considered the criminal cases as withdrawn because the
petition does not rebut the validity of the ruling of the DOJ that there is no probable cause to
charge herein private respondents with the crime of false testimony.
In its Reply, Ark Travel argues that herein petition for certiorari is the proper remedy and not
appeal because what is being questioned is not the correctness of the subject Orders but the
jurisdiction of the RTC in considering the criminal cases as withdrawn when said cases are not
pending with it but the MTC; that appeal is not a speedy and/or adequate remedy; and that
herein petition does not violate the principle of hierarchy of court because it presents a question
of law.
We shall first address the procedural aspect.
The issue raised in the present petition concerns the jurisdiction of the RTC in ordering the
dismissal of the criminal cases pending before the MTC and therefore, the proper remedy is
certiorari. As such, the present petition for certiorari ought to have been dismissed for late filing.
The assailed Order dated October 2, 1998 was received by Ark Travel on October 16, 1998. Ark
Travel filed the Motion for Reconsideration fourteen days later or on October 30, 1998. On
November 27, 1998, Ark Travel received the Order of the denial of the Motion for
Reconsideration. Pursuant to Rule 65 of the 1997 Rules on Civil Procedure, then prevailing, the
petition should have been filed on the forty-sixth day (60 days minus 14 days) from November
27, 1998 or on January 12, 1999, the last day of the 60-day reglementary period; instead, the
petition was filed on January 26, 1999.
However, during the pendency of herein petition, the Court promulgated A.M. No. 00-2-03,
amending Section 4, Rule 65 of the 1997 Rules on Civil Procedure, effective September 1, 2000,
to wit:
SEC. 4. When and where petition filed. The petition shall be filed not later than sixty (60) days
from notice of judgment, order or resolution. In case a motion for reconsideration or new trial is
timely filed, whether such motion is required or not, the sixty (60) day period shall be counted
from notice of the denial of said motion.
in which case, the filing of the petition on January 26, 1999 was filed on the 60th day from
November 27, 1998, Ark Travels date of receipt of notice of the order denying Ark Travels
motion for reconsideration.
We have consistently held that statutes regulating the procedure of the courts will be construed
as applicable to actions pending and undetermined at the time of their passage procedural
laws are retroactive in that sense and to that extent.13 In view of such retroactive application of
procedural laws, the instant petition should be considered as timely filed.14

Further, herein case is a clear exception to the principle of hierarchy of courts. The Court has full
discretionary power to take cognizance of the petition filed directly to it for compelling reasons or
if warranted by the nature of the issues raised.15 This case commenced in the MTC way back
1996 and still pends. We therefore set aside such principle for this particular case, in the interest
of speedy justice.16
Anent the substantive aspect.
The general rule is that the denial of a motion to withdraw information, just like a motion to
dismiss a complaint, is an interlocutory order and therefore it cannot be the proper subject of an
appeal or certiorari until a final judgment on the merits of the case is rendered.17 However, there
are certain situations where recourse to certiorari ormandamus is considered appropriate, to wit:
a) when the trial court issued the order without or in excess of jurisdiction; (b) where there is
patent grave abuse of discretion by the trial court; or, (c) appeal would not prove to be a speedy
and adequate remedy as when an appeal would not promptly relieve a defendant from the
injurious effects of the patently mistaken order maintaining the plaintiffs baseless action and
compelling the defendant needlessly to go through a protracted trial and clogging the court
dockets by another futile case.18
All three situations are present in this case. Thus, the petition for certiorari filed with this Court is
the proper remedy.
In the petition for certiorari filed with the RTC, Ark Travel claims that the MTC committed grave
abuse of discretion in denying the Motion to Withdraw Informations on the ground that the MTC
disregarded the DOJs finding of lack of probable cause without making an independent
evaluation of the same.
Indeed, the MTC Order dated June 10, 1998 shows that the Motion to Withdraw Informations
was denied by the MTC solely on the basis of the ruling of the DOJ that there exists a probable
cause; while the MTC Order dated July 21, 1998 denied the motion for reconsideration of the
June 10, 1998 order on the basis of the principle laid down in the Crespo vs. Mogul case that
once an Information was filed in court, its disposition rests in the discretion of the court and that
the allegations of facts in the Information make out the offense charged.
It is settled that when confronted with a motion to withdraw an Information on the ground
of lack of probable cause based on a resolution of the Secretary of the Department of
Justice, the bounden duty of the trial court is to make an independent assessment of the
merits of such motion.19 Having acquired jurisdiction over the case, the trial court is not
bound by such resolution but is required to evaluate it before proceeding further with the
trial20 and should embody such assessment in the order disposing the motion.21
The subject MTC Orders do not show that the MTC made an independent assessment of the
merits of the Motion to Withdraw Informations. The MTC merely based its first order on the ruling
of the DOJ that probable cause existed. In the second order, the MTC merely stated that from its
reading of the Informations, and in keeping with the Crespo ruling, it is denying the motion for
reconsideration.1wphi1
The MTC should have made an independent evaluation and embodied its assessment in at least
one of its assailed orders, especially considering that the DOJ had issued contradicting rulings

on the existence of probable cause. Hence, on this point, we agree with the RTC that the MTC
committed grave abuse of discretion.
But the RTC, acting on the petition for certiorari before it, not only committed grave abuse of
discretion but acted in excess of or beyond its jurisdiction in considering the criminal cases
pending in the MTC as withdrawn, which in effect, causes the dismissal of the two criminal
cases. First, the subject cases are not within the jurisdiction of the RTC to dismiss. The only
issue brought to it is whether or not the MTC committed grave abuse of discretion in denying the
motion to withdraw without making any independent evaluation as to whether or not there is a
probable cause. Second, while ruling that the MTC should have made an independent
assessment on the merits of the Motion to Withdraw Informations, the RTC itself omitted to do
the very thing that it prescribed the MTC to do. It unceremoniously considered the criminal cases
as withdrawn, without evaluation or determination of the existence of the probable cause.
The RTC should have only nullified the subject MTC Order and remanded the case to the MTC
for its determination of the existence of probable cause pursuant to the
aforementioned Crespo and Ledesma cases.
However, inasmuch as we have taken cognizance of this case in the interest of speedy justice
and considering that the entire records have been forwarded to us, it is befitting that we
determine the existence of probable cause to put an end to this issue which had been
unresolved since 1998, not to mention the fact that the subject Informations were initially filed in
1996. A remand of the case to the MTC for an independent evaluation of the existence of
probable cause will only delay the disposition of the case and contribute in the clogging of the
dockets.
To constitute the crime of False Testimony in a Civil Case under Article 182 of the Revised Penal
Code, the following requisites must concur:

The existence of the last three requisites is quite dubious. The falsity of the subject testimonies
of private respondents is yet to be established. It is noted that at the time of the filing of the
criminal complaints, the civil case filed by Ark Travel is still pending decision.23 Ark Travel has yet
to prove the validity of its monetary claims and damages against NFMAI. It is only after trial that
the RTC can assess the veracity or falsity of the testimony and correspondingly render a
decision. Thus, the civil case is so intimately connected with the subject crime that it is
determinative of the guilt or innocence of the respondents in the criminal cases. In other words,
whether or not the testimonies of private respondents in the civil cases are false is a prejudicial
question. It is clear that the elements of a prejudicial question are present as provided in Section
7, Rule 111 of the Revised Rules of Criminal Procedure, to wit:
SEC. 7 Elements of Prejudicial question. The elements of a prejudicial question are: (a) the
previously instituted civil action involves an issue similar or intimately related to the issue raised
in the subsequent criminal action; and (b) the resolution of such issue determines whether or not
the criminal action may proceed.
Section 6, Rule 111 of the Revised Rules of Criminal Procedures provides:
SEC. 6. Suspension by reason of prejudicial question. A petition for suspension of the criminal
action based upon the pendency of a prejudicial question in a civil action may be filed in the
office of the prosecutor or the court conducting the preliminary investigation. When the criminal
action has been filed in court for trial, the petition to suspend shall be filed in the same
criminal action at any time before the prosecution rests. (Emphasis supplied)
Hence, pending determination of the falsity of the subject testimonies of private respondents in
the civil case, the criminal action for false testimony must perforce be suspended. As such,
under the attendant circumstances, although there is no motion to suspend proceedings on the
part of the private respondents, orderly administration of justice dictates that the criminal cases
should be suspended.

1. the testimony must be given in a civil case;

2. the testimony must relate to the issues presented in the case;
3. the testimony is false;
4. the false testimony must be given by the defendant knowing the same to be false;
and
5. such testimony must be malicious and given with and intent to affect the issues
presented in the case.22
There is no doubt that the first two requisites are extant in this case. The records show that Ark
Travel filed a complaint for collection of sum of money, torts and damages against New Filipino
Maritime Agencies, Inc. (NFMAI) and Angelina T. Rivera with the Regional Trial Court of Makati
(Branch 137), docketed as Civil Case No. 95-1542. In said civil case, private respondents were
presented by NFMAI as witnesses. They executed their respective sworn statements and
testified before the trial court that NFMAI has no outstanding obligation with Ark Travel as the
same had been paid in full.

