PAGE 29 The fact is that both majority and minority

DIGEST reports were one in rejecting the military version

#25.GALMAN VS. SANDIGANBAYAN [144 SCRA 43; stating that "the evidence shows to the contrary
G.R. NO.72670; 12 SEP 1986] that Rolando Galman had no subversive
affiliations. Only the soldiers in the staircase with
Facts: Sen. Aquino could have shot him; that Ninoy's
assassination was the product of a military
Assassination of former Senator Benigno "Ninoy" conspiracy, not a communist plot. Only
Aquino, Jr. He was killed from his plane that difference between the two reports is that the
had just landed at the Manila International majority report found all the twenty-six private
Airport. His brain was smashed by a bullet fired respondents above-named in the title of the
point-blank into the back of his head by an case involved in the military conspiracy; " while
assassin. The military investigators reported within the chairman's minority report would exclude
a span of three hours that the man who shot nineteen of them. Then Pres. Marcos stated that
Aquino (whose identity was then supposed to evidence shows that Galman was the killer.
be unknown and was revealed only days later Petitioners pray for issuance of a TRO enjoining
as Rolando Galman) was a communist-hired respondent court from rendering a decision in
gunman, and that the military escorts gunned the two criminal cases before it, the Court
him down in turn. President was constrained to resolved by nine-to-two votes 11 to issue the
create a Fact Finding Board to investigate due restraining order prayed for. The Court also
to large masses of people who joined in the granted petitioners a five-day period to file a
ten-day period of national mourning yearning reply to respondents' separate comments and
for the truth, justice. and freedom. respondent Tanodbayan a three-day period to
submit a copy of his 84page memorandum for denied petitioners' motion for reconsideration for
the prosecution. But ten days later, the Court by lack of merit. Hence, petitioners filed their
the same nine-to-two-vote ratio in reverse, motion to admit their second motion for
resolved to dismiss the petition and to lift the reconsideration alleging that respondents
TRO issued ten days earlier enjoining the committed serious irregularities constituting
Sandiganbayan from rendering its decision. The mistrial and resulting in miscarriage of justice
same Court majority denied petitioners' motion and gross violation of the constitutional rights of
for a new 5-day period counted from receipt of the petitioners and the sovereign people of the
respondent Tanodbayan's memorandum for the Philippines to due process of law.
prosecution (which apparently was not served
on them). Thus, petitioners filed a motion for Issue: Whether or not petitioner was deprived
reconsideration, alleging that the dismissal did of his rights as an accused. Whether or not
not indicate the legal ground for such action there was a violation of the double jeopardy
and urging that the case be set for a full clause.
hearing on the merits that the people are
entitled to due process. However, respondent Held:
Sandiganbayan issued its decision acquitting all
the accused of the crime charged, declaring Petitioners' second motion for reconsideration is
them innocent and totally absolving them of granted and ordering a re-trial of the said
any civil liability. Respondents submitted that cases which should be conducted with
with the Sandiganbayan's verdict of acquittal, deliberate dispatch and with careful regard for
the instant case had become moot and the requirements of due process. Deputy
academic. Thereafter, same Court majority Tanodbayan Manuel Herrera (made his expose
15 months later when former Pres. was no after an agreement was reached, Pres. Marcos
longer around) affirmed the allegations in the told them 'Okay, mag moro-moro na lamang
second motion for reconsideration that he kayo;' and that on their way out of the room
revealed that the Sandiganbayan Justices and Pres. Marcos expressed his thanks to the group
Tanodbayan prosecutors were ordered by and uttered 'I know how to reciprocate'. The
Marcos to whitewash the Aquino-Galman murder Court then said that the then President (code-
case. Malacañang wanted dismissal to the named Olympus) had stage-managed in and
extent that a prepared resolution was sent to from Malacañang Palace "a scripted and
the Investigating Panel. Malacañang predetermined manner of handling and
Conference planned a scenario of trial where disposing of the Aquino-Galman murder case;"
the former President ordered then that the and that "the prosecution in the Aquino-Galman
resolution be revised by categorizing the case and the Justices who tried and decided
participation of each respondent; decided that the same acted under the compulsion of some
the presiding justice, Justice Pamaran, (First pressure which proved to be beyond their
Division) would personally handle the trial. A capacity to resist. Also predetermined the final
conference was held in an inner room of the outcome of the case" of total absolution of the
Palace. Only the First Lady and Presidential twenty-six respondents-accused of all criminal
Legal Assistant Justice Lazaro were with the and civil liability. Pres. Marcos came up with a
President. The conferees were told to take the public statement aired over television that
back door in going to the room where the Senator Aquino was killed not by his military
meeting was held, presumably to escape notice escorts, but by a communist hired gun. It was,
by the visitors in the reception hall waiting to therefore, not a source of wonder that President
see the President. During the conference, and Marcos would want the case disposed of in a
manner consistent with his announced theory civilian jail. The monitoring of proceedings and
thereof which, at the same time, would clear developments from Malacañang and by
his name and his administration of any Malacañang personnel The partiality of
suspected guilty participation in the Sandiganbayan betrayed by its decision: That
assassination. such a procedure would be a President Marcos had wanted all of the twenty-
better arrangement because, if the accused are six accused to be acquitted may not be
charged in court and subsequently acquitted, denied. In rendering its decision, the
they may claim the benefit of the doctrine of Sandiganbayan overdid itself in favoring the
double jeopardy and thereby avoid another presidential directive. Its bias and partiality in
prosecution if some other witnesses shall appear favor of the accused was clearly obvious. The
when President Marcos is no longer in office. evidence presented by the prosecution was
More so was there suppression of vital evidence totally ignored and disregarded. The record
and harassment of witnesses. The disappearance shows that the then President misused the
of witnesses two weeks after Ninoy's overwhelming resources of the government and
assassination. According to J. Herrera, "nobody his authoritarian powers to corrupt and make a
was looking for these persons because they mockery of the judicial process in the
said Marcos was in power. The assignment of AquinoGalman murder cases. "This is the evil of
the case to Presiding Justice Pamaran; no one-man rule at its very worst." Our Penal Code
evidence at all that the assignment was indeed penalizes "any executive officer who shall
by virtue of a regular raffle, except the address any order or suggestion to any judicial
uncorroborated testimony of Justice Pamaran authority with respect to any case or business
himself. The custody of the accused and their coming within the exclusive jurisdiction of the
confinement in a military camp, instead of in a courts of justice." Impartial court is the very
essence of due process of law. This criminal reconsideration of the abrupt dismissal of their
collusion as to the handling and treatment of petition and lifting of the TRO enjoining the
the cases by public respondents at the secret Sandiganbayan from rendering its decision had
Malacañang conference (and revealed only been taken cognizance of by the Court which
after fifteen months by Justice Manuel Herrera) had required the respondents', including the
completely disqualified respondent Sandiganbayan's, comments. Although no
Sandiganbayan and voided ab initio its verdict. restraining order was issued anew, respondent
The courts would have no reason to exist if Sandiganbayan should not have precipitately
they were allowed to be used as mere tools of issued its decision of total absolution of all the
injustice, deception and duplicity to subvert and accused pending the final action of this Court.
suppress the truth. More so, in the case at bar All of the acts of the respondent judge manifest
where the people and the world are entitled to grave abuse of discretion on his part amounting
know the truth, and the integrity of our judicial to lack of jurisdiction which substantively
system is at stake. There was no double prejudiced the petitioner. With the declaration of
jeopardy. Courts' Resolution of acquittal was a nullity of the proceedings, the cases must now
void judgment for having been issued without be tried before an impartial court with an
jurisdiction. No double jeopardy attaches, unbiased prosecutor. Respondents accused must
therefore. A void judgment is, in legal effect, no now face trial for the crimes charged against
judgment at all. By it no rights are divested. It them before an impartial court with an
neither binds nor bars anyone. All acts and all unbiased prosecutor with all due process. The
claims flowing out of it are void. Motion to function of the appointing authority with the
Disqualify/Inhibit should have been resolved mandate of the people, under our system of
ahead. In this case, petitioners' motion for government, is to fill the public posts. Justices
and judges must ever realize that they have no MOJICA SGT. PEPITO TORIO, SGT. PROSPERO BONA
constituency, serve no majority nor minority but AND AlC ANICETO ACUPIDO, respondents.
serve only the public interest as they see it in
accordance with their oath of office, guided G.R. Nos. 71212-13August 30, 1985
only the Constitution and their own conscience
and honor. PEOPLE OF THE PHILIPPINES, represented by the
TANODBAYAN (OMBUDSMAN), petitioner,
vs.
THE SANDIGANBAYAN, GENERAL FABIAN C. VER,
FULL CASE MAJOR GEN. PROSPERO OLIVAS, SGT. PABLO
MARTINEZ, SGT. TOMAS FERNANDEZ, SGT. LEONARDO
G.R. Nos. 71208-09August 30, 1985 MOJICA, SGT. PEPITO TORIO, SGT. PROSPERO BONA
AND AIC ANICETO ACUPIDO, respondents.
SATURNINA GALMAN AND REYNALDO GALMAN,
petitioners,
vs. CUEVAS, JR., J.:
THE HONORABLE PRESIDING JUSTICE MANUEL
PAMARAN AND ASSOCIATE JUSTICES AUGUSTO On August 21, 1983, a crime unparalleled in
AMORES AND BIENVENIDO VERA CRUZ OF THE repercussions and ramifications was committed
SANDIGANBAYAN, THE HONORABLE BERNARDO inside the premises of the Manila International Airport
FERNANDEZ, TANODBAYAN, GENERAL FABIAN C. VER, (MIA) in Pasay City. Former Senator Benigno S.
MAJOR GENERAL PROSPERO OLIVAS, SGT. PABLO Aquino, Jr., an opposition stalwart who was returning
MARTINEZ, SGT. TOMAS FERNANDEZ, SGT. LEONARDO to the country after a long-sojourn abroad, was
gunned down to death. The assassination rippled Fernandez, Sgt. Leonardo Mojica, Sgt. Pepito Torio,
shock-waves throughout the entire country which Sgt. Prospero Bona and AIC Aniceto Acupido. 4
reverberated beyond the territorial confines of this
Republic. The after-shocks stunned the nation even UPON termination of the investigation, two (2) reports
more as this ramified to all aspects of Philippine were submitted to His Excellency, President
political, economic and social life. Ferdinand E. Marcos. One, by its Chairman, the Hon.
Justice Corazon Juliano Agrava; and another one,
To determine the facts and circumstances jointly authored by the other members of the Board
surrounding the killing and to allow a free, unlimited — namely: Hon. Luciano Salazar, Hon. Amado Dizon,
and exhaustive investigation of all aspects of the Hon. Dante Santos and Hon. Ernesto Herrera. 'the
tragedy, 1 P.D. 1886 was promulgated creating an reports were thereafter referred and turned over to
ad hoc Fact Finding Board which later became more the TANODBAYAN for appropriate action. After
popularly known as the Agrava Board. 2 Pursuant to conducting the necessary preliminary investigation,
the powers vested in it by P.D. 1886, the Board the TANODBAYAN 5 filed with the SANDIGANBAYAN
conducted public hearings wherein various witnesses two (2) Informations for MURDER-one for the killing of
appeared and testified and/or produced Sen. Benigno S. Aquino which was docketed as
documentary and other evidence either in Criminal Case No. 10010 and another, criminal Case
obedience to a subpoena or in response to an No. 10011, for the killing of Rolando Galman, who
invitation issued by the Board Among the witnesses was found dead on the airport tarmac not far from
who appeared, testified and produced evidence the prostrate body of Sen. Aquino on that same
before the Board were the herein private fateful day. In both criminal cases, private
respondents General Fabian C. Ver, Major General respondents were charged as accessories, along
Prospero Olivas, 3 Sgt. Pablo Martinez, Sgt. Tomas with several principals, and one accomplice.
 Petitioner TANODBAYAN opposed said motions
Upon arraignment, all the accused, including the contending that the immunity relied upon by the
herein private ate Respondents pleaded NOT GUILTY. private respondents in support of their motions to
exclude their respective testimonies, was not
In the course of the joint trial of the two (2) available to them because of their failure to invoke
aforementioned cases, the Prosecution represented their right against self-incrimination before the ad
by the Office of the petition TANODBAYAN, marked hoc Fact Finding Board. 9 Respondent
and thereafter offered as part of its evidence, the SANDIGANBAYAN ordered the TANODBAYAN and
individual testimonies of private respondents before the private respondents to submit their respective
the Agrava Board. 6 Private respondents, through memorandum on the issue after which said motions
their respective counsel objected to the admission of will be considered submitted for resolution. 10
said exhibits. Private respondent Gen. Ver filed a
formal "Motion to Exclude Testimonies of Gen. Fabian On May 30, 1985, petitioner having no further
C. Ver before the Fact Finding Board as Evidence witnesses to present and having been required to
against him in the above-entitled cases" 7 make its offer of evidence in writing, respondent
contending that its admission will be in derogation of SANDIGANBAYAN, without the pending motions for
his constitutional right against self-incrimination and exclusion being resolved, issued a Resolution
violative of the immunity granted by P.D. 1886. He directing that by agreement of the parties, the
prayed that his aforesaid testimony be rejected as pending motions for exclusion and the opposition
evidence for the prosecution. Major Gen. Olivas and thereto, together with the memorandum in support
the rest of the other private respondents likewise filed thereof, as well as the legal issues and arguments,
separate motions to exclude their respective raised therein are to be considered jointly in the
individual testimonies invoking the same ground. 8 Court's Resolution on the prosecution's formal offer of
exhibits and other documentary evidences.11 On amendment and/or setting aside of the challenged
June 3, 1985, the prosecution made a written "Formal Resolution on the ground that it was issued without
Offer of Evidence" which includes, among others, the jurisdiction and/or with grave abuse of discretion
testimonies of private respondents and other amounting to lack of jurisdiction. Private prosecutor
evidences produced by them before the Board, all below, as counsel for the mother of deceased
of which have been previously marked in the course Rolando Galman, also filed a separate petition for
of the trial.12 certiorari 15 on the same ground. Having arisen from
the same factual beginnings and raising practically
All the private respondents objected to the Identical issues, the two (2) petitioners were
prosecution's formal offer of evidence on the same consolidated and will therefore be jointly dealt with
ground relied upon by them in their respective and resolved in this Decision.
motion for exclusion.
The crux of the instant controversy is the admissibility
On June 13, 1985, respondent SANDIGANBAYAN in evidence of the testimonies given by the eight (8)
issued a Resolution, now assailed in these two (2) private respondents who did not invoke their rights
petitions, admitting all the evidences offered by the against self-incrimination before the Agrava Board.
prosecution except the testimonies and/or other
evidence produced by the private respondents in It is the submission of the prosecution, now
view of the immunity granted by P.D. 1886. 13 represented by the petitioner TANODBAYAN, that
said testimonies are admissible against the private
Petitioners' motion for the reconsideration of the said respondents, respectively, because of the latter's
Resolution having been DENIED, they now come failure to invoke before the Agrava Board the
before Us by way of certiorari 14 praying for the immunity granted by P.D. 1886. Since private
respondents did not invoke said privilege, the the same did nothing to ease the burden of laying
immunity did not attach. Petitioners went further by down the criteria upon which this Court will
contending that such failure to claim said henceforth build future jurisprudence on a heretofore
constitutional privilege amounts to a waiver thereof. unexplored area of judicial inquiry. In carrying out this
16 The private respondents, on the other hand, claim monumental task, however, We shall be guided, as
that notwithstanding failure to set up the privilege always, by the constitution and existing laws.
against self- incrimination before the Agrava Board,
said evidences cannot be used against them as The Agrava Board, 18 came into existence in
mandated by Section 5 of the said P.D. 1886. They response to a popular public clamor that an
contend that without the immunity provided for by impartial and independent body, instead of any
the second clause of Section 5, P.D. 1886, the legal ordinary police agency, be charged with the task of
compulsion imposed by the first clause of the same conducting the investigation. The then early
Section would suffer from constitutional infirmity for distortions and exaggerations, both in foreign and
being violative of the witness' right against self- local media, relative to the probable motive behind
incrimination. 17 Thus, the protagonists are locked in the assassination and the person or persons
horns on the effect and legal significance of failure responsible for or involved in the assassination
to set up the privilege against self-incrimination. hastened its creation and heavily contributed to its
early formation. 19
The question presented before Us is a novel one.
Heretofore, this Court has not been previously called Although referred to and designated as a mere Fact
upon to rule on issues involving immunity statutes. The Finding Board, the Board is in truth and in fact, and to
relative novelty of the question coupled with the all legal intents and purposes, an entity charged, not
extraordinary circumstance that had precipitated only with the function of determining the facts and
circumstances surrounding the killing, but more "any person called to testify before the Board the
importantly, the determination of the person or right to counsel at any stage of the proceedings." 20
persons criminally responsible therefor so that they Considering the foregoing environmental settings, it
may be brought before the bar of justice. For indeed, cannot be denied that in the course of receiving
what good will it be to the entire nation and the evidence, persons summoned to testify will include
more than 50 million Filipinos to know the facts and not merely plain witnesses but also those suspected
circumstances of the killing if the culprit or culprits will as authors and co-participants in the tragic killing.
nevertheless not be dealt with criminally? This And when suspects are summoned and called to
purpose is implicit from Section 12 of the said testify and/or produce evidence, the situation is one
Presidential Decree, the pertinent portion of which where the person testifying or producing evidence is
provides — undergoing investigation for the commission of an
offense and not merely in order to shed light on the
SECTION 12. The findings of the Board shall be made facts and surrounding circumstances of the
public. Should the findings warrant the prosecution of assassination, but more importantly, to determine the
any person, the Board may initiate the filing of proper character and extent of his participation therein.
complaint with the appropriate got government
agency. ... (Emphasis supplied) Among this class of witnesses were the herein private
respondents, suspects in the said assassination, all of
The investigation therefor is also geared, as any other whom except Generals Ver and Olivas, were
similar investigation of its sort, to the ascertainment detained (under technical arrest) at the time they
and/or determination of the culprit or culprits, their were summoned and gave their testimonies before
consequent prosecution and ultimately, their the Agrava Board. This notwithstanding, Presidential
conviction. And as safeguard, the P.D. guarantees Decree No. 1886 denied them the right to remain
silent. They were compelled to testify or be witnesses
against themselves. Section 5 of P.D. 1886 leave ... Any person under investigation for the commission
them no choice. They have to take the witness stand, of an offense shall have the right to remain and to
testify or produce evidence, under pain of contempt counsel, and to be informed of such right. ... 22
if they failed or refused to do so. 21 The jeopardy of (Emphasis supplied)
being placed behind prison bars even before
conviction dangled before their very eyes. Similarly, Since the effectivity of the 1973 Constitution, we now
they cannot invoke the right not to be a witness have a mass of jurisprudence 23 on this specific
against themselves, both of which are sacrosantly portion of the subject provision. In all these cases, it
enshrined and protected by our fundamental law. has been categorically declared that a person
21-a Both these constitutional rights (to remain silent detained for the commission of an offense
and not to be compelled to be a witness against undergoing investigation has a right to be informed
himself) were right away totally foreclosed by P.D. of his right to remain silent, to counsel, and to an
1886. And yet when they so testified and produced admonition that any and all statements to be given
evidence as ordered, they were not immune from by him may be used against him. Significantly
prosecution by reason of the testimony given by however, there has been no pronouncement in any
them. of these cases nor in any other that a person similarly
undergoing investigation for the commission of an
Of course, it may be argued is not the right to remain offense, if not detained, is not entitled to the
silent available only to a person undergoing constitutional admonition mandated by said Section
custodial interrogation? We find no categorical 20, Art. IV of the Bill of Rights.
statement in the constitutional provision on the
matter which reads:
The fact that the framers of our Constitution did not offense, the very evidence with which to prosecute
choose to use the term "custodial" by having it and thereafter convict him. This is the lamentable
inserted between the words "under" and situation we have at hand.
investigation", as in fact the sentence opens with the
phrase "any person " goes to prove that they did not All the private respondents, except Generals Ver and
adopt in toto the entire fabric of the Miranda Olivas, are members of the military contingent that
doctrine. 24 Neither are we impressed by petitioners' escorted Sen. Aquino while disembarking from the
contention that the use of the word "confession" in plane that brought him home to Manila on that
the last sentence of said Section 20, Article 4 fateful day. Being at the scene of the crime as such,
connotes the Idea that it applies only to police they were among the first line of suspects in the
investigation, for although the word "confession" is subject assassination. General Ver on the other hand,
used, the protection covers not only "confessions" but being the highest military authority of his co-
also "admissions" made in violation of this section. petitioners labored under the same suspicion and so
They are inadmissible against the source of the with General Olivas, the first designated investigator
confession or admission and against third person. 25 of the tragedy, but whom others suspected, felt and
believed to have bungled the case. The papers,
It is true a person in custody undergoing investigation especially the foreign media, and rumors from
labors under a more formidable ordeal and graver uglywagging tongues, all point to them as having, in
trying conditions than one who is at liberty while one way or another participated or have something
being investigated. But the common denominator in to do, in the alleged conspiracy that brought about
both which is sought to be avoided is the evil of the assassination. Could there still be any doubt then
extorting from the very mouth of the person that their being asked to testify, was to determine
undergoing interrogation for the commission of an whether they were really conspirators and if so, the
extent of their participation in the said conspiracy? It If the investigation was conducted, say by the PC,
is too taxing upon one's credulity to believe that NBI or by other police agency, all the herein private
private respondents' being called to the witness respondents could not have been compelled to give
stand was merely to elicit from them facts and any statement whether incriminatory or exculpatory.
circumstances surrounding the tragedy, which was Not only that. They are also entitled to be
already so abundantly supplied by other ordinary admonished of their constitutional right to remain
witnesses who had testified earlier. In fact, the silent, to counsel, and be informed that any and all
records show that Generals Ver and Olivas were statements given by them may be used against
among the last witnesses called by the Agrava them. Did they lose their aforesaid constitutional
Board. The subject matter dealt with and the line of rights simply because the investigation was by the
questioning as shown by the transcript of their Agrava Board and not by any police investigator,
testimonies before the Agrava Board, indubitably officer or agency? True, they continued testifying.
evinced purposes other than merely eliciting and May that be construed as a waiver of their rights to
determining the so-called surrounding facts and remain silent and not to be compelled to be a
circumstances of the assassination. In the light of the witness against themselves? The answer is yes, if they
examination reflected by the record, it is not far- have the option to do so. But in the light of the first
fetched to conclude that they were called to the portion of Section 5 of P.D. 1886 and the awesome
stand to determine their probable involvement in the contempt power of the Board to punish any refusal
crime being investigated. Yet they have not been to testify or produce evidence, We are not
informed or at the very least even warned while so persuaded that when they testified, they voluntarily
testifying, even at that particular stage of their waived their constitutional rights not to be compelled
testimonies, of their right to remain silent and that any to be a witness against themselves much less their
statement given by them may be used against them. right to remain silent.
 the protection of the individuals under the Fourteenth
Compulsion as it is understood here does not Amendment against coerced statements prohibits
necessarily connote the use of violence; it may be use in subsequent proceedings of statements
the product of unintentional statements. Pressure obtained under threat or removal from office, and
which operates to overbear his will, disable him from that it extends to all, whether they are policemen or
making a free and rational choice, or impair his other members of the body politic. 385 US at 500, 17 L
capacity for rational judgment would in our opinion Ed. 562. The Court also held that in the context of
be sufficient. So is moral coercion 'tending to force threats of removal from office the act of responding
testimony from the unwilling lips of the defendant. 26 to interrogation was not voluntary and was not an
effective waiver of the privilege against self-
Similarly, in the case of Louis J. Lefkowitz v. Russel 27 incrimination.
Turley" citing Garrity vs. New Jersey" where certain
police officers summoned to an inquiry being To buttress their precarious stand and breathe life
conducted by the Attorney General involving the into a seemingly hopeless cause, petitioners and
fixing of traffic tickets were asked questions following amicus curiae (Ex-Senator Ambrosio Padilla) assert
a warning that if they did not answer they would be that the "right not to be compelled to be a witness
removed from office and that anything they said against himself" applies only in favor of an accused in
might be used against them in any criminal a criminal case. Hence, it may not be invoked by
proceeding, and the questions were answered, the any of the herein private respondents before the
answers given cannot over their objection be later Agrava Board. The Cabal vs. Kapunan 28 doctrine
used in their prosecutions for conspiracy. The United militates very heavily against this theory. Said case is
States Supreme Court went further in holding that: not a criminal case as its title very clearly indicates. It
is not People vs. Cabal nor a prosecution for a
criminal offense. And yet, when Cabal refused to investigation before a Fact Finding Board where his
take the stand, to be sworn and to testify upon being life and liberty, by reason of the statements to be
called as a witness for complainant Col. Maristela in given by him, hang on the balance. Further
a forfeiture of illegally acquired assets, this Court enlightenment on the subject can be found in the
sustained Cabal's plea that for him to be compelled historical background of this constitutional provision
to testify will be in violation of his right against self- against self- incrimination. The privilege against self-
incrimination. We did not therein state that since he is incrimination is guaranteed in the Fifth Amendment
not an accused and the case is not a criminal case, to the Federal Constitution. In the Philippines, the
Cabal cannot refuse to take the witness stand and same principle obtains as a direct result of American
testify, and that he can invoke his right against self- influence. At first, the provision in our organic laws
incrimination only when a question which tends to were similar to the Constitution of the United States
elicit an answer that will incriminate him is and was as follows:
profounded to him. Clearly then, it is not the
character of the suit involved but the nature of the That no person shall be ... compelled in a criminal
proceedings that controls. The privilege has case to be a witness against himself. 30
consistently been held to extend to all proceedings
sanctioned by law and to all cases in which As now worded, Section 20 of Article IV reads:
punishment is sought to be visited upon a witness,
whether a party or not. 29 If in a mere forfeiture case No person shall be compelled to be a witness against
where only property rights were involved, "the right himself.
not to be compelled to be a witness against himself"
is secured in favor of the defendant, then with more The deletion of the phrase "in a criminal case"
reason it cannot be denied to a person facing connotes no other import except to make said
provision also applicable to cases other than freedom from arbitrariness. It is the embodiment of
criminal. Decidedly then, the right "not to be the sporting Idea of fair play (Frankfurter, Mr. Justice
compelled to testify against himself" applies to the Holmes and the Supreme Court, 1983, pp. 32-33). It
herein private respondents notwithstanding that the exacts fealty "to those strivings for justice and judges
proceedings before the Agrava Board is not, in its the act of officialdom of whatever branch "in the
strictest sense, a criminal case light of reason drawn from considerations of fairness
that reflect (democratic) traditions of legal and
No doubt, the private respondents were not merely political thought." (Frankfurter, Hannah v. Larche
denied the afore-discussed sacred constitutional 1960, 363 US 20, at 487). It is not a narrow or '"echnical
rights, but also the right to "due process" which is conception with fixed content unrelated to time,
fundamental fairness. 31 Quoting the highly- place and circumstances."(Cafeteria Workers v.
respected eminent constitutionalist that once McElroy 1961, 367 US 1230) Decisions based on such
graced this Court, the former Chief Justice Enrique M. a clause requiring a 'close and perceptive inquiry
Fernando, due process — into fundamental principles of our society. (Bartkus vs.
Illinois, 1959, 359 US 121). Questions of due process
... is responsiveness to the supremacy of reason, are not to be treated narrowly or pedantically in
obedience to the dictates of justice. Negatively put, slavery to form or phrases. (Pearson v. McGraw, 1939,
arbitrariness is ruled out and unfairness avoided. To 308 US 313).
satisfy the due process requirement, official action, to
paraphrase Cardozo, must not outrun the bounds of Our review of the pleadings and their annexes,
reason and result in sheer oppression. Due process is together with the oral arguments, manifestations and
thus hostile to any official action marred by lack of admissions of both counsel, failed to reveal
reasonableness. Correctly, it has been Identified as adherence to and compliance with due process.
The manner in which the testimonies were taken from witness. On the other hand, "transactional immunity"
private respondents fall short of the constitutional grants immunity to the witness from prosecution for
standards both under the DUE PROCESS CLAUSE and an offense to which his compelled testimony relates."
under the EXCLUSIONARY RULE in Section 20, Article 32 Examining Presidential Decree 1886, more
IV. In the face of such grave constitutional infirmities, specifically Section 5 thereof, which reads:
the individual testimonies of private respondents
cannot be admitted against them in ally criminal SEC. 5. No person shall be excused from attending
proceeding. This is true regardless of absence of and testifying or from producing books, records,
claim of constitutional privilege or of the presence of correspondence, documents, or other evidence in
a grant of immunity by law. Nevertheless, We shall obedience to a subpoena issued by the Board on
rule on the effect of such absence of claim to the the ground that his testimony or the evidence
availability to private respondents of the immunity required of him may tend to incriminate him or
provided for in Section 5, P.D. 1886 which issue was subject him to penalty or forfeiture; but his testimony
squarely raised and extensively discussed in the or any evidence produced by him shall not be used
pleadings and oral arguments of the parties. against him in connection with any transaction,
matter or thing concerning which he is compelled,
Immunity statutes may be generally classified into after having invoked his privilege against self-
two: one, which grants "use immunity"; and the other, incrimination, to testify or produce evidence, except
which grants what is known as "transactional that such individual so testifying shall not be exempt
immunity." The distinction between the two is as from prosecution and punishment for perjury
follows: "Use immunity" prohibits use of witness' committed in so testifying, nor shall he be exempt
compelled testimony and its fruits in any manner in from demotion or removal from office. (Emphasis
connection with the criminal prosecution of the supplied)
 that the right against self-incrimination must be
it is beyond dispute that said law belongs to the first invoked before the Board in order to prevent use of
type of immunity statutes. It grants merely immunity any given statement against the testifying witness in
from use of any statement given before the Board, a subsequent criminal prosecution. A literal
but not immunity from prosecution by reason or on interpretation fashioned upon Us is repugnant to
the basis thereof. Merely testifying and/or producing Article IV, Section 20 of the Constitution, which is the
evidence do not render the witness immuned from first test of admissibility. It reads:
prosecution notwithstanding his invocation of the
right against self- incrimination. He is merely saved No person shall be compelled to be a witness against
from the use against him of such statement and himself. Any person under investigation for the
nothing more. Stated otherwise ... he still runs the risk commission of an offense shall have the right to
of being prosecuted even if he sets up his right remain silent and to counsel, and to be informed of
against self- incrimination. The dictates of fair play, such right. No force, violence, threat, intimidation, or
which is the hallmark of due process, demands that any other means which vitiates the free will shall be
private respondents should have been informed of used against him. Any confession obtained in
their rights to remain silent and warned that any and violation of this section shall be inadmissible in
all statements to be given by them may be used evidence. (Emphasis supplied)
against them. This, they were denied, under the
pretense that they are not entitled to it and that the The aforequoted provision renders inadmissible any
Board has no obligation to so inform them. confession obtained in violation thereof. As herein
earlier discussed, this exclusionary rule applies not
It is for this reason that we cannot subscribe to the only to confessions but also to admissions, 33 whether
view adopted and urged upon Us by the petitioners made by a witness in any proceeding or by an
accused in a criminal proceeding or any person forecloses such option of refusal by imposing
under investigation for the commission of an offense. sanctions upon its exercise, thus:
Any interpretation of a statute which will give it a
meaning in conflict with the Constitution must be SEC. 4. The Board may hold any person in direct or
avoided. So much so that if two or more indirect contempt, and impose appropriate
constructions or interpretations could possibly be penalties therefor. A person guilty of .... including ...
resorted to, then that one which will avoid refusal to be sworn or to answer as a witness or to
unconstitutionality must be adopted even though it subscribe to an affidavit or deposition when lawfully
may be necessary for this purpose to disregard the required to do so may be summarily adjudged in
more usual and apparent import of the language direct contempt by the Board. ...
used. 34 To save the statute from a declaration of
unconstitutionality it must be given a reasonable Such threat of punishment for making a claim of the
construction that will bring it within the fundamental privilege leaves the witness no choice but to answer
law. 35 Apparent conflict between two clauses and thereby forfeit the immunity purportedly granted
should be harmonized. 36 by Sec. 5. The absurdity of such application is
apparent Sec. 5 requires a claim which it, however,
But a literal application of a requirement of a claim forecloses under threat of contempt proceedings
of the privilege against self- incrimination as a against anyone who makes such claim. But the
condition sine qua non to the grant of immunity strong testimonial compulsion imposed by Section 5
presupposes that from a layman's point of view, he of P.D. 1886 viewed in the light of the sanctions
has the option to refuse to answer questions and provided in Section 4,infringes upon the witness' right
therefore, to make such claim. P.D. 1886, however, against self-incrimination. As a rule, such infringement
of the constitutional right renders inoperative the
testimonial compulsion, meaning, the witness cannot With the stand we take on the issue before Us, and
be compelled to answer UNLESS a co-extensive considering the temper of the times, we run the risk of
protection in the form of IMMUNITY is offered. 37 being consigned to unpopularity. Conscious as we
Hence, under the oppressive compulsion of P.D. are of, but undaunted by, the frightening
1886, immunity must in fact be offered to the witness consequences that hover before Us, we have strictly
before he can be required to answer, so as to adhered to the Constitution in upholding the rule of
safeguard his sacred constitutional right. But in this law finding solace in the view very aptly articulated
case, the compulsion has already produced its by that well-known civil libertarian and admired
desired results the private respondents had all defender of human rights of this Court, Mr. Justice
testified without offer of immunity. Their constitutional Claudio Teehankee, in the case of People vs.
rights are therefore, in jeopardy. The only way to cure Manalang 38 and we quote:
the law of its unconstitutional effects is to construe it
in the manner as if IMMUNITY had in fact been I am completely conscious of the need for a
offered. We hold, therefore, that in view of the balancing of the interests of society with the rights
potent sanctions imposed on the refusal to testify or and freedoms of the individuals. I have advocated
to answer questions under Sec. 4 of P.D. 1886, the the balancing-of-interests rule in an situations which
testimonies compelled thereby are deemed call for an appraisal of the interplay of conflicting
immunized under Section 5 of the same law. The interests of consequential dimensions. But I reject any
applicability of the immunity granted by P.D. 1886 proposition that would blindly uphold the interests of
cannot be made to depend on a claim of the society at the sacrifice of the dignity of any human
privilege against self-incrimination which the same being. (Emphasis supplied)
law practically strips away from the witness.
Lest we be misunderstood, let it be known that we
are not by this disposition passing upon the guilt or DIGEST
innocence of the herein private respondents an issue #26. People v. Molero G.R. No. L-67842
which is before the Sandiganbayan. We are merely September 24, 1986
resolving a question of law and the pronouncement
herein made applies to all similarly situated, Facts:
irrespective of one's rank and status in society.
That on or about the 5th day of February, 1976,
IN VIEW OF THE FOREGOING CONSIDERATIONS and on the banks of the river Siaton at Sitio Balogo,
finding the instant petitions without merit, same are Barangay Tamlang, Municipality of Santa
DISMISSED. No pronouncement as to costs. Catalina, Province of Negros Oriental, Philippines,
and within the jurisdiction of this Honorable Court,
SO ORDERED. the above-named accused, with grave abuse of
confidence being the father of the herein
Aquino, J., concurs (as certified by Makasiar, C.J.). complainant, with force and intimidation by
brandishing a bolo in threatening the
Abad Santos, J., is on leave. 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 and she staggered and fell to the ground face
accepted by the trial court as basis for the up. He fell too as he was holding her left hand
judgment of conviction are summarized by the placing it on her back while he knelt on her right
court as follows: arm. She tried to struggle but he unsheathed his
harp bolo (locally known as PINUTI) and placed it
It appears from the evidence particularly in the along her side. He then proceeded to pull up her
testimony of complainant Pacita Molero that on dress and remove her short pants and panty. She
February 5, 1976 at about 9:00 o'clock in the cried saying 'why are you doing this to me' and
morning, her father, Pablo Moler, told her to go he only answered 'you shut up.' (Tsn-Gertrudes
with him to the Siaton River at Tamlang, Sta. Tangon, Dec. 7, 1978, page 12 of her transcript
Catalina, Negros Oriental, about a kilometer and page 247 of record). Then he unbuttoned his
away from their house ostensibly to catch shrimps pants, let out his penis and lay on top of her and
and perhaps fish presumably for viand for the did the push and pull movement in sexual
family that day. Pacita was the third among the intercourse. She tried to kick him but he again
seven children of Pablo. On February 5, 1976, she held the unsheathed bolo which was placed on
was barely 17 years young having been born on her side. Afraid that he might do her harm with
November 11, 1958. Obeying the command of the bolo if she continued to put up resistance,
her father, she went with him to the Siaton River and obviously because of his moral ascendancy
which evidently was a secluded area in the over her, the accused succeeded in having
mountain barrio of Tamlang. As they reached the sexual intercourse with his daughter and the latter
river and while walking along its bank, with Pacita again cried.
ahead and followed by her father, all so suddenly
Pacita was hugged from behind by her father,
On February 11, 1976, Pacita Molero and her o'clock, five o'clock , six o'clock , seven o'clock,
mother went to the office of the Station nine o'clock, ten o'clock and twelve o'clock, thus
Commander of Pamplona, Negros Oriental, to showing that Pacita Molero had several previous
report the incident. The accused was also called sexual intercourses, although the cervical smear
to the office and the accused and his daughter showed no signs of spermatozoa.
had a confrontation before the Station
Commander. The accused asked 'what is this all The appellant denied the charge. According to
about, Pacita' and she answered saying 'this him, he could not have committed the crime
could not have happened if you did not abuse because on February 5, 1976, he was already
me.' (Tsn-Nena S. Saad, Dec. 5, 1978, page 15 of confined in the provincial jail and that he had
her transcript, page 219 of record). It would seem been in jail since December 7, 1975.
that the case was too serious for the station
Commander of Pamplona to handle, so the The appellant also denied any knowledge of the
complainants were advised to report to the PC sworn statement he made "because I am an
Headquarters at barrio Palanas. illiterate" (TSN, March 8, 1982, p. 11). He, however,
admitted that he was investigated by PC soldiers
In connection with the investigation of the before he was placed in the stockade.
complaint of Pacita Molero, Dr. Enofreda Abordo-
Sebul testified that she conducted an internal Issue:
and external examination of Pacita Molero and a) Whether or not, under the facts obtaining in
she found that her vaginal opening admitted two the case at bar, accused- appellant, Pablo
fingers freely and easily and there were old Molero was placed under double jeopardy; and
lacerations of the hymen at two o'clock , three
b) Whether or not the accused-appellant clearly told the Court that the record of the
committed the crime of rape. Provincial Jail shows that the accused was
committed to the Provincial Jail only on
Ruling: December 2, 1976 and definitely on February 5,
1976 he was not yet confined in the Provincial
Indeed, we find no reason to depart from the trial Jail. . . . Pressed by the Court if he could have any
court's finding that the appellant is guilty beyond satisfactory explanation why his daughter would
reasonable doubt of the crime of rape against his file such a serious charge against him if in truth he
own daughter. We agree with the findings of the had not committed the act, the accused just
trial court that: matter-of-factly said that 'my daughter Pacita
and her mother agreed to file this case.' (Tsn-
As against the vivid and clear testimony of Pacita Liberata Balasbas March 10, 1982, page 11 of
Molero, the accused had nothing to offer except transcript, page 434 of record).
his short testimony denying having committed in
any way the crime of Rape against his very own The defense placed Pacita Molero as its own
daughter, He denied having brought his witness and her testimony as witness for the
daughter to the Siaton River on February 5, 1976 defense, that her father had sexual intercourse
because he insisted that he was already confined with her on February 5, 1976 when he brought her
in the PC Stockade on February 13, 1975, and to the Siaton River, has only served to reinforce
that he was already incarcerated in the her testimony on 'this aspect of the case, when
Provincial Jail since December 5, 1975. However, she testified as a witness for the prosecution.
defense witness Benjamin Alcorcon, Supervising Undoubtedly, the accused is bound by the
Prison Guard of the Negros Oriental Provincial Jail testimony of his own witness.
 FULL CASE
All told, the Court finds that the guilt of the
accused was established beyond reasonable
doubt by the clear and convincing testimony of DIGEST
the complainant, Pacita Molero. Although at #26. People v. Molero G.R. No. L-67842 September
times during her testimony she got confused as to 24, 1986
dates, this is understandable considering that she
is illiterate and this did not in any way affect the GUTIERREZ, JR., J.:
vivid portrayal of the heinous act committed on
her by her father. Appellant Pablo Molero was charged with the crime
of rape by his own daughter Pacita Molero in a
WHEREFORE, except for the MODIFICATION that complaint filed in the Court of First Instance of Negros
the indemnity of P10,000.00 is increased to Oriental. The criminal complaint dated March 30,
TWENTY THOUSAND PESOS (P20,000.00), the 1978 alleged:
decision appealed from is AFFIRMED in all
respects. 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 Siaton River which evidently was a secluded area in
he would kill the undersigned and all the members of the mountain barrio of Tamlang. As they reached the
the family, did then and there wilfully, unlawfully and river and while walking along its bank, with Pacita
feloniously have carnal knowledge with the ahead and followed by her father, all so suddenly
undersigned complainant against the will of the Pacita was hugged from behind by her father, and
latter. she staggered and fell to the ground face up. He fell
too as he was holding her left hand placing it on her
The facts established by the prosecution and back while he knelt on her right arm. She tried to
accepted by the trial court as basis for the judgment struggle but he unsheathed his harp bolo (locally
of conviction are summarized by the court as follows: known as PINUTI) and placed it along her side. He
then proceeded to pull up her dress and remove her
It appears from the evidence particularly in the short pants and panty. She cried saying 'why are you
testimony of complainant Pacita Molero that on doing this to me' and he only answered 'you shut up.'
February 5, 1976 at about 9:00 o'clock in the morning, (Tsn-Gertrudes Tangon, Dec. 7, 1978, page 12 of her
her father, Pablo Moler, told her to go with him to the transcript and page 247 of record). Then he
Siaton River at Tamlang, Sta. Catalina, Negros unbuttoned his pants, let out his penis and lay on top
Oriental, about a kilometer away from their house of her and did the push and pull movement in sexual
ostensibly to catch shrimps and perhaps fish intercourse. She tried to kick him but he again held
presumably for viand for the family that day. Pacita the unsheathed bolo which was placed on her side.
was the third among the seven children of Pablo. On Afraid that he might do her harm with the bolo if she
February 5, 1976, she was barely 17 years young continued to put up resistance, and obviously
having been born on November 11, 1958. Obeying because of his moral ascendancy over her, the
the command of her father, she went with him to the
accused succeeded in having sexual intercourse Upon being informed of the incident her mother told
with his daughter and the latter again cried. her to just keep quiet for the moment as they would
report the matter to the police authorities soon. They
After he satisfied his carnal lust, he stood up and the were secretive about their plan to report to the
complainant likewise stood up and put on her police because the mother and the daughter and
panties and pants and proceeded home. Before she the whole family knew that the accused was quite a
walked home, the accused warned her not to tell fierce man, a cruel husband and a merciless father.
her mother of what happened otherwise he would
kill all of them . As she walked home, she noticed that On February 11, 1976, Pacita Molero and her mother
her father followed her and did not proceed went to the office of the Station Commander of
anymore in catching fish or shrimps. She surmissed Pamplona, Negros Oriental, to report the incident.
that he followed her, so she would not have the The accused was also called to the office and the
opportunity to tell her mother of what happened accused and his daughter had a confrontation
until three days later or on February 8, 1976. Among before the Station Commander. The accused asked
others, Pacita Molero said: 'what is this all about, Pacita' and she answered
saying 'this could not have happened if you did not
I just decided to report the matter to my mother abuse me.' (Tsn-Nena S. Saad, Dec. 5, 1978, page 15
whether he will kill all of us because I could no longer of her transcript, page 219 of record). It would seem
endure what he had been doing to me.' (Tsn- that the case was too serious for the station
Gertrudes Tangon, page 14 of transcript and page Commander of Pamplona to handle, so the
249 of record) complainants were advised to report to the PC
Headquarters at barrio Palanas.
At the PC Headquarters the complaint was These statement above quoted are found in the
investigated by Patrolman Arturo Adriatico Sr. who sworn statement of the accused (Exhibit "B" ) which
took down the statement of Pacita Molero and her was testified to by Pat. Arturo Adriatico, Sr.
mother. The accused was likewise investigated by
Adriatico on February 25, 1976, but the accused did In connection with the investigation of the complaint
not want the investigation to be continued beacuse of Pacita Molero, Dr. Enofreda Abordo-Sebul testified
according to him this was just their 'own problem.' that she conducted an internal and external
Asked to elaborate what he meant by 'own problem' examination of Pacita Molero and she found that her
the accused said 'kaugalingon ra nakong sala sa vaginal opening admitted two fingers freely and
akong pagpuyo' which in English , means 'it is my easily and there were old lacerations of the hymen
own fault in my family life.' Asked to elaborate further at two o'clock , three o'clock, five o'clock , six o'clock
on his last statement, the accused said: , seven o'clock, nine o'clock, ten o'clock and twelve
o'clock, thus showing that Pacita Molero had several
Nga akong nahapanglapasan ang salingsing sa previous sexual intercourses, although the cervical
sacramento sa among pagpuyo nga ang akong smear showed no signs of spermatozoa.
anak babaye akong gibuongan sa iyang dumgog
The appellant denied the charge. According to him,
which in English means: he could not have committed the crime because on
February 5, 1976, he was already confined in the
I have commited a wrong against my own daughter provincial jail and that he had been in jail since
wherein I destroyed her virtue as a woman. December 7, 1975.
The appellant also denied any knowledge of the December 2, 1976 and that definitely on February 5,
sworn statement he made "because I am an 1976, he was not yet confined there.
illiterate" (TSN, March 8, 1982, p. 11). He, however,
admitted that he was investigated by PC soldiers The trial court found the appellant guilty beyond
before he was placed in the stockade. reasonable doubt of the crime of Rape as defined
and penalized under Art. 335 of the Revised Penal
During the investigation, he denied the rape charge Code. He was sentenced to suffer the penalty of
filed against him by his own daughter "because as a Reclusion Perpetua and to indemnify Pacita Molero
man, I have been earning my living for I have the sum of P10,000.00 and to pay the costs of this
masters to serve like my stomach and my children. action.
So, I have to work in my own humble way." (TSN,
March 8, 1982, p. 12) Moreover, he stated that The appellant submits that the issues involved in the
before the investigation started he was not informed instant case are as follows:
of his constitutional rights to remain silent and to
counsel; that he was not assisted by counsel during a) Whether or not, under the facts obtaining in the
the investigation and that the first time he had a case at bar, accused- appellant, Pablo Molero was
lawyer was at the trial of the instant case. placed under double jeopardy; and