WHEREFORE, the assailed Orders dated October 2, 1998 and November 23, 1998 of the
Regional Trial Court are NULLIFIED and SET ASIDE insofar only as said court, acting as an
appellate court, considered Criminal Cases Nos. 200894 and 200895 as withdrawn.
The Orders dated June 10, 1998 and July 21, 1998 of the Metropolitan Trial Court of Makati
(Branch 67) in Criminal Cases Nos. 200894 and 200895 are likewise NULLIFIED and SET
ASIDE for having been issued with grave abuse of discretion. In lieu thereof, the said
Metropolitan Trial Court is directed to SUSPEND the criminal proceedings until after the final
decision in Civil Case No. 95-1542 of the Regional Trial Court of Makati City (Branch 137).
No costs.
SO ORDERED.

PEOPLE OF THE PHILIPPINES, petitioner,

vs.
RAFAEL JOSE CONSING, JR., respondent.
YNARES-SANTIAGO, J.:
Before us is a petition for review under Rule 45 of the Rules of Court, seeking to set aside the
May 31, 2001 decision 1 of the Court of Appeals 2 in CA-G.R. SP No. 63712, which reversed and
set aside the January 23, 2001 order 3 of the Regional Trial Court of Imus, Cavite, Branch 21, in
Criminal Case No. 7668-00 denying respondent's motion for deferment of arraignment.
Sometime in February 1997, respondent Rafael Jose Consing, Jr. and his mother, Cecilia de la
Cruz, 4represented to Plus Builders, Inc. (PBI) that they are the true and lawful owners of a
42,443 square meter lot situated in Imus, Cavite and covered by Transfer Certificate of Title No.
687599 in the name of Cecilia de la Cruz. They further represented that they acquired said lot,
which was previously covered by TCT No. 191408 from Juanito Tan Teng and Po Willie Yu.
Relying on the representations of respondent and his mother, PBI purchased the questioned lot.
In April 1999, PBI discovered that respondent and his mother did not have a valid title over the
subject lot. PBI came to know that Juanito Tan Teng and Po Willie Yu never sold said lot to
respondent and his mother and that TCT No. 191408 upon which TCT No. 687599 was based is
not on file with the Register of Deeds.
In August 1999, PBI was ousted from the possession of the disputed lot by Juanito Tan Teng and
Po Willie Yu. Despite written and verbal demands, respondent and his mother refused to return
the amount of P13,369,641.79 alleged to have been initially paid by PBI.
On July 22, 1999, respondent filed with the Regional Trial Court of Pasig City, Branch 68, an
action for "Injunctive Relief" docketed as Civil Case No. SCA 1759, against PBI, Unicapital Inc,
Unicapital Realty Inc., Jaime Martires, Mariano D. Martinez, Cecilia de la Cruz and 20 other
John Does. 5 Respondent sought a declaration that he was merely an agent of his mother,
Cecilia de la Cruz, and therefore was not under any obligation to PBI and to the other
defendants on the various transactions involving TCT No. 687599.
On October 13, 1999, PBI filed against respondent and his mother a complaint for "Damages
and Attachment," docketed as Civil Case No. 99-95381, with Branch 12 of the Regional Trial
Court of Manila. 6 Respondent filed a motion to dismiss on the ground of forum shopping and
pendency of Civil Case No. SCA 1759. 7
On January 21, 2000, a criminal case for estafa through falsification of public document was
filed against respondent Rafael Jose Consing, Jr. and his mother with the RTC of Imus, Cavite.
On April 7, 2000, respondent filed a motion to defer arraignment on the ground of prejudicial
question, i. e., the pendency of Civil Case Nos. SCA 1759 and 99-95381. 9 On January 27,
2000, the trial court denied respondent's motion.
A motion for reconsideration thereof was likewise denied on February 27, 2001. 10

G.R. No. 148193

January 16, 2003

Respondent filed a petition for certiorari with prayer for the issuance of a temporary restraining
order and/or writ of preliminary injunction with the Court of Appeals seeking to enjoin the

arraignment and trial of the estafa through falsification case. 11 The Court of Appeals granted
respondent's prayer for the issuance of a temporary restraining order in a resolution dated
March 19, 2001. 12
On May 31, 2001, a decision was rendered setting aside the January 27, 2000 order of the, trial
court and permanently enjoining it from proceeding with the arraignment and trial of the criminal
case until the civil cases for Injunctive Relief and for Damages and Attachment shall have been
finally decided.
Hence, the People of the Philippines, represented by the Solicitor General, filed the instant
petition seeking the reversal of the May 31, 2001 decision of the Court of Appeals.
The issue to be resolved in this petition is whether or not the pendency of Civil Case Nos. SCA
1759 and 99-95381, for Injunctive Relief and for Damages and Attachment, is a prejudicial
question justifying the suspension of the proceedings in the criminal case for estafa through
falsification of public document, filed against the respondent.
A prejudicial question is defined as that which arises in a case, the resolution of which is a
logical antecedent of the issue involved therein, and the cognizance of which pertains to another
tribunal. The prejudicial question must be determinative of the case before the court but the
jurisdiction to try and resolve the question must be lodged in another court or tribunal. It is a
question based on a fact distinct and separate from the crime but so intimately connected with it
that it determines the guilt or innocence of the accused. For a civil action to be considered
prejudicial to a criminal case as to cause the suspension of the criminal proceedings until the
final resolution of the civil action, the following requisites must be present: (1) the civil case
involves facts intimately related to those upon which the criminal prosecution would be based;
(2) in the resolution of the issue or issues raised in the civil action, the guilt or innocence of the
accused would necessarily be determined; and (3) jurisdiction to try said question must be
lodged in another tribunal. 13
If both civil and criminal cases have similar issues or the issue in one is intimately related to the
issues raised in the other, then a prejudicial question would likely exist, provided the other
element or characteristic is satisfied. It must appear not only that the civil case involves the
same facts upon which the criminal prosecution would be based, but also that the resolution of
the issues raised in the civil action would be necessarily determinative of the guilt or innocence
of the accused. If the resolution of the issue in the civil action will not determine the criminal
responsibility of the accused in the criminal action based on the same facts, or there is no
necessity that the civil case be determined first before taking up the criminal case, therefore, the
civil case does not involve a prejudicial question. 14
In the case at bar, we find no prejudicial question that would justify the suspension of the
proceedings in the criminal case. The issue in Civil Case No. SCA 1759 for Injunctive Relief is
whether or not respondent merely acted as an agent of his mother, Cecilia de la Cruz; while in
Civil Case No. 99-95381, for Damages and Attachment, the question is whether respondent and
his mother are liable to pay damages and to return the amount paid by PBI for the purchase of
the disputed lot. Even if respondent is declared merely an agent of his mother in the transaction
involving the sale of the questioned lot, he cannot be adjudged free from criminal liability. An
agent or any person may be held liable for conspiring to falsify public documents. Hence, the
determination of the issue involved in Civil Case No. SCA 1759 for Injunctive Relief is irrelevant
to the guilt or innocence of the respondent in the criminal case for estafa through falsification of
public document.

Likewise, the resolution of PBI's right to be paid damages and the purchase price of the lot in
question will not be determinative of the culpability of the respondent in the criminal case for
even if PBI is held entitled to the return of the purchase price plus damages, it does not ipso
facto follow that respondent should be held guilty of estafa through falsification of public
document. Stated differently, a ruling of the court in the civil case that PBI should not be paid the
purchase price plus damages will not necessarily absolve respondent of liability in the criminal
case where his guilt may still be established under penal laws as determined by other evidence.
Moreover, neither is there a prejudicial question if the civil and the criminal action can, according
to law, proceed independently of each other. 15 Under Rule 111, Section 3 of the Revised Rules
on Criminal Procedure, in the cases provided in Articles 32, 33, 34 and 2176 of the Civil Code,
the independent civil action may be brought by the offended party. It shall proceed independently
of the criminal action and shall require only a preponderance of evidence. In no case, however,
may the offended party recover damages twice for the same act or omission charged in the
criminal action.
Thus, in Rojas v. People, 16 the petitioner was accused in a criminal case for violation of Article
319 of the Revised Penal Code, for executing a new chattel mortgage on personal property in
favor of another party without consent of the previous mortgagee. Thereafter, the offended party
filed a civil case for termination of management contract, one of the causes of action of which
consisted of petitioner having executed a chattel mortgage while the previous chattel mortgage
was still valid and subsisting. Petitioner moved that the arraignment and trial of the criminal case
be held in abeyance on the ground that the civil case was a prejudicial question, the resolution
of which was necessary before the criminal proceedings could proceed. The trial court denied
the suspension of the criminal case on the ground that no prejudicial question exist. We affirmed
the order of the trial court and ruled that:
. . . the resolution of the liability of the defendant in the civil case on the eleventh
cause of action based on the fraudulent misrepresentation that the chattel mortgage
the defendant executed in favor of the said CMS Estate, Inc. on February 20, 1957,
that his D-6 "Caterpillar" Tractor with Serial No. 9-U-6565 was "free from all liens and
encumbrances" will not determine the criminal liability of the accused in the said
Criminal Case No. 56042 for violation of paragraph 2 of Article 319 of the Revised
Penal Code . . . (i) That, even granting for the sake of argument, a prejudicial question
is involved in this case, the fact remains that both the crime charged in the information
in the criminal case and the eleventh cause of action in the civil case are based upon
fraud, hence both the civil and criminal cases could proceed independently of the
other pursuant to Article 33 of the new Civil Code which provides: "In cases of
defamation, fraud and physical injuries, a civil action for damages, entirely separate
and distinct from the criminal action shall proceed independently of the criminal
prosecution, and shall require only a preponderance of evidence." (j) That, therefore,
the act of respondent judge in issuing the orders referred to in the instant petition was
not made with "grave abuse of discretion."
In the instant case, Civil Case No. 99-95381, for Damages and Attachment on account of the
alleged fraud committed by respondent and his mother in selling the disputed lot to PBI is an
independent civil action under Article 33 of the Civil Code. As such, it will not operate as a
prejudicial question that will justify the suspension of the criminal case at bar.
WHEREFORE, in view of all the foregoing, the instant petition is GRANTED. The May 31, 2001
decision of the Court of Appeals in CA-G.R. SP No. 63712 is REVERSED and SET ASIDE. The
permanent injunction issued by the Court of Appeals is LIFTED and the Regional Trial Court of

Imus, Cavite, Branch 21 is ORDERED to proceed with the arraignment and trial in Criminal
Case No. 7668-00.
SO ORDERED.
Davide, Jr., C .J ., Vitug, Carpio, and Azcuna, JJ ., concur.
DOJ-NPS MANUAL, PART III, SEC. 4
G.R. No. 103102 March 6, 1992
SEC. 4. Effect of amendment of information. - In case an information is amended, a new
preliminary investigation shall be conducted if the amended charge is not related to the crime
originally charged; if there is a change in the nature of the crime charged; or if the information on
its face is null and void for lack of authority to file the same.

CLAUDIO J. TEEHANKEE, JR., petitioner,

vs.
HON. JOB B. MADAYAG and PEOPLE OF THE PHILIPPINES, respondents.

REGALADO, J.:
In this special civil action for certiorari, prohibition and mandamus, petitioner principally seeks:
(1) to nullify the order 1 of respondent judge admitting the amended information for murder filed
in Criminal Case No.
91-4606; (2) to nullify the arraignment and the plea of not guilty entered by order of respondent
judge when petitioner refused to be arraigned on the amended information for lack of preliminary
investigation therefor; (3) to nullify the appointment of a counsel de oficio/PAO lawyer to
represent petitioner; (4) to prohibit respondent judge from "over-speedy and preferential
scheduling of the trial of the aforementioned criminal case;" and (5) to compel respondent judge
to order preliminary investigation of the crime charged in the amended information.
Petitioner was originally charged on July 19, 1991 in an information 2 for the crime of frustrated
murder allegedly committed as follows:
That on or about the 13th day of July 1991, in the Municipality of Makati,
Metro Manila, Philippines, and within the jurisdiction of this Honorable Court,
the above-named accused, while armed with a handgun, with intent to kill,
treachery and evident premeditation, did then and there willfully, unlawfully,
and feloniously attack, assault and shoot one Maureen Navarro Hultman on
the head, thereby inflicting gunshot wounds, which ordinarily would have
caused the death of said Maureen Navarro Hultman, thereby performing all
the acts of execution which would have produced the crime of Murder as a
consequence, but nevertheless did not produce it by reason of cause or
causes independent of her will, that is, due to the timely and able medical
assistance rendered to said Maureen Navarro Hultman which prevented her
death.
After the prosecution had rested its case, petitioner was allowed to file a motion for leave to file a
demurrer to evidence. However, before the said motion could be filed, Maureen Navarro
Hultman died.

Consequently, private prosecutor Rogelio A. Vinluan filed an omnibus motion 3 for leave of court
to file an amended information and to admit said amended information. The amended
information, 4 filed on October 31, 1991, reads:
That on or about the 13th day of July, 1991, in the Municipality of Makati,
Metro Manila, Philippines and within the jurisdiction of this Honorable
Court, the said Claudio Teehankee, Jr. y. Javier, armed with a handgun, with
intent to kill and evident premeditation and by means of treachery, did then
and there willfully, unlawfully and feloniously attack, assault and shoot with
the said handgun Maureen Navarro Hultman who was hit in the head,
thereby inflicting mortal wounds which directly caused the death of said
Maureen Hultman.
Petitioner filed an opposition 5 thereto, as well as a rejoinder 6 to the reply 7 of the prosecution.
On November 13, 1991, the trial court issued the questioned order admitting the amended
information.
At the scheduled arraignment on November 26, 1991, petitioner refused to be arraigned on the
amended information for lack of a preliminary investigation thereon. By reason of such refusal,
respondent judge ordered that a plea of "not guilty" be entered for petitioner.
Thereafter, respondent judge ordered the prosecution to present its evidence. When petitioner's
counsel manifested that he would not take part in the proceedings because of the legal issue
raised, the trial court appointed a counsel de oficio to represent herein petitioner.

assault and shoot with the said handgun Maureen Navarro Hultman who was hit in the head,
thereby inflicting mortal wounds which directly caused the death of said Maureen Hultman . . ."
constitutes a substantial amendment since it involves a change in the nature of the offense
charged, that is, from frustrated to consummated murder. Petitioner further submits that "(t)here
is a need then to establish that the same mortal wounds, which were initially frustrated (sic) by
timely and able medical assistance, ultimately caused the death of the victim, because it could
have been caused by a supervening act or fact which is not imputable to the offender." 9 From
this, he argues that there being a substantial amendment, the same may no longer be allowed
after arraignment and during the trial.
Corollary thereto, petitioner then postulates that since the amended information for murder
charges an entirely different offense, involving as it does a new fact, that is, the fact of death
whose cause has to be established, it is essential that another preliminary investigation on the
new charge be conducted before the new information can be admitted.
We find no merit in the petition. There are sufficient legal and jurisprudential moorings for the
orders of the trial court.
Section 14, Rule 110 of the 1985 Rules on Criminal Procedure provides:
Sec. 14. Amendment. The information or complaint may be amended, in
substance or form, without leave of court, at any time before the accused
pleads; and thereafter and during the trial as to all matters of form, by leave
and at the discretion of the court, when the same can be done without
prejudice to the rights of the accused.

Petitioner now raises the following issues before us:

(a) Whether or not an amended information involving a substantial
amendment, without preliminary investigation, after the prosecution has
rested on the original information, may legally and validly be admitted;
(b) Whether or not a counsel de oficio may legally and validly be appointed
to represent an accused who is represented by counsel of choice who
refuses to participate in the proceedings because of a perceived denial of
due process and after a plea for appellate remedies within a short period is
denied by the trial court; and
(c) Whether or not a particular criminal case may legally and validly be
rushed and preferentially scheduled for trial over and at the expense and
sacrifice of other, specially older, criminal cases. 8
In our resolution of January 14, 1992, we required the Solicitor General to file a comment to the
basic petition. It appearing from a further review of the record that the operative facts and
determinant issues involved in this case are sufficiently presented in the petition and the
annexes thereto, both in regard to the respective positions of petitioner and respondents, the
Court has decided to dispense with the aforesaid comment to obviate needless delay in fairness
to petitioner.
I. Petitioner avers that the additional allegation in the amended information, as herein
underscored, that the accused ". . . did then and there willfully, unlawfully and feloniously attack,

If it appears at any time before judgment that a mistake has been made in
charging the proper offense, the court shall dismiss the original complaint or
information upon the filing of a new one charging the proper offense in
accordance with Rule 119, Section 11, provided the accused would not be
placed thereby in double jeopardy and may also require the witnesses to
give bail for their appearance at the trial.
The first paragraph provides the rules for amendment of the information or complaint, while the
second paragraph refers to the substitution of the information or complaint.
It may accordingly be posited that both amendment and substitution of the information may be
made before or after the defendant pleaded, but they differ in the following respects:
1. Amendment may involve either formal or substantial changes, while substitution necessarily
involves a substantial change from the original charge;
2. Amendment before plea has been entered can be effected without leave of court, but
substitution of information must be with leave of court as the original information has to be
dismissed;
3. Where the amendment is only as to form, there is no need for another preliminary
investigation and the retaking of the plea of the accused; in substitution of information, another
preliminary investigation is entailed and the accused has to plead anew to the new information;
and

4. An amended information refers to the same offense charged in the original information or to
an offense which necessarily includes or is necessarily included in the original charge, hence
substantial amendments to the information after the plea has been taken cannot be made over
the objection of the accused, for if the original information would be withdrawn, the accused
could invoke double jeopardy. On the other hand, substitution requires or presupposes that the
new information involves a different offense which does not include or is not necessarily included
in the original charge, hence the accused cannot claim double jeopardy.

following have been held to be merely formal amendments, viz: (1) new allegations which relate
only to the range of the penalty that the court might impose in the event of conviction; 12 (2) an
amendment which does not charge another offense different or distinct from that charged in the
original one; 13 (3) additional allegations which do not alter the prosecution's theory of the case
so as to cause surprise to the accused and affect the form of defense he has or will assume; and
(4) an amendment which does not adversely affect any substantial right of the accused, such as
his right to invoke prescription. 14

In determining, therefore, whether there should be an amendment under the first paragraph of
Section 14, Rule 110, or a substitution of information under the second paragraph thereof, the
rule is that where the second information involves the same offense, or an offense which
necessarily includes or is necessarily included in the first information, and amendment of the
information is sufficient; otherwise, where the new information charges an offense which is
distinct and different from that initially charged, a substitution is in order.