The appellant's defense of alibi was readily refuted b) Whether or not the accused-appellant committed
by Benjamin Alcorcon, Supervising Prison Guard of the crime of rape.
the Negros Oriental Provincial Jail who informed the
court that according to the records of the Provincial The double jeopardy issue stems from the following
Jail, the appellant was committed to the Jail only on antecedent facts:
 court issued an Order the dispositive portion of which
The original complaint of Pacita Molero, dated reads:
March 22, 1977, charged her father with the crime of
rape allegedly committed "on or about the 13th day WHEREFORE, the motion for reconsideration filed by
•f February, 1976." Except for the date which is "on or the accused dated February 22, 1978 in relation to
about the 5th day of February, 1976" in the March 30, the Reply to Opposition to Motion for
1978 complaint, the facts alleged in the two Reconsideration dated March 6, 1978 is hereby
complaints were exactly the same. granted and the Order of this Court dated February
17, 1978 admitting the amended criminal complaint
The appellant was originally arraigned under the dated February 2, 1978 is hereby set aside, and the
March 22, 1977 criminal complaint. He pleaded "Not said amended criminal complaint is hereby denied
Guilty." admission. Accordingly, this case is hereby dismissed
with costs de oficio, but the accused shall not be
During the trial, Pacita Molero, the complaining discharged as there appears a good cause to
witness testified that she was raped by her father on detain him in custody to answer for the proper
February 5, 1976. offense pursuant to Sec. 12, Rule 119 of the Rules of
Court. the Provincial Fiscal and/or the prosecuting
In view of Pacita's testimony, the assistant provincial fiscal is hereby ordered to cause the filing of a new
fiscal filed a motion for leave to amend the complaint and/or information charging the accused
complaint. of the proper offense of rape committed on or
before February 5, 1976 within thirty (30) days from
The motion was granted. However, upon a motion receipt of this Order. (People v. de la Cruz, 59 Phil.
for reconsideration filed by the appellant, the trial
529, cited by Padilla, Criminal Procedure, 1971 ed., p. criminal complaint alleged that he committed the
763.) crime of rape on February 13, 1976 and yet the
prosecution's evidence shows that the alleged crime
Accordingly, the corrected criminal complaint dated was committed on February 5, 1976.
March 30, 1978 was filed.
Section 22, Article IV of the 1973 Constitution states
The appellant filed a motion to quash the criminal that no person shag be put twice in j jeopardy of
complaint on the ground that the appellant had punishment for the same offense." Section 9, Rule 117
been previously in jeopardy of being convicted of of the Revised Rules of Court, now substantially
the offense charged citing Section 1(h) Rule 112 of reproduced as Section 7, Rule 117 in the 1985 Rules
the Revised Rules of Court. The motion was denied. on Criminal Procedure, lays down the necessary
Arraignment followed. The appellant pleaded "Not requisites in order that defense of double jeopardy
Guilty." Thereafter, hearings were conducted may prosper, to wit:
resulting in the conviction of the appellant.
Former conviction or acquittal double jeopardy. -
The appellant now contends that he was placed in When defendant shall have been convicted or
double jeopardy when the instant case was filed and acquitted, or the case against him dismissed or
he was brought to trial to answer for the crime of otherwise terminated without the express consent of
rape allegedly committed on February 5, 1976. He the defendant by a court of competent jurisdiction,
argues that the dismissal of Criminal Case No. 2148 upon a valid complaint or information or other formal
on ground of variance between allegation and charge sufficient in form and substance to sustain a
proof amounted to his acquittal, citing People v. conviction and after the defendant had pleaded to
Opemia (98 Phil. 698). He points to the fact that the the charge, the conviction or acquittal of the
defendant or the dismissal of the case shall be a bar Provincial Fiscal and/or the prosecuting fiscal to file a
to another prosecution for the offense charged, or new complaint and/or information charging the
for any attempt to commit the same or frustration accused with the proper offense of rape committed
thereof, or for any offense which necessarily includes on or before February 5, 1976. The case was
or is necessarily included in the offense charged in dismissed for no other reason except to correct the
the former complaint or information. date of the crime from "on or about the 13th day of
February" to "on or about the 5th day of February."
Dismissal of the first case contemplated by this rule Hence, the provisional dismissal of Criminal Case No.
presupposes a definite or unconditional dismissal 2148 could not have barred the prosecution of the
which terminates the case. (Jaca v. Blanco, 86 Phil. case against the appellant.
452; People v. Manlapas, 5 SCRA 883; Republic v.
Agoncillo, 40 SCRA 579; People v. Hon. Surtida, 43 Contrary to the claim of the appellant, the dismissal
SCRA 29; People v. Mogol, 131 SCRA 296). And "for of Criminal Case No. 2148 did not amount to his
dismissal to be a bar under the jeopardy clause of acquittal.
the Constitution, it must have the effect of acquittal."
(People v. Agoncillo, supra) There was no need for the trial court to have used
such a cumbersome procedure. What the trial court
It is quite clear that the order of the trial court should have done was simply to deny the motion for
dismissing the Criminal Case No. 2148 was without reconsideration of the order granting the
prejudice to the filing of a new complaint and/or prosecution's motion for leave to amend the
information charging the appellant with the proper complaint as to the date of the commission of the
offense. The case was not terminated because the crime from February 13, 1976 to February 5, 1976.
dispositive portion of the order expressly directed the There was no need to dismiss the case without
prejudice to the filing of a new complaint. Section 12, committed at any time as near to the actual date at
Rule 119, Revised Rules of Court applies when there is which the offense was committee as the information
a mistake in charging the proper offense but not or complaint will permit.
when an honest error of a few days is sought to be
corrected and the change does not affect the rights xxx xxx xxx
of the accused. The prosecution in Criminal Case No.
2148 had already moved for the amendment of the Amendment. The information or complaint may be
date of the commission of the crime. The dismissal of amended, in substance or form, without leave of
the case pursuant to Section 12, Rule 119 of the court, at any time before the defendant pleads; and
Revised Rules of Court was made only for that thereafter and during the trial as to all matters of
precise purpose. form, by leave and at the discretion of the court,
when the same can be done without prejudice to
After arraignment and where the appellant has the rights of the defendant.
pleaded "not guilty," it is still proper to amend the
date of the commission of the crime? The applicable Applying the rules, the amendment sought by the
rules are Sections 10 and 13, Rule 110 of the Revised prosecution should have been granted.
Rules of Court. These rules provide:
The precise time of the commission of the crime is not
Time of the commission of the offense.-It is not an essential element of the offense of rape. The
necessary to state in the complaint or information the amendment of the complaint changing the date of
precise time at which the offense was committed the commission of the crime of rape from February
except when time is a material ingredient of the 13, 1976 to February 5, 1976, a difference of eight (8)
offense, but the act may be alleged to have been days was only a matter of form under the facts of this
case and did not prejudice the rights of the In the case of People v. Reyes, (supra) on which the
appellant. This Court has ruled: respondent judge relies, the change sought was from
1964 to 1969, a difference of five (5) years, which
In the case of People v. Rivera (1970, 33 SCRA 746), gap of five years 'is so great as to defy approximation
We ruled that the amendment of the information as in the commission of one and the same offense.'
to the date of the commission of the offense from
March 2, 1964 to March 2, 1965, a difference of one This is not so in the case at bar where the difference
(1) year or twelve (I 2) months, was merely a matter is only, as aforestated, two months and five days,
of form and does not prejudice the rights of the which disparity allows approximation as to the date
accused, reiterating the ruling in the case of U.S. v. of the commission of the offense of grave coercion."
Ramos, (1912, 23 Phil. 300) where the Fiscal was (People v. Borromeo, 123 SCRA 253).
permitted to amend the date of the commission of
the offense from June 16, 1910 to June, 1911. The appellant's reliance on the case of People v.
Opemia supra, is not well- taken. The amendment
The phrase 'on or about' employed in the information proposed in that case was the changing of the date
does not require the prosecution 'to prove any of the commission of the crime from June 18, 1952 to
precise date but may prove any date which is not so July, 1947, or a difference of five years. We
remote as to surprise and prejudice the defendant. In disallowed the amendment and adopted the lower
case of surprise, the Court may allow an amendment court's ruling that "the amendment that would
of the information as to time and an adjournment to change the date of the commission of the offense
the accused, if necessary, to meet the amendment' from 1947 to 1952 is certainly not a matter of form.... It
(U.S. v. Dichao, 27 Phil. 420, 423 [1914]). is apparent that the proposed amendment concerns
with material facts constituting the offense, and
consequently, it would be prejudicial to the incident to her mother. He argues that if a crime was
constitutional rights of the defendants." committed by him at all, it was one of qualified
seduction.
The dismissal of Criminal Case No. 2148 did not
amount to the appellant's acquittal. In effect, the The appellant's arguments deserve no merit. Pacita's
order of dismissal does not constitute a proper basis narration of the incident clearly shows that the
for a claim of double jeopardy: (See People v. Bocar, appellant employed force and intimidation against
138 SCRA 166) her, to wit:

The constitutional mandate against putting a person FISCAL:

twice in jeopardy of punishment for the same offense
is to protect the accused from going through a trial a Q Now,on what part of the river did this incident
second time. But, since the first proceedings has not happen??
yet been terminated, there is no second proceeding
to speak of, and, therefore, no double jeopardy A At Balogo while we were walking on the edge of
(Flores, Jr. v. Enrile, 115 SCRA 236). the river.

Under the second issue, the appellant insists that the Q You mean, you were following the river?
evidence failed to establish the presence of force
and intimidation in the commission of the sexual act. A Yes, I was ahead.
He mentions Pacita's testimony that she had a series
of sexual intercourses with the appellant since she Q Now, while you were ahead, there was that
was thirteen years old and yet did not report the incident that happened. What was that incident?
A Because he made me go ahead and suddenly he A I fell down.
wrestled me.
Q On the very place where you were then hugged
COURT: by your father?

Q Is that the correct translation? A Yes.

FISCAL: Q When you fell to the ground, what was your

position?
No, Your Honor. She was hugged from behind.
A My left hand was placed in my back because he
COURT: held my left hand.

'I was ahead and suddenly he hugged me from Q When did your father hold your left hand placing it
behind.' at your back?

That is the correct translation. COURT:

FISCAL: After you fell or before you fell?

Now, when you were hugged by your father

suddenly from behind, what happened?
A I had already my hand at my back when I fell
down because he immediately embraced me but A I was lying on my back.
then I tried to free myself. After which, I fell down.
Q And how about your left arm, which you said was
FISCAL: being held by your father while you were already
lying flat on the ground?
When your father was hugging you and you told this
Court that you struggled to free yourself and you also A He pulled up my dress and put off my panties."
told the Court that you fell to the ground, when you (TSN, November 20, 1978, pp. 8-10)
fell to the ground, did you fall to the ground together
with your father or you were the only one who fell to xxx xxx xxx
the ground?
FISCAL:
A He also fell down following me because he was
holding my hand. According to you, you fell to the ground followed by
your father and your father was still holding your left
Q And your father at that time was holding which of arm which was placed at your back. While you were
your hand or arm? already flat on the ground, was your father still
holding your left arm at the back?
A Left.
A He was still holding my left arm and then when we
Q And when you were already on the ground, win fell down he knelt on my other arm.
you please tell the Court what was your position?
Q And you are referring to your right hand? Q Which side of your body was your father when he
was kneeling or bending?
A Yes.
A My right.
Q When your father, the accused therein, was doing
that, where was he in relation to you? Q Then, while your father was doing that, what did
he do to you?
COURT:
A He was removing his buttons and he took off my
What was the position of your father when he was panties.
kneeling on your right arm and holding your left arm
on the back? Q All right, now, how about your dress, what kind of
dress were you wearing at that time?
A He was on a kneeling but bending position.
A I was wearing a thick clothing because I was sure
FISCAL: that I will be wet and I was also wearing a short
pants.
Was he directly on top of you or he was on either
side of your body? COURT:

A On my side. What is this thick clothes you were wearing? You

mean, dress, pants or blouse?
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 COURT:
daily use.
Make that of record.
Q It is a one-piece dress?
COURT:
A Yes.
Go ahead, Fiscal.
Q And you were wearing also short pants, according
to you? FISCAL:

A Yes. All right, now, according to you, your father, the

accused therein, removed your panty. Now, which
Q And you were wearing panties under the short was removed first, your panty or the short pant you
pants? were wearing because according to you, you were
wearing short pant?
A Yes.
COURT:
ATTY. REYES:
How can you remove the panty first when you are
Your Honor please, may we add for the records that wearing the short pant? Well, witness may answer the
she refers to a dress made of cotton or silk but question.
relatively of light material.
A Both were removed at the same time. Q When he was holding that bolo, with what hand
was he holding that?
FISCAL:
A Right.
And which took first, the simultaneous removal of
your shorts and panty or the unbottoning of the Q How about his left hand, what was it doing at that
pants of your father? time?

A He took off my panty and shorts first. A His left hand was also holding my other hand and
so when he unsheathe his bolo, I did not continue to
COURT: struggle because I know he would kill me.

How was he able to remove your panty and shorts, FISCAL:

were you not struggling to free yourself?
And which took place first, the simultaneous removal
A I was not able to struggle because he unsheathe a of your shorts and panty or the unsheathing of the
bolo. bolo by your father?

Q What did he do with the bolo A The simultaneous taking of the panty and short
pant took place first because I kept on struggling so
A That if I continue to struggle, he would kill me. he unsheathe his bolo.

COURT:
 your father remove or unbutton his pants, while he
Actually, the Court gets it from you that he was able was still holding that bolo?
to remove your panty and short pant before he
unsheathe his bolo? A He put down the bolo on his side and after which,
he unbuttoned his pants.
A Yes, after he took off my panty and short pant that
was the time he threatened me. Q At that time, what was the kind of pants your
father was wearing?
Q He was able to remove your panty and short pant
completely out before he threatened you with the A He was only wearing an improvised short pant and
use of a bolo? with buttons in front.

A Yes. Q Was your father actually able to unbutton his

improvised short pants?
COURT:
A Yes.
Go ahead.
Q After he was able to unbutton his improvised short
FISCAL: pants what did he do?

Now, after your panty and short pant were already A He lay down on top of me.
removed and according to you, your father
unsheathe his bolo and threatened you. When did
Q And how about your legs at that time, was it
already spread out? Q Now, what happened while he was already on
top of you?
A I tried to hold my both thighs together but then he
opened them. A He was doing the push and pull movement of his
buttocks.
Q And your father, according to you, placed himself
on top of you while your legs were already spread Q And at that time, did you not struggle to free
out? yourself?

A When he was able to lie on top of me, I tried to A When he was doing that act, I kicked him but then
close both legs but then he held them open and he he again got hold of the bolo placed on his side.
lay on top of me.
Q Then, what did you do after he got hold of the
Q So that when your father was lying on top of you, bolo?
your both legs were already spread
A I cried because he made sexual intercourse with
A Yes. me.

Q How about your dress at that time your father was

on top of you, what was the position of your dress?
Moreover, there is no doubt that the appellant had a
A He rasised it up to my stomach. moral ascendancy and influence over Pacita such
that he could easily intimidate and force her to committed when he had sexual intercourse with his
submit to his lustful desires considering that the own daughter Pacita ever since she was thirteen
appellant was her father and she was only years old. An intimidated person cowed into
seventeen(17) years old at that time. The submitting to a series of repulsive acts may acquire
complainant is obviously illiterate and unschooled. some courage as she grows older and finally state
Her complaint is signed with a thumbmark. These, that enough is enough, the depraved malefactor
plus the fact that the appellant at the time of the must be punished. The tragedy in this case is that the
commission of the crime threatened her with a bolo criminal happens to be her own father.
had practically rendered complainant helpless
against the lustful demands of the appellant. (See Indeed, we find no reason to depart from the trial
People v. Alcid, 135 SCRA 280). The records also show court's finding that the appellant is guilty beyond
that the appellant was a fierce man, a cruel reasonable doubt of the crime of rape against his
husband, and a merciless father such that mother own daughter. We agree with the findings of the trial
and daughter had to cower in secretive fear before court that:
reporting the rape to the authorities.
As against the vivid and clear testimony of Pacita
The fact that Pacita did not report the previous Molero, the accused had nothing to offer except his
incidents involving her and the appellant to her short testimony denying having committed in any
mother has no bearing on the prosecution of the way the crime of Rape against his very own
instant case. This case refers to the commission of the daughter, He denied having brought his daughter to
crime of rape on February 5, 1976 by the appellant the Siaton River on February 5, 1976 because he
against Pacita which is a distinct and separate crime insisted that he was already confined in the PC
from whatever crimes the appellant might have Stockade on February 13, 1975, and that he was
already incarcerated in the Provincial Jail since prosecution. Undoubtedly, the accused is bound by
December 5, 1975. However, defense witness the testimony of his own witness.
Benjamin Alcorcon, Supervising Prison Guard of the
Negros Oriental Provincial Jail clearly told the Court All told, the Court finds that the guilt of the accused
that the record of the Provincial Jail shows that the was established beyond reasonable doubt by the
accused was committed to the Provincial Jail only on clear and convincing testimony of the complainant,
December 2, 1976 and definitely on February 5, 1976 Pacita Molero. Although at times during her
he was not yet confined in the Provincial Jail. . . . testimony she got confused as to dates, this is
Pressed by the Court if he could have any understandable considering that she is illiterate and
satisfactory explanation why his daughter would file this did not in any way affect the vivid portrayal of
such a serious charge against him if in truth he had the heinous act committed on her by her father.
not committed the act, the accused just matter-of-
factly said that 'my daughter Pacita and her mother WHEREFORE, except for the MODIFICATION that the
agreed to file this case.' (Tsn-Liberata Balasbas March indemnity of P10,000.00 is increased to TWENTY
10, 1982, page 11 of transcript, page 434 of record). THOUSAND PESOS (P20,000.00), the decision
appealed from is AFFIRMED in all respects.
The defense placed Pacita Molero as its own witness
and her testimony as witness for the defense, that her SO ORDERED.
father had sexual intercourse with her on February 5,
1976 when he brought her to the Siaton River, has Feria (Chairman), Fernan, Alampay and Paras, JJ.,
only served to reinforce her testimony on 'this aspect concur.
of the case, when she testified as a witness for the
 DIGEST pointed at his chest but when Corporal Calixto
#27. People v. Quibate G.R. No. L-54881 July Morales fired a shot with his revolver, the
31, 1984 accused surrendered the knife.

Facts: The trial court promulgated its decision on

March 4, 1980 sentencing the accused to an
Around 4:00 in the early morning of July 22, indeterminate period of imprisonment of 12
1978, the accused-appellant stabbed his wife years minimum to 17 years maximum. However,
Prima Baltar to death in a fit of jealousy. The immediately after promulgating it on that day,
couple's ten-year old daughter, Imelda the court had second thoughts and issued the
Quibate, testified that her father stabbed her following order:
mother to death with a knife while the two were
quarreling in the balcony of their house at After the promulgation of this case, the court
Aranguel, President Roxas, Capiz. The daughter moto proprio cancels the promulgation upon
stated that the quarrel arose from her father's noting that the regular counsel de oficio, Atty.
jealousy of "Gabi" their neighbor. Imelda ran to Antonio Bisnar was not around at the time and
the house of her uncle, Alberto Baltar who the accused refused to sign receipt of a copy
immediately went to his sister's house. Alberto of the decision and upon noting that there was
saw his sister already dead, the accused- a typographical error in the decision consisting
appellant drumming the death weapon against of the wrong penalty and the court noting
the window sill. When the police arrived at the further that the decision have not been filed.
scene, Quibate was still holding the knife. The
accused tried to kill himself with the knife
Notifying accused and counsel of the new date date of promulgation was considered on April 1,
of promulgation which is hereby set for March 1980. Promulgation was re-set to April 11, 1980.
20, 1980.
On April 11, 1980, an oral motion to quash
It may be noted that apart from cancelling the promulgation was made. No memorandum in
promulgation, the court ordered that the support of the motion was filed and the records
accused and his missing counsel be notified of fail to indicate the grounds relied upon by
the new date of promulgation which was set for counsel. On June 9, 1980, the motion to quash
March 20, 1980. promulgation was denied. The promulgation
was reset to June 13, 1980 on which date the
On March 20, 1980, the counsel de oficio was questioned decision imposing reclusion
again absent so the court appointed a well- perpetua instead of the earlier indeterminate
known practitioner in the area, Atty. Jose period of imprisonment of 12 years as minimum
Alovera, to assist the accused in the and 17 years as maximum was rendered.
promulgation and to coordinate with the other
counsel Atty. Antonio Bisnar. Promulgation was The appellant raises no issue in this appeal
re-set to April 1, 1980. regarding his main defense during the trial
below — that the acted in self-defense. We
On March 27, 1980, Atty. Alovera filed a motion have nonetheless examined the records on this
to advance the date of promulgation to March point because of the serious nature of the
31, 1980 as counsel had to leave for Iloilo City crime. We find no error in the court's rejecting
on April 1, 1980. The motion to advance the this defense. The allegation of self-defense has
no basis.
 What the trial court should have done was to
Ruling: have categorically asked the counsel de oficio
of the accused (who was not the counsel de
In the case at bar, the judgment of conviction oficio who handled the defense of the
and its promulgation were set aside on the very accused) whether or not he would appeal.
day that the judgment was promulgated. At Because the accused did not file any notice of
that time, the period for perfecting an appeal appeal immediately after the judgment was
had not lapsed; and the accused had not promulgated, the trial court jumped to the
waived his right to appeal. Only if he were conclusion that he had no intention of taking an
deemed to have commenced service of his appeal. ...
sentence could the judgment be deemed final.
Considering the factual circumstances of this
We find in this case an opportune occasion to case, the low intelligence of the accused, and
remind an trial courts to devote a little more the gravity of the offense of parricide, it was the
time to the study of the penalty provisions of the duty of the lower court on March 4, 1980 to
Revised Penal Code immediately before ascertain whether or not the detention prisoner
promulgating each decision, to obviate the whose sentence of conviction had just been
necessity of issuing amended or read intended to appeal. Upon the answer
"repromulgated" decisions increasing sentences would have depended its power to modify the
of imprisonment. Trial courts should likewise note decision but within the period for the taking of
the dictum in Flores v. Dalisay (84 SCRA 46, 48). an appeal.
WHEREFORE, the judgment of the Court of First
Instance of Capiz finding the accused-
appellant guilty beyond reasonable doubt of GUTIERREZ, JR., J.:
the crime of parricide and sentencing him to
suffer the penalty of reclusion perpetua is Accused Rodolfo Quibate appeals the decision of
hereby AFFIRMED. The accused-appellant is also the Court of First Instance of Capiz finding him guilty
ordered to indemnify the heirs of Prima Baltar beyond reasonable doubt of the crime of parricide
Quibate in the sum of THIRTY THOUSAND and sentencing him to suffer the penalty of reclusion
(P30,000.00) PESOS. perpetua and to indemnify the heirs of Prima Baltar-
Quibate.

Around 4:00 in the early morning of July 22, 1978, the

FULL CASE accused-appellant stabbed his wife Prima Baltar to
death in a fit of jealousy. The couple's ten-year old
G.R. No. L-54881 July 31, 1984 daughter, Imelda Quibate, testified that her father
stabbed her mother to death with a knife while the
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, two were quarreling in the balcony of their house at
vs. Aranguel, President Roxas, Capiz. The daughter
RODOLFO QUIBATE, defendant-appellant. stated that the quarrel arose from her father's
jealousy of "Gabi" their neighbor. Imelda ran to the
The Solicitor General for plaintiff-appellee. house of her uncle, Alberto Baltar who immediately
went to his sister's house. Alberto saw his sister already
David E. Calvario for defendant-appellant. dead, the accused-appellant drumming the death
weapon against the window sill. When the police 4. Incised wound at the medial and posterior
arrived at the scene, Quibate was still holding the aspect of the left forearm, 1 cm. wide, gapping, (sic)
knife. The accused tried to kill himself with the knife involving the skin.
pointed at his chest but when Corporal Calixto
Morales fired a shot with his revolver, the accused 5. Abrasions-hematoma at the right arms and
surrendered the knife. forearms.

The wounds suffered by the deceased were stated The deceased died of shock secondary to profuse
by Dr. Manuel Buenvenida, rural health physician of hemorrhage.
President Roxas, Capiz, in his autopsy report as
follows: The accused-appellant raised two assignments of
errors in this appeal, namely —
l. Incised wound at the left side of the chest
above nipple, perforating, 1" wide. I. THE COURT ERRED IN MOTO PROPRIO
CANCELLING THE PROMULGATION OF DECISION OF
2. Incised wound at the right side of the chest below MARCH 4, 1980.
the nipple, perforating, 1" wide.
II. THE COURT ERRED IN CONVICTING THE ACCUSED
3. Incised wound at the left side of abdomen, at OF THE CRIME OF PARRICIDE.
the iliac side, 4" below the navel, perforating, 1" wide.
The trial court promulgated its decision on March 4,
1980 sentencing the accused to an indeterminate
period of imprisonment of 12 years minimum to 17
years maximum. However, immediately after On March 20, 1980, the counsel de oficio was again
promulgating it on that day, the court had second absent so the court appointed a well-known
thoughts and issued the following order: practitioner in the area, Atty. Jose Alovera, to assist
the accused in the promulgation and to coordinate
After the promulgation of this case, the court moto with the other counsel Atty. Antonio Bisnar.
proprio cancels the promulgation upon noting that Promulgation was re-set to April 1, 1980.
the regular counsel de oficio, Atty. Antonio Bisnar
was not around at the time and the accused refused On March 27, 1980, Atty. Alovera filed a motion to
to sign receipt of a copy of the decision and upon advance the date of promulgation to March 31,
noting that there was a typographical error in the 1980 as counsel had to leave for Iloilo City on April 1,
decision consisting of the wrong penalty and the 1980. The motion to advance the date of
court noting further that the decision have not been promulgation was considered on April 1, 1980.
filed. Promulgation was re-set to April 11, 1980.

Notifying accused and counsel of the new date of On April 11, 1980, an oral motion to quash
promulgation which is hereby set for March 20, 1980. promulgation was made. No memorandum in
support of the motion was filed and the records fail
It may be noted that apart from cancelling the to indicate the grounds relied upon by counsel. On
promulgation, the court ordered that the accused June 9, 1980, the motion to quash promulgation was
and his missing counsel be notified of the new date denied. The promulgation was reset to June 13, 1980
of promulgation which was set for March 20, 1980. on which date the questioned decision imposing
reclusion perpetua instead of the earlier
indeterminate period of imprisonment of 12 years as accused were married. Father Gaudioso Tropico, on
minimum and 17 years as maximum was rendered. re-direct examination was asked to go around the
courtroom and identify the "Teodulfo Quibate" whose
We resolve the second assignment of error first. The marriage he solemnized. He did so and picked out
allegation that the marriage of the accused- the accused-appellant. The accused-appellant did
appellant and the deceased was not established not deny the marriage but admitted during trial that
has no merit. he and his late wife were married, that they were
married by Father Tropico who testified in the case.
The marriage contract (Exhibit B) evidencing the
marriage solemnized on May 16, 1954 was The appellant raises no issue in this appeal regarding
introduced in evidence. Father Gaudioso Tropico of his main defense during the trial below — that the
the Roman Catholic church testified that he acted in self-defense. We have nonetheless
solemnized the marriage of the accused and Prima examined the records on this point because of the
Baltar and that the newly married couple, the serious nature of the crime. We find no error in the
witnesses, and himself signed the said marriage court's rejecting this defense. The allegation of self-
contract in each others presence. True, the contract defense has no basis.
shows that Prima Baltar was married to "Teodulfo"
Quibate but defense witness Atty. Jose Azarraga The accused-appellant testified that two months
testified that the accused used the name "Teodulfo" before the fatal incident, he caught his wife having
when they were classmates. The accused himself sexual intercourse with their neighbor "Gabi" or
admitted that he used to be called "Teodulfo". On "Gabe" and that he called her to come up their
the fact of marriage, Alberto Baltar testified that he house. He was so angry that he boxed her. Gabi was
was present in church when his sister and the not only bigger than the accused, but he also had a
gun. Yet when he wanted to have sexual intercourse promulgation already effected simply because the
with his wife, she refused. When he insisted, she still accused refused to sign. According to the
refused. According to the accused, he begged for appellant's brief, the appellant refused to sign
almost two hours to have sex with his wife but she because he did not know how to write.
refused. Later on, he noticed that she took a knife
from a "baul" or clothes trunk by her side and tried to It is not required that counsel for the accused must
stab him. They grappled for the knife and she was hit. be present when judgment is promulgated for it to
The trial court found the story of self-defense not be valid and effective. However, considering the
believable. We agree. The accused-appellant, in a fit level of intelligence of the accused and the serious
of jealousy, stabbed his wife inflicting the four nature of the offense, the Court had reason to
separate incised wounds described in the autopsy require counsel's presence during promulgation. The
report, which resulted in shock, profuse hemorrhage, court, however, followed a manifestly strange
and death. procedure when it pronounced the sentence of
conviction and then immediately afterwards,
The appellant states in his first assignment of error that reconsidered and cancelled the whole thing on the
the lower court erred in cancelling the March 4, 1980 ground, among others, that the lawyer was not
promulgation because the grounds given by the present. On noticing that there was no lawyer for the
court do not warrant such a cancellation. accused, the Court should have deferred the
promulgation of the decision if it wanted counsel to
The appellant questions the cancellation and be around.
resetting of promulgation stating that the counsel did
not have to be present during the promulgation of It is obvious from the appealed decision that the
judgment and that there was no need to nullify a presiding Judge had conflicting feelings in his mind
when the date for promulgation arrived. If so, he The procedure followed by the lower court is not the
should have resolved them before going ahead. most appropriate under the circumstances but it
does not constitute a ground to nullify the decision
The decision reads, in part: later promulgated.

The Court finds in accordance with Art. 13, of the The second reason about the refusal to sign may
Revised Penal Code, mental weakness, and have been insufficient to warrant postponement of
voluntary surrender. Likewise, the Court considers the promulgation of judgment but, under the
history of infidelity of the victim's wife, coupled with circumstances, it is not a basis to set aside or modify
her refusal to perform her marital duties, after the appealed decision.
accused had begged for two (2) hours, immediately
preceding the stabbing, as analogous to an Regarding the last ground for the first assignment of
aggression and should also be considered mitigating. error, it is unlikely that the imposition of a sentence of
The Court believes that the attitude and behaviour of 12 to 17 years imprisonment instead of reclusion
the accused, such as the tenderness he showed to perpetua would be a typographical error. It was not.
his daughter Imelda after the latter's testimony, shows It was an error of hasty judgment based on a
remorse and lack of real malice. misapprehension of the provisions of the Revised
Penal Code applicable to the facts of the case. The
In view thereof, the Court recommends Executive lower court made a mistake and it should have
Clemency, such as would reduce the imprisonment taken immediate steps to rectify it instead of waiting
to a lesser period. for more than three months.
The more serious questions arising from the facts of A judgment in a criminal case becomes final after
this case are not raised in the appellant's brief but the lapse of the period for perfecting an appeal, or
the Court has decided to resolve them considering when the sentence has been partially or totally
that a man's liberty is at stake and the lower court satisfied or served, or the defendant has expressly
itself has recommended executive clemency for the waived in writing his right to appeal.
appellant.
In the case at bar, the judgment of conviction and its
What was the effect of the cancellation of promulgation were set aside on the very day that the
promulgation on March 4, 1980? Did the decision judgment was promulgated. At that time, the period
whose promulgation was cancelled become final for perfecting an appeal had not lapsed; and the
and executory fifteen days later on March 19, 1980? accused had not waived his right to appeal. Only if
Did the court have jurisdiction to impose the penalty he were deemed to have commenced service of his
of reclusion perpetua on June 13, 1980? sentence could the judgment be deemed final.

Under Section 7 of Rule 120 of the Rules of Court, a The law gives the accused 15 days after
judgment of conviction may be modified or set aside promulgation of a judgment of conviction within
by the court rendering it before the judgment which to decide whether he will take an appeal or
becomes final or an appeal is perfected. In the not; and unless he has expressly waived in writing his
instant case, no appeal had been perfected when right to appeal or has voluntarily commenced
the trial court set aside its judgment and cancelled its service of his sentence, the accused may yet take
promulgation. But had the judgment become final? an appeal within the 15-day period. (See People vs.
The cited section provides: Valle, 7 SCRA 1025; Mabuhay Insurance and
Guaranty, Inc. vs. Court of Appeals, 32 SCRA 245).
The accused was returned to the same detention commenced to serve a sentence based on a
cell where he was confined pending trial. He never cancelled and, therefore, non-existent promulgation.
intimidated acceptance of the judgment or that he
would no longer appeal. We find in this case an opportune occasion to
remind an trial courts to devote a little more time to
From the above considerations, it follows that when the study of the penalty provisions of the Revised
the trial court cancelled the promulgation it had just Penal Code immediately before promulgating each
concluded, it were as if no decision had been decision, to obviate the necessity of issuing
rendered and no judgment had been imposed. The amended or "repromulgated" decisions increasing
promulgation or the entire process had been set sentences of imprisonment. Trial courts should likewise
aside to be effected on a future date. The decision note the dictum in Flores v. Dalisay (84 SCRA 46, 48).
promulgated on June 13, 1980 would not merely be
an amendment of the sentence imposed earlier but What the trial court should have done was to have
would be the decision itself being promulgated in the categorically asked the counsel de oficio of the
case. Consequently, there was no judgment to accused (who was not the counsel de oficio who
become final and executory except from June 13, handled the defense of the accused) whether or not
1980. If the court had decided to commit the he would appeal. Because the accused did not file
accused to jail on March 19, 1980, there would have any notice of appeal immediately after the
been no basis for the execution of judgment and the judgment was promulgated, the trial court jumped to
commitment as the decision promulgated earlier the conclusion that he had no intention of taking an
had been cancelled and set aside. The accused appeal. ...
could not have accepted a judgment or
Considering the factual circumstances of this case, Fernando, C.J., Concepcion, Jr., Guerrero, Abad
the low intelligence of the accused, and the gravity Santos, Melencio-Herrera, Plana, Relova, De la
of the offense of parricide, it was the duty of the Fuente, and Cuevas, JJ., concur.
lower court on March 4, 1980 to ascertain whether or
not the detention prisoner whose sentence of
conviction had just been read intended to appeal. DIGEST
Upon the answer would have depended its power to #28. PEOPLE VS. OBSANIA [23 SCRA 1249; G.R. L-
modify the decision but within the period for the 24447; 29 JUN 1968]
taking of an appeal.
Facts:
WHEREFORE, the judgment of the Court of First
Instance of Capiz finding the accused-appellant The accused was charged with Robbery with
guilty beyond reasonable doubt of the crime of Rape before the Municipal Court of Balungao,
parricide and sentencing him to suffer the penalty of Pangasinan. He pleaded not guilty. His counsel
reclusion perpetua is hereby AFFIRMED. The accused- moved for the dismissal of the charge for
appellant is also ordered to indemnify the heirs of failure to allege vivid designs in the info. Said
Prima Baltar Quibate in the sum of THIRTY THOUSAND motion was granted. From this order of dismissal
(P30,000.00) PESOS. the prosecution appealed.