We repeat that after arraignment and during the trial, amendments are allowed, but only as to
matters of form andprovided that no prejudice is caused to the rights of the accused. 15 The test
of whether an amendment is only of form and an accused is not prejudiced by such amendment
has been said to be whether or not a defense under the information as it originally stood would
be equally available after the amendment is made, and whether or not any evidence the
accused might have would be equally applicable to the information in the one form as in the
other; if the answer is in the affirmative, the amendment is one of form and not of substance. 16

There is identity between the two offenses when the evidence to support a conviction for one
offense would be sufficient to warrant a conviction for the other, or when the second offense is
exactly the same as the first, or when the second offense is an attempt to commit or a frustration
of, or when it necessarily includes or is necessarily included in, the offense charged in the first
information. In this connection, an offense may be said to necessarily include another when
some of the essential elements or ingredients of the former, as this is alleged in the information,
constitute the latter. And, vice-versa, an offense may be said to be necessarily included in
another when the essential ingredients of the former constitute or form a part of those
constituting the latter. 10
Going now to the case at bar, it is evident that frustrated murder is but a stage in the execution
of the crime of murder, hence the former is necessarily included in the latter. It is indispensable
that the essential element of intent to kill, as well as qualifying circumstances such as treachery
or evident premeditation, be alleged in both an information for frustrated murder and for murder,
thereby meaning and proving that the same material allegations are essential to the sufficiency
of the informations filed for both. This is because, except for the death of the victim, the essential
elements of consummated murder likewise constitute the essential ingredients to convict herein
petitioner for the offense of frustrated murder.
In the present case, therefore, there is an identity of offenses charged in both the original and
the amended information. What is involved here is not a variance in the nature of different
offenses charged, but only a change in the stage of execution of the same offense from
frustrated to consummated murder. This is being the case, we hold that an amendment of the
original information will suffice and, consequent thereto, the filing of the amended information for
murder is proper.
Petitioner would insist, however, that the additional allegation on the fact of death of the victim
Maureen Navarro Hultman constitutes a substantial amendment which may no longer be
allowed after a plea has been entered. The proposition is erroneous and untenable.
As earlier indicated, Section 14 of Rule 110 provides that an amendment, either of form or
substance, may be made at any time before the accused enters a plea to the charge and,
thereafter, as to all matters of form with leave of court.
A substantial amendment consists of the recital of facts constituting the offense charged and
determinative of the jurisdiction of the court. All other matters are merely of form. 11 Thus, the

Now, an objective appraisal of the amended information for murder filed against herein petitioner
will readily show that the nature of the offense originally charged was not actually changed.
Instead, an additional allegation, that is, the supervening fact of the death of the victim was
merely supplied to aid the trial court in determining the proper penalty for the crime. That the
accused committed a felonious act with intent to kill the victim continues to be the prosecution's
theory. There is no question that whatever defense herein petitioner may adduce under the
original information for frustrated murder equally applies to the amended information for murder.
Under the circumstances thus obtaining, it is irremissible that the amended information for
murder is, at most, an amendment as to form which is allowed even during the trial of the case.
It consequently follows that since only a formal amendment was involved and introduced in the
second information, a preliminary investigation is unnecessary and cannot be demanded by the
accused. The filing of the amended information without the requisite preliminary investigation
does not violate petitioner's right to be secured against hasty, malicious and oppressive
prosecutions, and to be protected from an open and public accusation of a crime, as well as
from the trouble, expenses and anxiety of a public trial. The amended information could not
conceivably have come as a surprise to petitioner for the simple and obvious reason that it
charges essentially the same offense as that charged under the original information.
Furthermore, as we have heretofore held, if the crime originally charged is related to the
amended charge such that an inquiry into one would elicit substantially the same facts that an
inquiry into the other would reveal, a new preliminary investigation is not necessary. 17
We find nothing irregular in the appointment by the trial court of a counsel de oficio for herein
petitioner whose counsel of record refused to participate in the proceedings because of an
alleged legal issue. Such issue having been demonstrated herein as baseless, we apprehend
his refusal to participate in the trial as causative of or contributive to the delay in the disposition
of the case. And, finally, for as long as the substantial rights of herein petitioner and other
persons charged in court are not prejudiced, the scheduling of cases should be left to the sound
discretion of the trial court.
WHEREFORE, it being clearly apparent that respondent judge did not commit the errors
speciously attributed to him, the extraordinary writs prayed for are hereby DENIED and the
instant petition is DISMISSED for lack of merit.
SO ORDERED.

G.R. No. L-44079 December 19, 1985

JOSEFINO C. DRACULAN Provincial Fiscal of Isabela and PATRICIO T. DURIAN, Fourth
Assistant Provincial Fiscal of Isabela, petitioners,
vs.
HON. PROCORO DONATO, Judge, Court of First Instance of Isabela, Branch
V, respondent.

CUEVAS, J.:
Assailed and challenged in this petition for certiorari and MANDAMUS, for allegedly having been
issued without jurisdiction and/or with grave abuse of discretion amounting to lack of jurisdiction,
are two orders issued by the Honorable respondent Judge in Criminal Case No. V-351 of the
defunct Court of First Instance of Isabela-Echague, Branch V. One dated April 13,
1976 1 denying petitioners' motion to dismiss; and another one, issued on May 28,
1976 2 denying petitioners' motion for reconsideration of the aforesaid order of dismissal.
The pertinent background facts are as follows:
On June 25, 1973, the Chief of Police of San Isidro, Isabela filed with the Municipal Court of the
said place, a complaint for Less Serious Physical Injuries against Florencio Miguel. The case
was docketed in the said court as Criminal Case No. 63.
Tried after pleading not guilty upon arraignment, accused Miguel was convicted as charged and
thereafter accordingly sentenced in a decision promulgated on November 14, 1973.

From the aforesaid decision, Miguel appealed to the then Court of First Instance of Isabela,
where his appeal was docketed as Criminal Case No. V-351 and assigned to Branch V of the
said court presided by the Honorable respondent Judge. 'The record of the said case was then
transmitted and referred by the Clerk of Court to the Office of the Provincial Fiscal of Isabela
Upon a review of the evidence made by the provincial fiscal's office, petitioners found that
accused-appellant Miguel should have been charged with "Direct Assault Upon a Person in
Authority" it appearing that Benjamin Antonio, the offended party, is a person in authority then
engaged in the performance of his official duties when assaulted. In view thereof, petitioners'
office, then conducted a new preliminary investigation and upon a prima facie showing that
direct assault was actually the, crime committed by accused- appellant Miguel, petitioners filed
with the respondent court t a Motion to Dismiss the appealed Less Serious Physical Injury case.
Simultaneously, a new information for Direct Assault was filed against Miguel which was
docketed as Criminal Case No. V-419 Upon receipt of the records of this assault case,
respondent Judge, in an order dated December 17, 1975, directed that it be returned to the
Fiscal's Office on the ground that it was prematurely filed considering that at that time, the
prosecution's motion to dismiss the appeal was still pending resolution.
Undaunted by such a disposition, petitioners then filed a new information which they caused to
be docketed also as Criminal Case No. V-351 similar to that of the appealed less serious
physical injury case, and thereafter again moved for the dismissal of the appealed case.
Petitioners' motion was denied and so with their motion for reconsideration of the order of denial.
Hence, the instant petition wherein it is prayed that the aforementioned orders of respondent
Judge dated April 13, 1976 and May 28, 1976 be declared null and void; that respondent Judge
be ordered to dismiss the appealed less serious physical injury case; and that a writ of
preliminary injunction enjoining respondent from proceeding with the trial of the appealed less
serious physical injury case be issued which should be made permanent after hearing on the
merits.
The petition is devoid of merit. Consequently, its dismissal is in order.
Criminal Case No. V-351 is an appeal, not an original case. It is before the Court of First
Instance (now Regional Trial Court) of Isabela pursuant to the appeal interposed by accused
Florencio Miguel from the decision of the Municipal Court of San Isidro convicting him of Less
Serious Physical Injuries. The Court of First Instance then took cognizance of such case in the
exercise of its appellate jurisdiction. And since the appeal was subsequent to the passage of
Republic Act No. 6031, 3 which took effect on August 4, 1969, the appeal must now be disposed
of on the basis of the evidence presented and admitted in the municipal court. No trial de novo is
necessary but the parties may merely submit and/or be required to file their respective briefs or
memoranda. 4
But since the proceeding before the San Isidro Municipal Court was not duly recorded because
of the absence of a qualified stenographer, the court of First Instance of Isabela must now
conduct a trial de novo of the case on appeal.
The question therefore posed before us ismay the prosecution amend the information and/or
file a new information charging an offense different from that with which accused-appellant was
tried and convicted in the court below?