SO ORDERED. Issue:

Whether or Not the present appeal places the

accused in Double Jeopardy.
 rendering a judgment of conviction against him.
Held: In essence, where a criminal case is dismissed
provisionally not only with the express consent
In order that the accused may invoke double of the accused but even upon the urging of his
jeopardy, the following requisites must have counsel there can be no double jeopardy
obtained in the original prosecution, a) valid under Sect. 9 Rule 113, if the indictment against
complaint, b) competent court, c) the him is revived by the fiscal.
defendant had pleaded to the charge, d)
defendant was acquitted or convicted or the
case against him was dismissed or otherwise
terminated without his express consent. In the FULL CASE
case at bar, the converted dismissal was
ordered by the Trial Judge upon the G.R. No. L-24447 June 29, 1968
defendant's motion to dismiss. The ―doctrine of
double jeopardy‖ as enunciated in P.vs. Salico THE PEOPLE OF THE PHILIPPINES, plaintiff-appellant,
applies to wit when the case is dismissed with vs.
the express consent of the defendant, the WILLY OBSANIA, defendant-appellee.
dismissal will not be a bar to another
prosecution for the same offense because his Office of the Solicitor General for plaintiff-appellant.
action in having the case is dismissed constitutes Maximo V. Cuesta, Jr. for defendant-appellee.
a waiver of his constitutional right/privilege for
the reason that he thereby prevents the Court
from proceeding to the trial on the merits and CASTRO, J.:
 Dollente, against her will and on the roadside in the
Before us for review, on appeal by the People of the ricefields at the above-mentioned place while she
Philippines, is an order, dated January 8, 1965, of the was alone on her way to barrio San Raymundo.
Court of First Instance of Pangasinan dismissing, upon
motion of the defense, an indictment for rape After the case was remanded to the Court of First
against Willy Obsania. Instance of Pangasinan for further proceedings, the
assistant provincial fiscal filed an information for rape
On November 22, 1964, barely a day after the against the accused, embodying the allegations of
occurence of the alleged crime, Erlinda Dollente, the the above complaint, with an additional averment
14-year old victim, and her parents, Ciriaco Dollente that the offense was committed "with lewd designs".
and Carmelita Lureta, filed in the municipal court of
Balungao, Pangasinan a complaint for rape with The accused pleaded not guilty upon arraignment,
robbery, 1 alleging and forthwith his counsel moved for the dismissal of
the case, contending that the complaint was fatally
That on or about the 21st day of November 1964, at defective for failure to allege "lewd designs" and that
around 2:00 to 3:00 in the afternoon, particularly in the subsequent information filed by the fiscal which
sitio Cawakalan, barrio of Capulaan, municipality of averred "lewd designs" did not cure the jurisdictional
Balungao, Province of Pangasinan, Philippines and infirmity. The court a quo granted the motion and
within the jurisdiction of the Honorable Court, the said ordered dismissal of the action, ruling that "the failure
accused Willy Obsania, armed with a dagger, by of the complaint filed by the offended party to
means of violence and intimidation, willfully, allege that the acts committed by the accused were
unlawfully and feloniously did then and there have with 'lewd designs' does not give this Court
carnal knowledge of the complainant Erlinda
jurisdiction to try the case." From this order, the fiscal such element must be always present in order that
brought the instant appeal. they may be considered in contemplation of law.

Two issues are tendered for resolution, namely: first, Nothing in the foregoing statement can be
are "lewd designs" an indispensable element which reasonably interpreted as requiring an explicit
should be alleged in the complaint?, and, second, allegation of "lewd design" in a complaint for rape.
does the present appeal place the accused in We hold in no uncertain terms that in a complaint for
double jeopardy? rape it is not necessary to allege "lewd design" or
"unchaste motive", for to require such averment is to
Both must be answered in the negative. demand a patent superfluity. Lascivious intent
inheres in rape and the unchaste design is manifest in
The accused, in his motion to dismiss, as well as the the very act itself — the carnal knowledge of a
trial judge, in his order of dismissal, rely basically on woman through force or intimidation, or when the
the ruling in People vs. Gilo (L-18202, April 30, 1964). In woman is deprived of reason or otherwise
the case which involved a prosecution for acts of unconscious, or when the woman is under twelve
lasciviousness this Court, in passing, opined that "lewd years of age. 2
design" is
It is clear that the complaint here satisfies the
... an indispensable element of all crimes against requirements of legal sufficiency of an indictment for
chastity, such as abduction, seduction and rape, rape as it unmistakably alleges that the accused had
including acts of lasciviousness ... an element that carnal knowledge of the complainant by means of
characterizes all crimes against chastity, apart from violence and intimidation. We therefore hold that the
the felonious or criminal intent of the offender, and trial judge erred in dismissing the case on the
proffered grounds that the complaint was defective upon a valid complaint or information or other formal
for failure to allege "lewd design" and, as a charge sufficient in form and substance to sustain a
consequence of such infirmity, that the court a quo conviction, and after the defendant had pleaded to
did not acquire jurisdiction over the case. The error of the charge, the conviction or acquittal of the
the trial judge was in confusing the concept of defendant or the dismissal of the case shall be a bar
jurisdiction with that of insufficiency in substance of to another prosecution for the offense charged, or
an indictment. for any attempt to commit the same or frustration
thereof, or for any offense which necessarily includes
We come now to the more important issue of double or is necessarily included in the offense charged in
jeopardy. The accused maintains that "assuming, the former complaint or information.
arguendo, that the argument is right that the court a
quo has jurisdiction, the appeal of the Government In order that the protection against double jeopardy
constitutes double jeopardy." may inure in favor of an accused, the following
requisites must have obtained in the original
An appeal by the prosecution in a criminal case is prosecution: (a) a valid complaint or information; (b)
not available if the defendant would thereby be a competent court; (c) the defendant had pleaded
placed in double jeopardy. 3 Correlatively, section 9, to the charge; and (d) the defendant was acquitted,
Rule 117 of the Revised Rules of Court provides: or convicted, or the case against him was dismissed
or otherwise terminated without his express consent.
When a defendant shall have been convicted or
acquitted, or the case against him dismissed or The complaint filed with the municipal court in the
otherwise terminated without the express consent of case at bar was valid; the court a quo was a
the defendant, by a court of competent jurisdiction, competent tribunal with jurisdiction to hear the case;
the record shows that the accused pleaded not the accused personally or through counsel, such
guilty upon arraignment. Hence, the only remaining dismissal is to be regarded as with the express
and decisive question is whether the dismissal of the consent of the accused and consequently he is
case was without the express consent of the deemed to have waived 4 his right to plead double
accused. jeopardy and/or he is estopped 5 from claiming such
defense on appeal by the Government or in another
The accused admits that the controverted dismissal indictment for the same offense.
was ordered by the trial judge upon his motion to
dismiss. However, he vehemently contends that This particular aspect of double jeopardy — dismissal
under the prevailing jurisprudence, citing People vs. or termination of the original case without the express
Bangalao, et al. (94 Phil. 354, February 17, 1954), consent of the defendant — has evoked varied and
People vs. Labatete (L-12917, April 27, 1960), People apparently conflicting rulings from this Court. We
vs. Villarin (L-19795, July 31, 1964), and People vs. must untangle this jurisprudential maze and fashion
Cloribel (L-20314, August 31, 1964), an erroneous out in bold relief a ruling not susceptible of
dismissal of a criminal action, even upon the equivocation. Hence, a searching extended review
instigation of the accused in a motion to quash or of the pertinent cases is imperative.
dismiss, does not bar him from pleading the defense
of double jeopardy in a subsequent appeal by the The doctrine of waiver of double jeopardy was
Government or in a new prosecution for the same enunciated and formally labelled as such for the first
offense. The accused suggests that the above- time in 1949 in People vs. Salico, supra, with three
enumerated cases have abandoned the previous justices dissenting. 6 In that case, the provincial fiscal
ruling of this Court to the effect that when a case is appealed from the order of the trial court dismissing,
dismissed, other than on the merits, upon motion of upon motion of the defendant made immediately
after the prosecution had rested its case, an jeopardy in the court below and would be placed in
indictment for homicide, on the ground that the double jeopardy by the appeal, the defendant has
prosecution had failed to prove that the crime was waived his constitutional right not to be put in danger
committed within the territorial jurisdiction of the trial of being convicted twice for the same offense." Mr.
court, or, more specifically, that the municipality of Justice Felicisimo Feria, speaking for the majority,
Victorias in which the crime was allegedly committed reasoned that
was compromised within the province of Negros
Occidental. Rejecting the claim of the accused that ... when the case is dismissed with the express
the appeal placed him in double jeopardy, this consent of the defendant, the dismissal will not be a
Court held that the dismissal was erroneous because bar to another prosecution for the same offense;
the evidence on record showed that the crime was because, his action in having the case dismissed
committed in the town of Victorias and the trial constitutes a waiver of his constitutional right or
judge should have taken judicial notice that the said privilege, for the reason that he thereby prevents the
municipality was included within the province of court from proceeding to the trial on the merits and
Negros Occidental and therefore the offense rendering a judgment of conviction against him.
charged was committed within the jurisdiction of the
court of first instance of the said province. In ruling The Salico doctrine was adhered to and affirmed in
that the appeal by the Government did not put the People vs. Marapao (85 Phil. 832, March 30, 1950),
accused in peril of a second jeopardy, this Court Gandicela vs. Lutero (88 Phil. 299, March 5, 1951),
stressed that with "the dismissal of the case by the People vs. Pinuela, et al. (91 Phil. 53, March 28, 1952),
court below upon motion of the defendant, the Co Te Hue vs. Encarnacion (94 Phil. 258, January 26,
latter has not been in jeopardy," and "assuming, 1954), and People vs. Desalisa (L-15516, December
arguendo, that the defendant had been already in 17, 1966).
 necessarily embraced the crime of slight physical
In Marapao, the defendant was indicted for slight injuries for which the accused was indicted in the
physical injuries in the municipal court of Sibonga, justice of the peace court,
Cebu. After the prosecution had rested its case, a
continuance was had, and when trial was resumed, ... it appears that the appellee was neither convicted
the court, upon motion of the defense, ordered the nor acquitted of the previous charge against him for
case dismissed for failure of the prosecution to slight physical injuries, for that case was dismissed
appear. However, the court reconsidered this order upon his own request before trial could be finished.
upon representation of the fiscal who appeared Having himself asked for such dismissal, before a
moments later, and ordered the defense to present judgment of conviction or acquittal could have
its evidence. The accused moved to get aside the been rendered, the appellee is not entitled to invoke
latter order on the ground that it placed him in the defense of double jeopardy...
double jeopardy. Acceding to this motion, the court
dismissed the case. Subsequently, the accused was In Gandicela, this Court had occasion to reiterate
charged in the Court of First Instance of Cebu with the Salico ruling:
the offense of assault upon a person in authority,
based on the same facts alleged in the former But where a defendant expressly consents to, by
complaint for slight physical injuries. Again, upon moving for, the dismissal of the case against him, as
motion of the accused, the trial court dismissed the in the present case, even if the court or judge states
new indictment on the ground of double jeopardy. in the order that the dismissal is definite or does not
From this order, the prosecution appealed. In say that the dismissal is without prejudice on the part
upholding the appeal of the Government, this Court of the fiscal to file another information, the dismissal
observed that although the information for assault will not be a bar to a subsequent prosecution of the
defendant for the same offense. (People vs. Ylagan, In Pinuela, as in Salico, the prosecution had
58 Phil. 851; People vs. Salico, 84 Phil. 722.). presented its evidence against the defendant, and
the trial court, upon motion of the accused,
And in denying the motion for reconsideration filed dismissed the criminal action for lack of evidence
by the accused in that case, this Court held: showing that the crime charged was committed
within its territorial jurisdiction. On appeal by the
According to Section 9 of Rule 13, if a criminal case is Government, this Court found that the evidence
dismissed otherwise than upon the merits at any showed otherwise and, like in Salico, the majority
stage before judgment, without the express consent rejected the plea of double jeopardy interposed by
of the defendant, by a court of competent the accused on the ground that his virtual instigation
jurisdiction, upon a valid complaint or information, of the erroneous dismissal amounted to a waiver of
and after the defendant has pleaded to the charge, his right against a second jeopardy.
the dismissal of the case shall be definite or a bar to
another prosecution for the same offense; but if it is In Co Te Hue, it was the theory of the petitioner that
dismissed upon the petition or with the express the charge of estafa filed against him having been
consent of the defendant, the dismissal will be dismissed, albeit provisionally, without his express
without prejudice or not a bar to another consent, its revival constituted double jeopardy
prosecution for the same offense, because, in the which bars a subsequent prosecution for the same
last case, the defendant's action in having the case offense. This claim was traversed by the Solicitor
dismissed constitutes a waiver of his constitutional General who contended that considering what had
right not to be prosecuted again for the same transpired in the conference between the parties,
offense. the provisional dismissal was no bar to the
subsequent prosecution for the reason that the
dismissal was made with the defendant's express In essence, this Court held that where a criminal case
consent. This Court sustained the view of the Solicitor is dismissed provisionally not only with the express
General, thus: consent of the accused but even upon the urging of
his counsel, there can be no double jeopardy under
We are inclined to uphold the view of the Solicitor section 9, Rule 113, if the indictment against him is
General. From the transcript of the notes taken at the revived by the fiscal. This decision subscribes
hearing in connection with the motion for dismissal, it substantially to the doctrine on waiver established in
appears that a conference was held between Salico.
petitioner and the offended party in the office of the
fiscal concerning the case and that as a result of The validity and currency of the Salico doctrine were
that conference the offended party filed the motion intimated in the recent case of People vs. Fajardo (L-
to dismiss. It also appears that as no action has been 18257, June 29, 1966), and six months later were
taken on said motion, counsel for petitioner invited reaffirmed in People vs. Desalisa, supra.
the attention of the court to the matter who acted
thereon only after certain explanation was given by In Fajardo, this Court, through Mr. Justice Querube
said counsel. And when the order came the court Makalintal, observed:
made it plain that the dismissal was merely
provisional in character. It can be plainly seen that The record does not reveal that appellees expressly
the dismissal was effected not only with the express agreed to the dismissal of the information as ordered
consent of the petitioner but even upon the urging of by the trial Judge or that they performed any act
his counsel. This attitude of petitioner, or his counsel, which could be considered as express consent within
takes this case out of the operation of the rule. the meaning of the rule. While they did file a motion
asking that the case be quashed or that a
reinvestigation thereof be ordered, the court granted ... The ruling in the case of Salico, that the act of the
neither alternative. What it did was to order the defendant in moving for the dismissal of the case
prosecution to amend the complaint. This order was constitutes a waiver of the right to avail of the
in effect a denial of the motion to quash, and it was defense of double jeopardy, insofar as it applies to
only after the prosecution failed to amend that the dismissals which do not amount to acquittal or
court dismissed the case on that ground. dismissal of the case on the merits, cannot be
Consequently, even under the theory enunciated in considered to have been abandoned by the
some decisions of this Court (People vs. Salico, etc.) subsequent decisions on the matter. (Emphasis
that if a valid and sufficient information is erroneously supplied)
dismissed upon motion of the defendant he is
deemed to have waived the plea of double xxx xxx xxx
jeopardy in connection with an appeal from the
order of dismissal, appellees here are not precluded ... an appeal of the prosecution from the order of
from making such plea. dismissal (of the criminal complaint) by the trial court
will not constitute double jeopardy if (1) the dismissal
To paraphrase, had the dismissal been anchored on is made upon motion, or with the express consent, of
the motion to dismiss, the defendants would not the defendant, and (2) the dismissal is not an
have been entitled to protection against double acquittal or based upon consideration of the
jeopardy. evidence or of the merits of the case; and (3) the
question to be passed upon by the appellate court is
Then in Desalisa, this Court, in a unanimous decision purely legal; so that should the dismissal be found
penned by Mr. Justice Jesus Barrera, held that incorrect, the case would have to be remanded to
the court of origin for further proceedings, to
determine the guilt or innocence of the defendant. the accused against the jurisdiction of the military
(Emphasis supplied) tribunal was brushed aside, and he was convicted.
On review, the verdict was reversed by the
The doctrine of estoppel in relation to the plea of Commanding General who sustained Acierto's
double jeopardy was first enunciated in Acierto position on the ground of lack of jurisdiction.
which held that when the trial court dismisses a case Subsequently, he was convicted of estafa and
on a disclaimer of jurisdiction, upon the instigation of falsification based on the same facts by the Court of
the accused, the latter is estopped on appeal from first Instance of Rizal. On appeal to this Court, he
asserting the jurisdiction of the lower court in support claimed former jeopardy in the court-martial
of his plea of second jeopardy. The doctrine of proceedings, asserting that the military court actually
estoppel is in quintessence the same as the doctrine had jurisdiction. In a unanimous 7 decision, this Court,
of waiver: the thrust of both is that a dismissal, other through Mr. Justice Pedro Tuason, ruled:
than on the merits, sought by the accused in a
motion to dismiss, is deemed to be with his express This is the exact reverse of the position defendant
consent and bars him from subsequently interposing took at the military trial. As stated, he there attacked
the defense of double jeopardy on appeal or in a the court-martial's jurisdiction with the same vigor
new prosecution for the same offense. that he now says the court-martial did have
jurisdiction; and thanks to his objections, so we incline
In Acierto, the defendant was charged before a to believe, the Commanding General, upon
United States court-martial with having defrauded consultation with, and the recommendation of, the
the Government of the United States, through Judge Advocate General in Washington,
falsification of documents, within a military base of disapproved the court-martial proceedings.
the United States in the Philippines. The challenge by
xxx xxx xxx The defendants in People vs. Amada Reyes, et al.,
were charged as accessories to the crime of theft
Irrespective of the correctness of the views of the committed by their brother, Anselmo, the principal
Military authorities, the defendant was estopped accused. The latter pleaded guilty to simple theft
from demurring to the Philippine court's jurisdiction and was sentenced accordingly. The former
and pleading double jeopardy on the strength of his pleaded not guilty and subsequently filed a motion
trial by the court-martial, A party will not be allowed to quash on the ground that being brothers and
to make a mockery of justice by taking inconsistent sisters of the principal accused, they were exempt
positions which if allowed would result in brazen from criminal responsibility for the acts charged
deception. It is trifling with the courts, contrary to the against them in the information. Thereupon, the
elementary principles of right dealing and good prosecution moved to amend the information so as
faith, for an accused to tell one court that it lacks to allege that the defendants profited from the
authority to try him and, after he has succeeded in effects of the crime. In view of this development,
his effort, to tell the court to which he has been counsel for the defendants moved to withdraw their
turned over that the first has committed error in motion to quash, and objected to the proposed
yielding to his plea. (Emphasis supplied) amendment which sought to change materially the
information after plea without the consent of the
The Acierto ruling was reiterated in People vs. accused. Without acting on the petition to withdraw
Amada Reyes, et al. (96 Phil. 827, April 30, 1955); the motion to quash, the trial court denied the
People vs. Reyes, et al. (98 Phil. 646, March 23, 1956); motion of the prosecution on the ground that the
People vs. Casiano (L-15309, February 16, 1961), and proposed amendment would substantially affect the
People vs. Archilla (L-15632, February 28, 1961). fundamental rights of the accused who were
exempt from liability under the information because
of their relation to the principal culprit. Then the without the express consent of the accused.
prosecution moved for the dismissal of the case Secondly, the defendants themselves showed that
against the alleged accessories with reservation to the information in the previous case was insufficient
file a new information. The court ordered the to charge them with any criminal offense, in view of
dismissal without ruling on the reservation. their relationship with the principal accused; and it is
Subsequently, a new information was filed virtually well established doctrine that for jeopardy to attach,
reproducing the previous one except that now there there must be an information sufficient in form and
was an added allegation of intent to gain. The lower substance to sustain a conviction. Lastly, the herein
court quashed the new information upon motion of accused having successfully contended that the
the accused on the ground of double jeopardy. On information in the former case was insufficient to
appeal by the prosecution, this Court, thru Mr. Justice sustain a conviction, they cannot turn around now
J. B. L. Reyes, held that the plea of double jeopardy and claim that such information was after all,
was erroneously sustained because sufficient and did place them in danger of jeopardy
of being convicted thereunder. If, as they formerly
In the first place, the accused-appellees herein filed contended, no conviction could be had in the
a motion to quash on the ground that they incurred previous case, they are in estoppel to contend now
no criminal liability under the facts alleged in the that the information in the second case places them
information in the preceding case, No. Q-972, and in jeopardy for the second time. Their case comes
the trial court instead of allowing the withdrawal of within the spirit of the rule laid down in People vs.
the motion to quash, virtually sustained the same Acierto.
when it denied the fiscal's motion to amend, thereby
forcing the latter to dismiss the case; hence, it can
not be held that the former case was terminated
Again, in People vs. Reyes, et al., supra, this Court, the first paragraph, since the second paragraph also
speaking thru Mr. Chief Justice Paras, reiterated the speaks of 'coercions'. Inasmuch as the recitals in the
Acierto ruling thus: information do not include violence, the inevitable
conclusion is that the coercion contemplated is that
Where the complaint or information is in truth valid described and penalized in the second paragraph."
and sufficient, but the case is dismissed upon the
petition of the accused on the ground that the We come now to the case of People vs. Casiano. In
complaint or information is invalid and insufficient, this case the accused was charged with estafa in a
such dismissal will not bar another prosecution for the complaint filed with the justice of the peace court of
same offense and the defendant is estopped from Rosales, Pangasinan. The accused waived her right
alleging in the second information that the former to preliminary investigation and the record was
dismissal was wrong because the complaint or accordingly forwarded to the Court of First Instance
information was valid. of Pangasinan where the provincial fiscal filed an
information for "illegal possession and use of false
In this particular case, upon motion of the treasury or bank notes." Upon arraignment the
defendants, the trial court dismissed the information defendant pleaded not guilty. Subsequently, the
because it did not allege the use of violence, defense filed a motion to dismiss on the thesis that
notwithstanding the fact that the offense charged there had been no preliminary investigation of the
was coercion under article 287 of the Revised Penal charge of illegal possession and use of false treasury
Code. On appeal, however, this Court ruled that the or bank notes, and that the absence of such
dismissal was erroneous because "although the preliminary investigation affected the jurisdiction of
offense named in the information is coercion, it does the trial court. The motion was granted on the
not necessarily follow that the applicable provision is ground that the waiver made by the defendant in
the justice of the peace court did not deprive her of defendant in the lower court affected its jurisdiction.
the right to a preliminary investigation of an entirely The fact is that she contested its jurisdiction and that,
different crime. On appeal to this Court, it was held although such pretense was erroneous, she led the
that the dismissal was erroneous because the court to believe that it was correct and to act in
allegations of the information filed in the Court of First accordance with such belief. The elementary
Instance were included in those of the complaint principles of fair dealing and good faith demand,
filed in the justice of the peace court where the accordingly, that she be estopped now from taking
defendant had already waived her right to a the opposite stand in order to pave the way for a
preliminary investigation. On the question of whether plea of double jeopardy, unless the rule of estoppel
the appeal placed the defendant in double laid down in the Acierto case is revoked. As a matter
jeopardy, this Court, thru Mr. Chief Justice (then of fact, said rule applies with greater force to the
Associate Justice) Concepcion, observed that the case at bar than to the Acierto case, because the
situation of Casiano was identical to that of the same involved two (2) separate proceedings before
accused in Acierto courts deriving their authority from different
sovereignties, whereas the appeal in the case at bar
... were she to plead double jeopardy in this case, for is a continuation of the proceedings in the lower
such plea would require the assertion of jurisdiction of court, which like this Supreme Court, is a creature of
the court of first instance to try her and that the same the same sovereignty. In short the inconsistency and
erred in yielding to her plea therein for lack of impropriety would be more patent and glaring in this
authority therefor. In the language of our decision in case than in that of Acierto, if appellant herein
the Acierto case, it is immaterial whether or not the pleaded double jeopardy in this instance.
court a quo had said authority. It, likewise, makes no
difference whether or not the issue raised by
This Court then forthnightly stated that "the rule of jurisdiction, for the same "must exist as a matter of
estoppel applied in the Acierto case should be law, and may not be conferred by consent of the
maintained, because: parties or by estoppel" (5 C.J.S. 861-863). However, if
the lower court had jurisdiction, and the case was
1. It is basically and fundamentally sound and just. heard and decided upon a given theory, such, for
instance, as that the court had no jurisdiction, the
2. It is in conformity with the principles of legal ethics, party who induced it to adopt such theory will not be
which demand good faith of the higher order in the permitted, on appeal, to assume an inconsistent
practice of law. position — that the lower court had jurisdiction. Here,
the principle of estoppel applies. The rule that
3. It is well settled that parties to a judicial jurisdiction is conferred by law, and does not depend
proceeding may not, on appeal, adopt a theory upon the will of the parties, has no bearing thereon.
inconsistent with that which they sustained in the
lower court. Twelve days after Casiano, this Court, in People vs.
Archilla, supra, invoked anew the doctrine of
xxx xxx xxx estoppel. In this case Alfreda Roberts, together with
Jose Archilla, was charged with bigamy. After
4. The operation of the principle of estoppel on the pleading not guilty, Roberts, through his counsel, filed
question of jurisdiction seemingly depends whether a motion praying that the complaint be quashed
the lower court actually had jurisdiction or not. If it with regard to her on the ground that the facts
had no jurisdiction, but the case was tried and alleged therein did not constitute the offense
decided upon the theory that it had jurisdiction, the charged for failure to aver that "insofar as Alfreda
parties are not barred on appeal, from assailing such Roberts is concerned, her marriage to Jose Luis
Archilla was her second marriage ..." On appeal, the Consequently, appellee is now estopped from
prosecution contended that the trial court erred in invoking the plea of double jeopardy upon the
granting the motion to quash, because the theory that she would still be convicted under an
complaint was sufficient and at least charged the information which she branded to be insufficient in
accused as an accomplice. The defendant the lower court.
maintained that even if that were true, the quashing
of the information amounted to her acquittal which The accused in this case now before us nevertheless
prevented the prosecution from taking the said insists that the Salico doctrine and "necessarily
appeal as it would place her in double jeopardy. Mr. analogous doctrines" were abandoned by this Court
Justice Felix Bautista Angelo, writing for the majority, in Bangalao, Labatete, Villarin and Cloribel.
ruled that the trial court erred, and proceeded to
emphasize that the accused In Bangalao, the complaint filed by the victim's
mother alleged that the rape was committed "by
... cannot now be allowed to invoke the plea of means of force and intimidation" while the
double jeopardy after inducing the trial court to information filed by the fiscal alleged that the
commit an error which otherwise it would not have offended party was a "minor and demented girl" and
committed. In other words, appellee can not adopt that the defendants "successively had sexual
a posture of double dealing without running afoul intercourse with her by means of force and against
with the doctrine of estoppel. It is well-settled that the the will of Rosita Palban." After the accused had
parties to a justiciable proceeding may not, on pleaded not guilty, the defense counsel moved for
appeal, adopt a theory inconsistent with that which the dismissal of the case on the ground that the trial
they sustained in the lower court (Williams v. court lacked jurisdiction to try the offense of rape
McMicking, 17 Phil. 408; Molina v. Somes, etc.). charged by the fiscal since it was distinct from the
one alleged in the complaint which did not aver that consent of the accused (this aspect of double
the victim was a demented girl". The lower court jeopardy not being in issue). Hence, the ruling in
sustained the motion and dismissed the case for lack Salico — that the dismissal was with the express
of jurisdiction. On appeal by the prosecution, this consent of the accused because it was granted
Court held that the trial judge erred in dismissing the upon his instigation thru a motion to dismiss — was
case for lack of jurisdiction, but ruled, however, that not passed upon in Bangalao.
the appeal could not prosper because it placed the
accused in double jeopardy. A case of striking factual resemblance with Salico is
People vs. Ferrer (100 Phil. 124, October 23, 1956). In
As the court below had jurisdiction to try the case this case, after the prosecution had rested, the
upon the filing of the complaint by the mother of the accused filed a motion to dismiss on the ground that
offended party, the defendants-appellees would be the territorial jurisdiction of the trial court had not
placed in double jeopardy if the appeal is allowed. been published. Acting on this motion, the lower
court dismissed the case. The prosecution appealed.
After mature analysis, we cannot agree that this This Court found that the evidence on record,
Court in Bangalao impliedly abandoned the Salico contrary to the finding of the trial court, amply
doctrine on waiver. Bangalao was decided solely on proved the jurisdiction of the lower tribunal. However,
the question of jurisdiction. This Court, however, after without the defendant interposing the plea of
holding that the lower tribunal had jurisdiction, double jeopardy, this Court held that "the
decided outright to repress the appeal by the Government however meritorious its case cannot
Government on the ground of double jeopardy appeal the order of dismissal without violating the
without considering whether the appealed order of right of the defendant not to be placed in double
dismissal was issued with or without the express jeopardy." Again, like in Bangalao, this Court did not
consider the nature of dismissal — whether it was with ground of double jeopardy. This Court, in sustaining
or without the express consent of the defendant. the appealed order of dismissal, held:

The accused in the case at bar avers that the Salico If the amended information were to be admitted,
doctrine was formally and expressly abandoned in the accused will be deprived of his defense of
People vs. Labatete, supra. In the latter case, the trial double jeopardy because by the amended
court, upon motion of the defendant, dismissed the information he is sought to be made responsible for
original information for estafa on the ground that it the same act of borrowing on a mortgage for which
did not allege facts constituting the offense charged. he had already begun to be tried and acquitted by
The information recited that the accused had the dismissal of the original information.
contracted a loan from the complainant, giving as
security the improvements and products of his xxx xxx xxx
property (a piece of land), without averring that the
said property, which was allegedly mortgaged by ... the trial court found that the accused could not
the accused to the Rehabilitation Finance be found guilty of any offense under the information.
Corporation, formed part of the security. The judgment entered was not one of dismissal but of
Consequently, the fiscal filed an amended acquittal, and whether the judgment is correct or
complaint alleging that the accused also gave as incorrect, the same constitutes a bar to the
security the land in question, which he later presentation of the amended information sought to
mortgaged to the damage and prejudice of the be introduced by the fiscal. (Emphasis supplied)
complaining creditor. This amended information was
also dismissed upon motion of the defendant on the In not applying the Salico doctrine, this Court,
through Mr. Justice Alejo Labrador, expounded:
 that the controverted dismissal in Salico was in fact
... The judgment of the trial court (in People vs. an acquittal." Reasoning a contrario, had the
Salico) was in fact an acquittal because of the dismissal not amounted to acquittal, then the
failure on the part of the fiscal to prove that the doctrine of waiver would have applied and
crime was committed within the jurisdiction of the prevailed. As a matter of fact we believe with the
court. The judgment was in fact a final judgment of majority in Salico that the dismissal therein was not on
acquittal. The mere fact that the accused asked for the merits and therefore did not amount to an
his acquittal after trial on the merits (after the acquittal:
prosecution had rested its case) is no reason for
saying that the case was "dismissed" with his express If the prosecution fails to prove that the offense was
consent and he may again be subjected to another committed within the territorial jurisdiction of the
prosecution. court and the case is dismissed, the dismissal is not an
acquittal, inasmuch as if it were so the defendant
From the above named statement, it is clear that could not be again prosecuted for the same offense
what in Salico was repudiated in Labatete was the before a court of competent jurisdiction; and it is
premise that the dismissal therein was not on the elemental that in such case the defendant may
merits and not the conclusion that a dismissal, other again be prosecuted for the same offense before a
than on the merits, sought by the accused, is court of competent jurisdiction.
deemed to be with his express consent and therefore
constitutes a waiver of his right to plead double Granting, however, that the Salico doctrine was
jeopardy in the event of an appeal by the abandoned in Labatete, it was resurrected in
prosecution or a second indictment for the same Desalisa. Moreover, Labatete never mentioned the
offense. This Court, in Labatete, merely pointed out
doctrine of estoppel enunciated in Acierto which case was dismissed without the express consent of
had been repeatedly reaffirmed. the accused even if it was upon the motion of his
counsel, for to do so would place the accused in
To bolster his contention that the Salico doctrine has double jeopardy. The only exception to the rule on
been dropped from the corpus of our jurisprudence, the matter is when the dismissal is with the consent of
the accused cites People vs. Villarin, supra. Here the the accused, and here this consent has not been
accused appealed to the Court of First instance his obtained. (Emphasis supplied)
conviction in the inferior court for acts of
lasciviousness with consent. After conducting the Villarin gives the impression, as gleaned from the
preliminary investigation, the fiscal charged the above statement, that this Court therein sustained
accused with corruption of minors. Villarin pleaded the plea of double jeopardy on the ground that
not guilty, and before the case could be heard, his dismissal was without the express consent of the
counsel filed a motion to dismiss on the ground that defendant as it was ordered "upon the motion of his
the information did not allege facts constituting the counsel" and not upon motion of the defendant
crime charged. Acting on this motion, the trial court himself. This conclusion is rather unfortunate and must
dismissed the case. On appeal by the prosecution, be rectified, for the settled rule is that the acts of
this Court thru Mr. Justice Felix Angelo Bautista, held counsel in a criminal prosecution bind his client. Thus,
that the dismissal was erroneous, but that this error in People vs. Romero (89 Phil. 672, July 31, 1951), this
Court held categorically that
... cannot now be remedied by setting aside the
order dismissal of the court a quo and by remanding The fact that the counsel for the defendant, and not
the case to it for further proceedings as now the defendant himself personally moved for the
suggested by the prosecution considering that the dismissal of the case against him, had the same
effect as if the defendant had personally moved for In asserting that Criminal Case No. 45717 may still be
such dismissal, inasmuch as the act of the counsel in reinstated, the petitioner adopts the ruling once
the prosecution of the defendant's cases was the act followed by the Court to the effect that a dismissal
of the defendant himself , for the only case in which upon the defendant's own motion is a dismissal
the defendant cannot be represented by his counsel consented to by him and, consequently, will not be a
is in pleading guilty according to Section 3, Rule 114, bar to another prosecution for the same offense,
of the Rules of Court. (Emphasis supplied) because, his action in having the case dismissed
constitutes a waiver of his constitutional right or
On this consideration alone, we cannot agree with privilege, for the reason that he thereby prevents the
the accused in the case at bar that this Court in court from proceeding to the trial on the merits and
Villarin intended to abandon the Salico ruling. Had rendering a judgment of conviction against him.
the motion to dismiss filed by Villarin's counsel been (People v. Salico, 84 Phil. 772) But, this authority has
considered as one made by the defendant himself, long been abandoned and the ruling therein
as should have been done, the Villarin case should expressly repudiated.
have been resolved consistent with the doctrine of
waiver in Salico and/or that of estoppel in Acierto. Thus, in the case of People v. Robles, G.R. No. L-
12761, June 29, 1959, citing People v. Bangalao, L-
As a final citation in support of his theory, the 5610, February 17, 1954; People v. Diaz, L-6518, March
accused in the case at bar invokes People vs. 30, 1954; People v. Abano, L-7862, May 17, 1955; and
Clolibel, supra, where this Court, in sustaining the People v. Ferrer, L-9072, October 23, 1956, We said:
plea of double jeopardy interposed by the
defendants, stated inter alia: ... In reaching the above conclusion, this Court has
not overlooked the ruling in People vs. Salico, 47 O.G.
4765, to the effect that a dismissal upon defendant's actually abandon the doctrine of waiver in Salico
motion will not be a bar to another prosecution for (and not one of the said cases even implied the
the same offense as said dismissal was not without slightest departure from the doctrine of estoppel
the express consent of the defendant, which ruling established in Acierto). In Diaz, Abaño, Tacneng and
the prosecution now invokes in support of its appeal; Robles which are cited above, like in Cloribel, the
but said ruling is not now controlling, having been dismissals therein, all sought by the defendants, were
modified or abandoned in subsequent cases considered acquittals because they were all
wherein this Court sustained the theory of double predicated on the right of a defendant to a speedy
jeopardy despite the fact that dismissal was secured trial and on the failure of the Government to
upon motion of the accused. (Emphasis supplied) prosecute. Therefore, even if such dismissals were
induced by the accused, the doctrines of waiver
Also, the rule that a dismissal upon defendant's and estoppel were obviously inapplicable for these
motion will not be a bar to another prosecution for doctrines presuppose a dismissal not amounting to
the same offense as said dismissal is not without the an acquittal.
express consent of the defendant, has no
application to a case where the dismissal, as here, is This Court, through Mr. Justice Marceliano
predicated on the right of a defendant to a speedy Montemayor, held in People vs. Diaz (94 Phil. 714,
trial. (People vs. Tacneng, et al., G.R. No. L-12082, March 30, 1954):
April 30, 1959). (emphasis supplied)
Here the prosecution was not even present on the
The above statements must be taken in the proper day of trial so as to be in a position to proceed with
context and perspective. As previously explained, the presentation of evidence to prove the guilt of the
Bangalao, Ferrer, and even Labatete, did not accused. The case was set for hearing twice and the
prosecution without asking for postponement or was justified in dismissing the case upon motion of
giving any explanation, just failed to appear. So the the defense ... The defendant was placed in
dismissal of the case, though at the instance of jeopardy for the offense charged in the information
defendant Diaz may, according to what we said in and the annulment or setting aside of the order of
the Gandicela case, be regarded as an acquittal. dismissal would place him twice in jeopardy of
(emphasis supplied) punishment for the same offense. (emphasis
supplied)
A similar result was reached by this Court thru Mr.
Justice Sabino Padilla, in People vs. Abano (97 Phil. Then in People vs. Tacneng (L-12082, April 30, 1959),
28, May 27, 1955), in this wise: Mr. Justice Pastor Endencia, speaking for a
unanimous Court, stressed that
After a perusal of the documents attached to the
petition for a writ of certiorari, we fail to find an abuse ... when criminal case No. 1793 was called for
of discretion committed by the respondent judge. He hearing for the third time and the fiscal was not
took pains to inquire about the nature of the ailment ready to enter into trial due to the absence of his
from which the complaining witness claimed she was witnesses, the herein appellees had the right to
suffering. He continued the trial three times, to wit: on object to any further postponement and to ask for
27 May, 1 and 12 June. The defendant was entitled the dismissal of the case by reason of their
to a speedy trial. When on 15 June, the last day set constitutional right to a speedy trial; and if pursuant
for the resumption of the trial, the prosecution failed to that objection and petition for dismissal the case
to secure the continuance thereof and could not was dismissed, such dismissal ammounted to an
produce further evidence because of the absence acquittal of the herein appellees which can be
of the complaining witness, the respondent judge
invoked, as they did, in a second prosecution for the production of other important witnesses by the
same offense. (emphasis supplied) prosecution on a date fixed by the court and under
the understanding that no further postponement at
And this Court proceeded to distinguish the case the instance of the government would be
from People vs. Salico, thus: entertained. In both cases, the right of a defendant
to a speedy trial was never put in issue. (emphasis
We are fully aware that pursuant to our ruling in the supplied)
case of Peo. v. Salico, 45 O.G. No. 4, 1765-1776, and
later reiterated in Peo vs. Romero, L-4517-20, July 31, The gravamen of the foregoing decisions was
1951, a dismissal upon defendant's motion will not be reiterated in People vs. Robles (L-12761, June 29,
a bar to another prosecution for the same offense as 1959) where the trial court, upon motion of the
said dismissal was not without the express consent of defendant, dismissed the case on the ground that
the defendant. This ruling, however, has no the failure of the prosecution to present its evidence
application to the instant case, since the dismissal in despite several postponements granted at its
those cases was not predicated, as in the case at instance, denied the accused a speedy trial. In
bar, on the right of a defendant to a speedy trial, but rejecting the appeal of the Government, this Court
on different grounds. In the Salico case, the dismissal held:
was based on the ground that the evidence for the
prosecution did not show that the crime was In the circumstances, we find no alternative than to
committed within the territorial jurisdiction of the hold that the dismissal of Criminal Case No. 11065 is
court which, on appeal, we found that it was, so the not provisional in character but one which is
case was remanded for further proceedings; and in tantamount to acquittal that would bar further
the Romero case the dismissal was due to the non- prosecution of the accused for the same offense.
 of the court a quo, and not on the right of the
In Cloribel, the case dragged for three years and accused to a speedy trial and the failure of the
eleven months, that is, from September 27, 1958 Government to prosecute. The appealed order of
when the information was filed to August 15, 1962 dismissal in this case now under consideration did not
when it was called for trial, after numerous terminate the action on the merits, whereas in
postponements, mostly at the instance of the Cloribel and in the other related cases the dismissal
prosecution. On the latter date, the prosecution amounted to an acquittal because the failure to
failed to appear for trial, and upon motion of prosecute presupposed that the Government did not
defendants, the case was dismissed. This Court held have a case against the accused, who, in the first
"that the dismissal here complained of was not truly a place, is presumed innocent.
'dismissal' but an acquittal. For it was entered upon
the defendants' insistence on their constitutional right The application of the sister doctrines of waiver and
to speedy trial and by reason of the prosecution's estoppel requires two sine qua non conditions: first,
failure to appear on the date of trial." (Emphasis the dismissal must be sought or induced by the
supplied.) defendant personally or through his counsel; and
second, such dismissal must not be on the merits and
Considering the factual setting in the case at bar, it is must not necessarily amount to an acquittal.
clear that there is no parallelism between Cloribel Indubitably, the case at bar falls squarely within the
and the cases cited therein, on the one hand, and periphery of the said doctrines which have been
the instant case, on the other. Here the controverted preserved unimpaired in the corpus of our
dismissal was predicated on the erroneous jurisprudence.
contention of the accused that the complaint was
defective and such infirmity affected the jurisdiction
ACCORDINGLY, the order appealed from is set aside. respondents, as the accused therein, pleaded not
This case is hereby remanded to the court of origin guilty to the... charge.
for further proceedings in accordance with law. No
costs. the facts charged do not constitute an... offense
considering that Section 32 of Republic Act No.
4670 is null and void for being unconstitutional.
DIGEST
#29. People v. Dacuycuy G.R. No. L-55357 October On October 26, 1975, private respondents filed a
30, 1981 petition[6] for certiorari and prohibition with
preliminary injunction before the former Court of
Facts: First Instance of