Petitioners' answer to this query is in the affirmative, relying on Section 13 of Rule 110 of the
Rules of Court, 5which provides:
Section 13. Amendment. The information or complaint may be amended, in
substance or form, without leave of court, at any time before the defendant
pleads; and thereafter and during the trial as to all matters of form, by leave
and at the discretion of the court, when the same can be done without
prejudice to the rights of the defendant.
If it appears at any time before judgment that a mistake has been made in
charging the proper offense, the court may dismiss the original complaint or
information and order the filing of a new one charging the proper offense,
provided the defendant would not be placed thereby in double jeopardy, and
may also require the witnesses to give bail for their appearance at the trial.
The above section contains two parts: one authorizes the amendment of an information or
complaint, in substance or form, without leave of court, at any time before the defendant pleads,
and thereafter, only as to matters of form. The other provides that, if it appears at any time
before judgment that a mistake has been made in charging the proper offense, the court may
dismiss the original complaint or information and order the filing of a new one charging the
proper offense, provided the defendant would not be placed in double jeopardy.
The amendment 6 or the filing of a new case where there had been a mistake in charging the
proper offense after the dismissal of an existing one, 7 spoken of and therein provided for apply,
only to an original case where no judgment has as yet been rendered. Much less does the said
section apply to an appealed case such as the instant proceeding. 8
The reason is obvious and that is because the right to amend or to file a new complaint or
information charging the proper offense after the dismissal of the original complaint or
information, is subject to the rule on double jeopardy, which petitioners in the instant case
miserably missed,
In the case at bar, the original charges was that of less serious physical injuries. Whether the
new charge for direct assault with less serious physical injuries is by way of amendment or
through a new information is immaterial since in both instances accused's former conviction
would be a bar to a subsequent prosecution for the second offense. This was the dictum laid
down in the case of People vs. Bonotan 9 and which doctrine was reiterated in the recent case of
Tacas vs. Cariaso 10 Thus:
The charge of direct assault upon a person in authority with physical injuries
contained in the fiscal's information is not included in the charge contained
in the complaint of the chief of police, which is merely that of less serious
physical injuries unqualified by any allegation that those injuries were
inflicted upon the offended municipal councilor, admittedly a person in
authority, while he was in the performance of his official duties or on the
occasion thereof, a qualification essential to the offense charged in the
information. The converse is no less obvious, that is, that the charge, of
direct assault upon a person in authority with physical injuries as set out in
the information necessarily includes the offense of less serious physical
injuries charged on the complaint, specially because in both the information
and the complaint, the physical injuries inflicted are alleged to have required

medical assistance of a period of 14 days and incapacitated the offended

party from labor for the same period of time. As proof that the offense
charged in the information includes the offense charged in the complaint,
conviction of the defendants of this latter offense may, without question, be
had under the information if the other ingredients of the crime charged in
said information are not proved. Hence, the defense of double jeopardy was
wen taken. The order of dismissal was thus affirmed precisely or. the very
same constitutional ground relied upon in this petition. 11
We find the said pronouncement "on all fours" to the instant case. Petitioners' submittal not
being in accord therewith may not be sustained.
But the more serious repercussion of which the petitioners appeared unmindful of, is the fact
that with the withdrawal of the appeal, the old judgment of conviction is revived and the accused
loses his right to a review of the evidence on appeal by way of questioning the validity of his
conviction. What is sought to be dismissed is not the main case, 12 but merely the appeal which
was docketed as Criminal Case No. V-351
WHEREFORE, finding the instant petition to be without merit, the same is DISMISSED. The
appropriate Regional Trial Court of Isabela to which Criminal Case No. V-351 was reassigned is,
therefore, hereby directed to proceed immediately with the trial of the said case until its final
termination.
No pronouncement as to costs.
SO ORDERED.

G.R. No. L-31665 August 6, 1975

LEONARDO ALMEDA, petitioner,
vs.
HON. ONOFRE A. VILLALUZ, in his capacity as presiding judge of the Circuit Criminal
Court, Seventh Judicial District, Pasig, Rizal, and HON. GREGORIO PINEDA, City Fiscal of
Pasay City, respondents.
Honorio Makalintal, Jr. for petitioner.
Pasay City Fiscal Gregorio Pineda for respondent.

CASTRO, J.:

The petitioner Leonardo Almeda (alias Nardong Paa) was charged, together with five others,
with the crime of qualified theft of a motor vehicle (criminal case 285-Pasay) in the Circuit
Criminal Court of Pasig, Rizal, presided by the respondent Judge Onofre Villauz. The amount of
the bond recommended for the provisional release of Almeda was P15,000, and this was
approved by the respondent judge with a direction that it be posted entirely in cash.
At the hearing of February 18, 1970, Almeda asked the trial court to allow him to post a surety
bond in lieu of the cash bond required of him. This request was denied, and so was an oral
motion for reconsideration, on the ground that the amended information imputed habitual
delinquency and recidivism on the part of Almeda.
At the same hearing, the respondent city fiscal, thru his assistant, reiterated his oral motion
made at a previous hearing for amendment of the information so as to include allegations of
recidivism and habitual delinquency in the particular case of Almeda. The latter vigorously
objected, arguing that (a) such an amendment was premature since no copies of prior conviction
could yet be presented in court, (b) the motion to amend should have been made in writing in
order to enable him to object formally, and (c) the proposed amendment would place him in
double jeopardy considering that he had already pleaded not guilty to the information. The trial
court nevertheless granted the respondent fiscal's motion in open court. An oral motion for
reconsideration was denied.
Immediately thereafter, the assistant fiscal took hold of the original information and, then and
there, entered his amendment by annotating the same on the back of the document. The
petitioner forthwith moved for the dismissal of the charge on the ground of double jeopardy, but
this motion and a motion for reconsideration were denied in open court.
Hence, the present special civil action for certiorari with preliminary injunction.

property bond does not require an actual financial outlay on the part of the bondsman or the
property owner, and in the case of the bondsman the bond may be obtained by the accused
upon the payment of a relatively small premium. Only the reputation or credit standing of the
bondsman or the expectancy of the price at which the property can be sold, is placed in the
hands of the court to guarantee the production of the body of the accused at the various
proceedings leading to his conviction or acquittal. Upon the other hand, the posting of a cash
bond would entail a transfer of assets into the possession of the court, and its procurement
could work untold hardship on the part of the accused as to have the effect of altogether denying
him his constitutional right to bail.
Aside from the foregoing, the condition that the accused may have provisional liberty only upon
his posting of a cash bond is abhorrent to the nature of bail and transgresses our law on the
matter. The sole purpose of bail is to insure the attendance of the accused when required by the
court, and there should be no suggestion of penalty on the part of the accused nor revenue on
the part of the government. The allowance of a cash bond in lieu of sureties is authorized in this
jurisdiction only because our rules expressly provide for it. Were this not the case, the posting of
bail by depositing cash with the court cannot be countenanced because, strictly speaking, the
very nature of bail presupposes the attendance of sureties to whom the body of the prisoner can
be delivered. 6 And even where cash bail is allowed, the option to deposit cash in lieu of a surety
bond primarily belongs to the accused. This is clearly deducible from the language of section 14
of Rule 114 of the Rules of Court:
SEC. 14. Deposit of money as bail. At any time after the amount of bail is
fixed by order, the defendant, instead of giving bail, may deposit with the
nearest collector of internal revenue, or provincial, city, or municipal
treasurer the sum mentioned in the order, and upon delivering to the court a
proper certificate of the deposit, must be discharged from custody. Money
thus deposited, shall be applied to the payment of the fine and costs for
which judgment may be given; and the surplus, if any, shall be returned to
the defendant.

Two issues are posed to us for resolution: First, whether the respondent judge has the authority
to require a strictly cash bond and disallow the petitioner's attempt to post a surety bond for his
provisional liberty, and second, whether the amendment to the information, after a plea of not
guilty thereto, was properly allowed in both substance and procedure.

Thus, the trial court may not reject otherwise acceptable sureties and insist that the accused
obtain his provisional liberty only thru a cash bond.

1. As defined by section 1 of Rule 114 of the Rules of Court, bail is "the security required and
given for the release of a person who is in the custody of the law, that he will appear before any
court in which his appearance may be required as stipulated in the bail bond or recognizance."
The purpose of requiring bail is to relieve an accused from imprisonment until his conviction and
yet secure his appearance at the trial. 1

But while we repudiate the particular measure adopted by the respondent judge, we cannot fault
the motive that caused him to demur to the petitioner's offer of a surety bond. Based on the
petitioner's past record, 7 the range of his career in crime weighs heavily against letting him off
easily on a middling amount of bail. The likelihood of his jumping bail or committing other harm
to the citizenry while on provisional liberty is a consideration that simply cannot be ignored.

In this jurisdiction, the accused, as of right, is entitled to bail prior to conviction except when he is
charged with a capital offense and the evidence of guilt is strong. This right is guaranteed by the
Constitution, 2 and may not be denied even where the accused has previously escaped
detention, 3 or by reason of his prior absconding. 4 In order to safeguard the right of an accused
to bail, the Constitution further provides that "excessive bail shall not be required." This is logical
cause the imposition of an unreasonable bail may negate the very right itself. We have thus held
that "where conditions imposed upon a defendant seeking bail would amount to a refusal thereof
and render nugatory the constitutional right to bail, we would not hesitate to exercise our
supervisory powers to provide the required remedy." 5

Fortunately, the court is not without devices with which to meet the situation. First, it could
increase the amount of the bail bond to an appropriate level. Second, as part of the power of the
court over the person of the accused and for the purpose of discouraging likely commission of
other crimes by a notorious defendant while on provisional liberty, the latter could be required, as
one of the conditions of his bail bond, to report in person periodically to the court and make an
accounting of his movements. And third, the accused might be warned, though this warning is
not essential to the requirements of due process, that under the 1973 Constitution 8 "Trial may
proceed notwithstanding his absence provided that he has been duly notified and his failure to
appear is unjustified."

Coming to the issue at hand, the amount fixed for bail, while reasonable if considered in terms of
surety or property bonds, may be excessive if demanded in the form of cash. A surety or

With respect to the amount of the bail bond, the trial court is well advised to consider, inter alia,
the following factors, where applicable: (1) the ability of the accused to give bail: (2) the nature of

the offense; (3) the penalty for the offense charged; (4) the character and reputation of the
accused (5) the health of the accused; (6) the character and strength of the evidence; (7) the
probability of the accused's appearance or non-appearance at the trial; (8) forfeiture of previous
bonds; (9) whether the accused was a fugitive from justice when arrested; and (10) whether the
accused is under bond for appearance at trial in other cases. 9
It is not amiss, at this point, to remind all courts to exercise extreme care and caution in the
screening of bondsmen and sureties in regard to their reputation, solvency and promptitude.
Aside from the other precautions hitherto considered useful courts should see to it that all surety
bonds are accompanied by corresponding clearances from the Office of the Insurance
Commissioner. Bondsmen who cannot make good their undertaking render inutile all efforts at
making the bail system work in this jurisdiction.
2. Anent the second issue posed by the petitioner, the amendment of the information to include
allegations of habitual delinquency and recidivism, after a previous plea thereto by the accused,
is valid and in no way violates his right to be fully apprised before trial of the charges against
him.
Under section 13 of Rule 110 of the Rules of Court, the trial court has discretion to allow
amendments to the information on all matters of form after the defendant has pleaded and
during the trial when the same can be done without prejudice to the rights of the defendant.
What are prohibited at this stage of the proceedings are amendments in substance. And the
substantial matter in a complaint or information is the recital of facts constituting the offense
charged and determinative of the jurisdiction of the court. All other matters are merely of form.

10

Under our law, a person is considered a habitual delinquent "if within a period of ten years from
the date of his release or last conviction of the crimes of serious or less serious physical
injuries, robo, hurto, estafa orfalsification, he is found guilty of any of said crimes a third time or
oftener." 11 The law imposes an additional penalty based on the criminal propensity of the
accused apart from that provided by law for the last crime of which he is found guilty. Habitual
delinquency is not however, a crime in itself, it is only a factor in determining a total
penalty. 12 Article 62 of the Revised Penal Code which treats of habitual delinquency does not
establish a new crime, but only regulates the "effect of the attendance of mitigating or
aggravating circumstances and of habitual delinquency." as its caption indicates. In fact, the
provision on habitual delinquency is found in a section of the Code prescribing rules for the
application of penalties, not in a section defining offense. 13 A recidivist, upon the other hand, is
one who, at the time of his trial for one crime, shall have been previously convicted by final
judgment of another crime embraced in the same title of the Revised Penal Code. Recidivism is
likewise not a criminal offense; it is but one of the aggravating circumstances enumerated by the
said Code. 14
The additional allegations of habitual delinquency and recidivism do not have the effect of
charging another offense different or distinct from the charge of qualified theft (of a motor
vehicle) contained in the information. Neither do they tend to correct any defect in the jurisdiction
of the trial court over the subject-matter of the case. The said new allegations relate only to the
range of the penalty that the court might impose in the event of conviction. They do not alter the
prosecution's theory of the case nor possibly prejudice the form of defense the accused has or
will assume. Consequently, in authorizing the amendments, the respondent judge acted with due
consideration of the petitioner's rights and did not abuse his discretion.
Anent the petitioner's claim that the amendment of the information by the State places him in
double jeopardy, it should be remembered that there is double jeopardy only when all the

following requisites obtain in the original prosecution; (a) a valid complaint or information; (b) a
competent court; (c) the defendant had pleaded to the charge; and (d) the defendant was
acquitted, or convicted, or the case against him was dismissed or otherwise terminated without
his consent. 15
It is clear that the petitioner Almeda has not yet been convicted nor acquitted of the charge of
qualified theft of a motor vehicle contained in the original information. Neither has the case
against him been dismissed or otherwise terminated. The mere amendment of the information to
include allegations of habitual delinquency and recidivism does not have the effect of a dismissal
of the criminal action for qualified theft alleged in the original information.16
It cannot likewise be said that the accused is being placed in jeopardy a second time for the past
crimes of which he had been convicted. The constitutional objection, on the ground of double
jeopardy, to the statute providing an additional penalty to be meted out to habitual delinquents,
has long been rejected. 17
The procedure taken by the respondent fiscal and allowed by the respondent judge in the
amendment of the information does not, however, merit our approbation. Under section 2 of
Rule 15 of the Rules of Court, "all motions shall be made in writing except motions for
continuance made in the presence of the adverse party, or those made in the course of a
hearing or trial." A motion to amend the information, after the accused has pleaded thereto, is
certainly one that should be placed in writing and properly set for hearing. We are loath to give
our imprimatur to the kind of shortcut devised by the respondents, especially as it relates to an
alteration in the information. Considering, however, that the petitioner was not deprived of his
day in court and was in fact given advance warning of the proposed amendment, although orally,
we refrain from disturbing the said amendment.
ACCORDINGLY, the order of the respondent judge of February 18, 1970 denying the motion of
the petitioner Almeda that he be allowed to post a surety bond instead of a cash bond is hereby
set aside, without prejudice, however, to increasing the amount of the bail bond and/or the
imposition of such conditions as the respondent judge might consider desirable and proper for
the purpose of insuring the attendance of the petitioner at the trial, provided they are consistent
with the views herein expressed. No costs.

G.R. No. L-41077 April 28, 1983

PEOPLE OF THE PHILIPPINES, HON. LEO D. MEDIALDEA, in his capacity as Judge, Court
of First Instance of Rizal, Branch XXXVI, Makati, Rizal, and LILIA C. LOPEZ as State
Prosecutor, petitioners,
vs.

THE COURT OF APPEALS, SIXTO RUIZ, LUIS PADILLA and MAGSIKAP

ONGCHENCO, respondents.
The Solicitor General for petitioners.
Ambrosio Padilla Law Office for private respondents.

understanding to know what offense is charged and for the Court to

pronounce proper judgment; the names and surnames of the persons,
Ernesto Bello and Rogelio Bello, against whom the offenses were
committed are stated in the informations; and that both offenses were
committed on or about the 5th day of June, 1971, in the Municipality of
Mandaluyong, Province of Rizal, Philippines.
ACCORDINGLY, the motion to quash is hereby denied for lack of merit.

RELOVA, J.:
In our resolution of February 25, 1976, the petition for review filed by petitioners was treated as
a Special Civil Action. It seeks (1) to annul and set aside the decision and resolution, dated
December 18, 1974 and July 11, 1975, respectively, of the Court of Appeals: and, (2) to
sustain in toto the orders, dated January 25, 1974 and June 15, 1974, of the trial Judge which
allowed the retention of the allegation of conspiracy in reference to Criminal Cases Nos. 4747
and 4748 in the informations filed in Criminal Cases Nos. 9673 and 9674; or, in the alternative,
to direct the trial judge to allow the amendment of the informations in Criminal Cases Nos. 4747
and 4748 so as to include Luiz Padilla and Magsikap Ongchenco as co-accused of Sixto Ruiz
and to dismiss the informations in Criminal Cases Nos. 9673 and 9674.
As a result of a shooting incident at Sta. Lucia Street, Mandaluyong, Rizal, on June 5, 1971, two
informations for frustrated homicide were filed against Sixto Ruiz in the Court of First Instance of
Rizal on February 21, 1972. In Criminal Case No. 4747, Ernesto Bello was named as the victim,
while in Criminal Case No. 4748, Rogelio Bello was the complainant.
Upon arraignment, Sixto Ruiz pleaded "not guilty" to the two informations in said Criminal Cases
Nos. 4747 and 4748. However, a reinvestigation of these two cases was made in the then
Department of Justice, following which State Prosecutor Lilia C. Lopez filed a motion for leave of
court to amend the informations on the ground that the evidence disclosed a prima facie case
against Luis Padilla and Magsikap Ongchenco who acted in conspiracy with Sixto Ruiz.
Sixto Ruiz filed his opposition to the motion, while Luis Padilla and Magsikap Ongchenco
submitted their comment.
The trial Judge denied the motion to amend the information saying that allowance of the
amendment alleging conspiracy would be amending the manner of committing the crime and
thereby would constitute a substantial amendment.
As a consequence, State Prosecutor Lilia C. Lopez filed two new informations for frustrated
homicide against Luis Padilla and Magsikap Ongchenco (Criminal Cases Nos. 9673 and 9674)
alleging that the two conspired with Sixto Ruiz who was referred to as the accused in Criminal
Cases Nos. 4747 and 4748.

Likewise, Sixto Ruiz filed in said Criminal Cases Nos. 9673 and 9674 a motion to permit to
quash and/or strike out the allegation of conspiracy in the two informations. The trial Judge, on
June 15, 1974, ordered the striking out from the records the aforesaid motion and clarified that
"the allegation of conspiracy in those cases does not alter the theory of the case, nor does it
introduce innovation nor does it present alternative imputation nor is it inconsistent with the
original allegations. "
From these orders of the lower court, Sixto Ruiz, Luis Padilla and Magsikap Ongchenco went to
the Court of Appeals on a petition for certiorari with preliminary injunction (CA G.R. No. 03146SP) alleging that the trial Judge exceeded his jurisdiction or abused his judicial discretion in
issuing the orders, dated January 25, 1974 and June 15, 1974, in Criminal Cases Nos. 9673 and
9674.
The Court of Appeals rendered its decision, the dispositive portion of which reads as follows:
WHEREFORE, we hold that the -respondent Judge exceeded his
jurisdiction and/or abused his discretion in denying the motion of petitioner
Sixto Ruiz for permission to file a motion to strike out the allegation of
conspiracy in the informations filed in Criminal Cases Nos. 9673 and 9674
(CA Rollo, p. 89), in striking out from the records the motion of petitioner
Sixto Ruiz to strike out the allegation of conspiracy inserted in the
informations filed in Criminal Cases Nos. 9673 and 9674 (Ibid., p. 93), and
in denying the motion for reconsideration filed by the petitioners, Luis Padilla
and Magsikap Ongchenco (Ibid., p. 81).
Accordingly, the petition for certiorari is hereby granted and the questioned
orders of the respondent court dated January 25, 1974 and June 15, 1974
(Annexes K and Q, CA Rollo, pp. 76, 107) are partially annulled and set
aside insofar as the petitioner Sixto Ruiz is concerned. The allegation of
conspiracy implicating Sixto Ruiz and the reference to Criminal Cases Nos.
4748 and 4747 in the informations filed in Criminal Cases Nos. 9673 and
9674, respectively, are hereby ordered deleted and stricken out of the said
informations and records of the said cases.

Padilla and Ongchenco moved to quash the two new informations. The motion was denied by
the lower court in its order of January 25, 1974, saying:

The motion for reconsideration filed by herein petitioners to the foregoing decision, dated
December 18, 1974 of the Court of Appeals was denied "for lack of merit" in its resolution, dated
July 11, 1975.

[T]he informations in the above-entitled cases state the names of the

accused Luis Padilla and Magsikap Ongchenco; the offense of frustrated
homicide is clearly designated in each information; the acts or omissions
constituting the offense charged are stated in ordinary and concise
language without repetition sufficient to enable a person of common

There is merit in this special civil action. The trial Judge should have allowed the amendment in
Criminal Cases Nos. 4747 and 4748 considering that the amendments sought were only formal.
As aptly stated by the Solicitor General in his memorandum, "there was no change in the
prosecution's theory that respondent Ruiz wilfully, unlawfully and feloniously attacked, assaulted

and shot with a gun Ernesto and Rogelio Bello ... . The amendments would not have been
prejudicial to him because his participation as principal in the crime charged with respondent
Ruiz in the original informations, could not be prejudiced by the proposed amendments."

of conspiracy and the reference to Criminal Cases Nos. 4747 and 4748 in the informations filed
in Criminal Cases Nos. 9673 and 9674, are SUSTAINED.
SO ORDERED.

In a case (Regala vs. CFI, 77 Phil. 684), the defendant was charged with murder. After plea, the
fiscal presented an amended information wherein two other persons were included as coaccused. There was further allegation that the accused and his co-defendants had conspired
and confederated together and mutually aided one another to commit the offense charged. The
amended information was admitted, following which the fiscal sought the discharge of the two
other co-defendants in order to utilize them as prosecution witnesses. The court granted the
discharge. His appeal having been denied as well as his motion for reconsideration of the denial
of the appeal, defendant filed a petition for a writ of certiorari. It was alleged that the admission
of the amendment was an abuse of discretion. This Court held:
La inclusion de dos acusados y la adicion de las palabras: 'by conspiring,
confederating and helping one another' en la querella enmendada es una
enmienda de forma. En la primera querella se acusa al recurrente de autor
y en la enmendada de coautor pero su responsabilidad es la misma en
ambas. El cambio solo se refiere a la forma de ejecucion del delito; pero no
a la sustancia del delito mismo. La forma de ejecucion es mas bien materia
de pruebas y no de algaciones, y los detalles alegados en la querella
enmendada pudieron haberse probado bajo la querella original.
Otherwise stated, the amendments of Criminal Cases Nos. 4747 and 4748 would not have
prejudiced Ruiz whose participation as principal in the crimes charged did not change. When the
incident was investigated by the fiscal's office, the respondents were Ruiz, Padilla and
Ongchenco. The fiscal did not include Padilla and Ongchenco in the two informations because of
"insufficiency of evidence." It was only later when Francisco Pagcalinawan testified at the
reinvestigation that the participation of Padilla and Ongchenco surfaced and, as a consequence,
there was the need for the amendment of the informations or the filing of new ones against the
two.
The fact that the trial court denied the motion of the prosecution to amend the informations in
Criminal Cases Nos. 4747 and 4748 was no bar to the filing of the new informations. The
allegation in Criminal Cases Nos. 9673 and 9674 filed against Luis Padilla and Magsikap
Ongchenco that the two conspired and confederated with Sixto Ruiz merely describe the fact
that the latter was already charged with the same offense. It is only a reference to the two cases
already filed against Ruiz wherein he alone stands as the defendant. It does not make Ruiz a
co-defendant of Padilla and Ongchenco in the two new informations. It is incorrect to say that
the allegation of conspiracy in Criminal Cases Nos. 9673 and 9674 include Ruiz as a defendant
in the said cases. In fact, and as aptly observed by the petitioners, the lower court did not order
the arrest of Sixto Ruiz in Criminal Cases Nos. 9673 and 9674. Padilla and Ongchenco were the
only ones against whom warrants were issued; nor was he arraigned in said cases. Padilla and
Ongchenco were the only ones arraigned and they pleaded not guilty.

Teehankee (Chairman), Melencio-Herrera Plana, JJ., concur.

Gutierrez, Jr., J., took no part.

Separate Opinions
Vasquez, J., concurring:
I concurr in the result. The complications that arose in this case could have been avoided if the
trial granted, as he should have, the motion of Special Prosecutor Lopez to amend the two
informations in CC Nos. 4747 and 4748 so as to include Padilla and Ongchenco as co-accused
of Ruiz, and in conspiracy with the latter. The effect would be the same as the result upheld in
the main opinion, if all the cases win be consolidated for joint trial.

G.R. No. 83754 February 18, 1991

TEODORO B. CRUZ, JR., petitioner,
vs.
COURT OF APPEALS, Fifteenth Division, respondents.
CRUZ, J.:

Thus, inasmuch as Ruiz is not a defendant in Criminal Cases Nos. 9673 and 9674, he can not
file a motion to quash the same. He has no personality or standing in said cases and, therefore,
it was improper for him to have filed the motion to quash.
ACCORDINGLY, the decision and resolution, dated December 18, 1974 and July 11, 1975,
respectively, of the Court of Appeals are hereby SET ASIDE. Furthermore, the orders of the
lower court, dated January 25, 1974 and June 15, 1974, allowing the retention of the allegation

Petitioner Teodoro D. Cruz, Jr. raises procedural issues in this petition to review the decision of
the respondent Court of Appeals in C.A.-G.R. SP No. 11771 dated April 29, 1988, and its
resolution of June 6, 1988, denying his motion for reconsideration.
The petitioner was charged before the Regional Trial Court of Makati, along with several others,
in four separate informations for estafa thru falsification of public documents.

It was alleged that the petitioner, together with Melania Guerrero, who produced a special power
of attorney claimed establish have been executed by the late Clemente Guerrero, had conspired
with their co-accused in selling some properties of the decedent to the widow's sister, Luz
Andico, through fictitious deeds of sale notarized by the petitioner sometime in November and
December of 1980.
Upon arraignment on June 1, 1984, the petitioner and his co-accused entered a plea of not
guilty. Subsequently, the petitioner filed a motion to dismiss on the ground that the four
informations "(did) not charge an offense." At the hearing on this motion, the petitioner submitted
testimonial and documentary evidence which was not refuted by the prosecution. For its part,
the prosecution submitted no evidence at an but later moved to deny the motion.
The motion to dismiss-to was eventually denied by the trial court, 1 as so was the subsequent
motion for reconsideration. 2 The petitioner questioned the denial of the motions before this
Court, which referred the case to the Court of Appeals. On April 29, 1988, the respondent
courts 3 dismissed the petition, holding inter alia as follows:
Petitioner unabashedly admits that the motion to dismiss in the instant
criminal cases was filed after the arraignment so that the cases could not be
refiled again considering the principle of double jeopardy. But this precisely
begs the issue. The respondent Court, then presided over by Judge
Madayag, cited as ground of the denial of the motion to dismiss to avoid
technicalities that may arise later. This is interrelated to the first ground in
the denial interest of substantial justice that the prosecution could
adduce evidence during the trial. Thus, to hold otherwise is to sanction a
shrewd maneuver by petitioner wherein he files a motion to quasi/dismiss
after arraignment, presents his evidence supporting his ground therefor, and
without the State being able to present its evidence in chief. Under the
circumstances, what is needed is a full-blown hearing.
xxx xxx xxx
Moreover, assuming that the procedure pursued by the petitioner in outright
presenting his evidence in support of his motion to dismiss, although the
prosecution has not as yet presented its evidence in chief is sanctioned by
the Rules, still the respondent Court, under the circumstances, did not
abuse its discretion in denying the motion to dismiss and subsequently, the
motion for reconsideration. Respondent Court must have been not
convinced of the evidence presented, hence, its judicial prerogative to deny
the dismissal of the charges.
What is essential and important is for the petitioner to show by his own
evidence that the documents, subject of the charges, were prepared and
notarized by him clearly prior to the death of Clemente Guerrero on June
24, 1980 and not simply prior to the months of November and December,
1980 when the offense was committed, as alleged in the Information
because each Information may be amended as regards the date of the
commission of the offense without impairing the rights of the petitioner
(People v. Gerardo Rivera, et al., 33 SCRA 746). The amendment will only
be a matter of form and will not "affect the nature and essence of the crime
as only charged."

The petitioner is now before us on certiorari and faults the above-quoted decision on the
following grounds:
(1) The court proceedings on petitioner's motion to dismiss are clearly
sanctioned by law and jurisprudence.
(2) The prosecution is in estoppel to question said proceedings.
(3) The informations do not charge an offense.
(4) There exists a variance between the allegations in the information and
the evidence presented in the motion to dismiss.
(5) The documents were notarized on their stated dates.
(6) Substantial justice demands the dismissal of the informations filed
against herein petitioner.
The petition must fail.
It is axiomatic that a complaint or information must state every single fact necessary to constitute
the offense charged; otherwise, a motion to dismiss/quash on the ground that it charges no
offense may be properly sustained. The fundamental test in considering a motion to quash on
this ground is whether the facts alleged, if hypothetically admitted, will establish the essential
elements of the offense as defined in the law. 4
Contrary to the petitioner's contention, a reading of the informations will disclose that the
essential elements of the offense charged are sufficiently alleged. It is not proper therefore to
resolve the charges at the very outset, in a preliminary hearing only and without the benefit of a
full-blown trial. The issues require a fuller examination. Given the circumstances of this case, we
feel it would be unfair to shut off the prosecution at this stage of the proceedings and to dismiss
the informations of the basis only of the petitioner's evidence, such as it is.
It is clear that the trial judge did not commit grave abuse of discretion when he denied the
motion to dismiss on the grounds that "(a) interest of substantial justice that the prosecution
could adduce evidence during the trial; and (b) to avoid technicalities that may arise later." 5 On
the contrary, his action was authorized under U.S. v. Barredo, 6 where this Court said:
Upon a motion of the provincial fiscal to dismiss a complaint upon which an
accused person has been remanded for trial by a justice of the peace, it
rests in the sound discretion of the judge whether to accede to such motion
or not. Ordinarily, of course, he will dismiss the action in accordance with
the suggestion of an experienced fiscal who has personally investigated the
facts. But if he is not satisfied with the reason assigned by the fiscal, or if it
appears to him from the record of the proceedings in the court of the justice
of the peace, or as a result of information furnished by the private
prosecutor, or otherwise, that the case should not be dismissed, he may
deny the motion.

Indeed, as pointed out by the Solicitor General, this denial was proper because the petitioner
failed to controvert in his motion to dismiss the following substantial circumstances alleged in the
affidavit complaint:
(1) That the vendee, Luz Andico (sister of the accused Melania Guerrero),
has no visible means to purchase said properties;
(2) That the capital gains taxes for the alleged sales were paid only in
December 1980, when it should have been paid within 30 days from the
date of the sale (National Internal Revenue Code);
(3) That the Deeds of Sale were presented for registration to the registries
concerned only in November and December, 1980;
(4) That the antedating of the documents was made possible by the fact that
notary public Teodoro B. Cruz, Jr. (herein petitioner) as late as March, 1981
had not submitted his notarial report together with the copies of the
documents he notarized for 1980.
The petitioner's contention that the questioned transactions were already in existence before the
months of November and December 1980, when they were supposedly falsified, is a matter of
defense best examined during the trial rather than in the preliminary hearing on his motion to
dismiss. The prosecution should be given ample opportunity to prove the allegations in the
informations at the appropriate time, and that is the trial itself. The proper time to offer it,
following the normal procedure prescribed in Rule 119, Section 3 of the Rules of Court, is after
the prosecution shall have presented its pay evidence during the trial. This is in accord
,with People v.Cadabis, 7 where this Court held:
Save where the Rules expressly permit the investigation of facts alleged in a
motion to quash, the general principle is that in the hearing of such motion
only such facts as are alleged in the information, and those admitted by the
fiscal, should be taken into account in the resolution thereof.Matters of
defense can not be produced during the hearing of such motions, except
where the rules expressly permit, such as extinction of criminal liability,
prescription and former jeopardy. (Emphasis supplied).
But we do not agree with the ruling of the respondent court that the motion to quash should have
been filed before the petitioner and his co-accused were arraigned, conformably to Section 1 of
Rule 117 of the Rules of Court, which provides:
Sec. 1. Time to move to quash. At any time before entering his plea, the
accused may move to quash the complaint or information.
It is true that a person who does not move to quash a complaint or information until after he has
pleaded is deemed to have waived all objections then available which are grounds of a motion to

quash. 8 However, this is subject to exception. By express provision of Sec. 8 of the same rule,
failure to assert certain grounds in a motion to quash filed prior to the plea does not operate as a
waiver of the right to invoke them later. Even after arraignment, a motion to dismiss the
information may be filed if it is based on the ground that: (a) the information charges no offense;
(b) the trial court has no jurisdiction; (c) the penalty or the offense has been extinguished; and
(d) that double jeopardy has attached.
The petitioner contends that the prosecution is now estopped from questioning the motion to
dismiss, having participated without objection in the hearing thereof and not having controverted
the evidence adduced by the movant at that time. This is untenable. Estoppel does not he
against the government because of the supposedly mistaken acts or omissions of its agents. As
we declared in People v. Castaeda, 9 "there is the long familiar rule that erroneous application
and enforcement of the law by public officers do not block subsequent correct application of the
statute and that the government is never estopped by mistake or error on the part of its agents."
It remains to observe that an order denying a motion to quash is interlocutory and therefore not
appealable, nor can it be the subject of a petition for certiorari. Such order may only be reviewed
in the ordinary course of law by an appeal from the judgment after trial. The petitioner should
have proceeded with the trial of the case in the court below, without prejudice to his right, if final
judgment is rendered against him, to raise the same question before the proper appellate court.
The procedure was well defined in Acharon v. Purisima, 10 thus:. . . Moreover, when the motion
to quash filed by Acharon to nullify the criminal cases filed against him was denied by the
Municipal Court of General Santos his remedy was not to file a petition forcertiorari but to go to
trial without prejudice on his part to reiterate the special defenses he had invoked in his motion
and, if, after trial on the merits, an adverse decision is rendered, to appeal therefrom in the
manner authorized by law. This is the procedure that he should have followed as authorized by
law and precedents. Instead, he took the usual step of filing a writ of certiorari before the Court
of First Instance which in our opinion is unwarranted it being contrary to the usual course of law.
Where it is clear that the information does not really charge an offense, the case against the
accused must be dropped immediately instead of subjecting him to the anxiety and
inconvenience of a useless trial. The accused is entitled to such consideration. And indeed, even
the prosecution will benefit from such a dismissal because it can then file a corrected information
provided the accused had not yet pleaded and jeopardy has not yet attached. There is no point
in proceeding under a defective information that can never be the basis of a valid conviction. But
such is not the situation in the case at bar. As already observed, the challenged informations are
not insufficient on their face and neither did the evidence presented at the preliminary hearing
justify their dismissal even before the trial had commenced. If "substantial justice" is to be
accorded by this Court, as the petitioner insists, then the step it must take is to sustain the denial
of the motion to dismiss and allow the criminal cases to follow their normal course. That is what
we rule now.
WHEREFORE, the petition is DENIED. Criminal Cases Nos. 7332, 7333, 7334 and 7335 are
remanded to the Regional Trial Court of Makati, Branch 145, for further proceedings. Costs
against the petitioner.