In a complaint filed by the Chief of Police of Leyte, Branch VIII, where it was docketed as Civil
Hindang, Leyte on April 4, 1975, herein private Case No. B-622, to restrain the Municipal Judge,
respondents Celestino S. Matondo, Segundino A. Provincial Fiscal and Chief of Police of Hindang,
Leyte from proceeding with the trial of said Criminal
Caval and Cirilo M. Zanoria, public school officials Case No.
of Leyte, were charged before the Municipal Court
of Hindang, Leyte in Criminal Case No. 555... 555 upon the ground that the former Municipal
thereof for violation of Republic Act No. 4670. The Court of Hindang had no jurisdiction over the
case was set for arraignment and trial on May 29, offense charged.
1975. At the arraignment, the herein private
On March 15, 1976, the petitioner herein filed an That the penalty is grossly disproportionate to the
opposition to the admission of the said amended crime is an insufficient basis to declare the law
petition... respondent judge denied the same in unconstitutional on the ground that it is cruel and
his... resolution of April 20, 1976.[10] On August 2, unusual.
1976, herein petitioner filed a supplementary
memorandum in answer to the amended... The fact that the punishment authorized by the
petition. statute is severe does not... make it cruel or unsual.

Issues: An apparent exception to the general rule

forbidding the delegation of legislative authority to
It imposes a cruel and unusual punishment, the the courts exists in cases where discretion is
term of imprisonment being unfixed and may run conferred upon said courts. It is clear, however,
to... reclusion perpetua; and that when the courts are said to exercise a...
discretion, it must be a mere legal discretion which
(2) It also constitutes an undue delegation of is exercised in discerning the course prescribed by
legislative power, the duration of the penalty of law and which, when discerned, it is the duty of the
imprisonment being solely left to the discretion of court to follow.
the court as if the latter were the legislative...
department of the Government. criminal jurisdiction of the court is determined by
the statute in force at the time of the
Ruling: commencement of the action.
the decision and resolution of respondent judge are the accused had entered a plea of not
hereby REVERSED and SET ASIDE. Criminal Case No. guilty.chanroblesvirtualawlibrary chanrobles virtual
555 filed against private respondents... herein is law library
hereby ordered to be remanded to the Municipal
Trial Court of Hindang, Leyte Petitioner Rolando Dionaldo stands charged with the
crime of homicide in Criminal Case No. 3835 of the
Court of First Instance of Leyte, Branch IV, presided by
the respondent judge. after the accused had entered
FULL CASE a plea of not guilty, the prosecution filed a motion for
leave to amend the information, attaching thereto an
amended information charging the accused with
G.R. No. L-55357 October 30, 1981 murder qualified by treachery and evident
premeditation - a more serious offense. No
ROLANDO DIONALDO, Petitioner, vs. THE HONORABLE explanation was given in the motion for alleging
AUXENCIO DACUYCUY, Judge, Court of First Instance, evident premeditation but as to the allegation of
Branch IV, Province of Leyte, Respondent.chanrobles treachery it was explained that, "the affidavit of the
virtual law library complaining witness indicates that the attack was
sudden and it was only after they sustained the
ABAD SANTOS, J.: wounds consequent to the treacherous attack that
they were forced to fight back to repel further
In this petition We are asked to rule whether an aggression." It can thus be seen that all along this
information for the crime of homicide can be claimed circumstance was known to the prosecution
amended so as to charge the crime of murder after
but it was not alleged.chanroblesvirtualawlibrary prejudice to the rights of the
chanrobles virtual law library defendant.chanroblesvirtualawlibrary chanrobles
virtual law library
Counsel for the accused opposed the motion to
amend the information but the respondent judge If it appears at any nine before judgment that a
granted the motion: hence the petition to nullify the mistake has been made in charging the proper
action of the respondent.chanroblesvirtualawlibrary offense, the court may dismiss the original complaint
chanrobles virtual law library or information and order the filing of a new one
charging the proper offense, provided the defendant
The petition is impressed with would not be placed thereby in double jeopardy, and
merit.chanroblesvirtualawlibrary chanrobles virtual may also require the witnesses to give bail for their
law library appearance at the trial.

It is admitted that the provision which is relevant to the The petitioner invokes the first paragraph, whereas the
problem is Rule 110, Sec. 13 of the Rules of Court which respondent relies on the
stipulates: chanrobles virtual law library second.chanroblesvirtualawlibrary chanrobles virtual
law library
Section 13. Amendment. - The information or
complaint may be amended, in substance or form, To amend the information so as to change the crime
without leave of court, at any time before the charged for homicide to the more serious offense of
defendant pleads; and thereafter and during the trial murder after the petitioner had pleaded not guilty to
as to all matters of form, by leave and at the discretion the former is indubitably proscribed by the first
of the court, when the same can be done without paragraph of the above-quoted provision. For
certainly a change from homicide to murder is not a of the People while necessary is not indispensable
matter of form; it is one of substance with very serious under the circumstances. Besides an early resolution
consequences.chanroblesvirtualawlibrary chanrobles of this case is necessary to provide affirmative justice
virtual law library to the petitioner.chanroblesvirtualawlibrary
chanrobles virtual law library
But can the amendment be justified under the second
paragraph? The answer is, No. For the provision speaks WHEREFORE, the petition is granted and of the
not of amendment but of dismissal of the information respondent admitting the amended information is
In other words the provision contemplates the filing of hereby set aside. No costs.chanroblesvirtualawlibrary
a substitute, not an amended information. But, it may chanrobles virtual law library
be asked, can not the information for homicide
against the petitioner be dismissed since no judgment SO ORDERED
has yet been rendered and another information for
murder be filed? The answer, again, is No. For the
petitioner having pleaded not guilty to homicide, to
dismiss the charge against him so as to file another
charge for murder win place him thereby in double
jeopardy.chanroblesvirtualawlibrary chanrobles
virtual law library

We have not overlooked the fact that People of the

Philippines, thru the Solicitor General, should have
been made a party to this case. But the participation
 dates inclusive in the City of Manila, Philippines, the
DIGEST said accused conspiring and confederating
#30. People v. Hernando [G.R. No. 125214. October together and mutually helping each other did then
28, 1999] and there wilfully [sic], unlawfully and feloniously
defraud JOHNNY SY in the following manner, to wit:
Facts: the said accused, well knowing that they did not
have sufficient funds in the bank, and without
On September 20, 1995, complainant Johnny Sy informing the said JOHNNY SY of such fact, drew,
filed with the Office of the City Prosecutor, Manila, made out and issued to the latter the following
a complaint-affidavit against accused spouses UNION CHECKS NOS:
Elpidio Hernando and Elena Aban Hernando
alleging that the checks they issued to him on CHECK NO. DATE AMOUNT
different dates were dishonored upon presentment
to the bank for payment due to "Account Closed." 1. 046-081102 May 25, 1995 P100,000.00

On December 22, 1995, Manila Assistant Prosecutor 2. 046-081103 May 13, 1995 150,000.00
Daniel C. Villanueva filed with the Regional Trial
Court, Manila, an information charging accused 3. 046-081114 May 11, 1995 100,000.00
spouses Elpidio Hernando and Elena Aban
Hernando with estafa, committed as follows: 4. 046-081115 June 21, 1995 50,000.00

"That in or about and during the period comprised 5. 046-081116 June 8, 1995 200,000.00
between May 11, 1995 and June 21, 1995, both
6. 046-081117 June 20, 1995 100,000.00
On July 14, 1994, Elena Aban Hernando opened a
Contrary to law."[2] current account with the Union Bank of the
Philippines, Sta. Cruz Manila Branch, in the name of
On February 29, 1996, accused spouses were Herban Trading, with herself as the signatory.[7]
arraigned before the trial court and both pleaded
not guilty to the information. Trial, thereafter, Complainant Johnny Sy recounted that he first met
ensued. accused spouses sometime in February 1995 in his
Palomino Club, where Elena Hernando became a
The antecedent facts are undisputed: good customer. Out of "pakikisama" and because
of Elpidio Hernando's assurances that the checks
The prosecution presented three witnesses, namely, issued by his wife Elena Aban Hernando were good
Violeta Gonzales,[3] Renato Sanchez,[4] and checks, complainant was induced to give money in
complainant Johnny Sy;[5] while the defense the exchange for the checks. The simultaneous
presented accused Elpidio Hernando.[6] exchange of cash and checks took place on five
(5) different dates, in a span of two (2) months.
For sometime before 1994, Spouses Elpidio and
Elena Hernando were engaged in the importation The first transaction took place on May 11, 1995 at
and sale of Apple and IBM Computers, while the residence of accused spouses at No. 1624 M.
complainant Johnny Sy was the owner of Palomino Hizon Street, Sta. Cruz, Manila. Elpidio and Elena
Club, a restaurant located at 727 Evangelista St., requested Johnny Sy to change their check to
Quiapo, Manila, of which the spouses Hernando cash. Elena issued check no. 046-081104, drawn on
were good customers. Union Bank of the Philippines, Sta Cruz, Manila
Branch in the amount of P100,000.00, payable to Just like the previous transactions, accused Elena
cash. Upon receipt of the checks, Johnny gave the was not present.
cash equivalent to Elpidio.
On June 20, 1995, complainant again met accused
Two days later, or on May 13, 1995, Elena issued Elpidio at the office of Herban Trading. Check no.
check no. 046-081103 for P150,000.00 to Johnny 046-081117 in the amount of P100,000.00 was
who gave the cash equivalent to accused Elpidio changed to cash. Again, accused Elena was not
inside the Palomino Club. Elena was not present around. It was accused Elpidio who received the
when the exchange took place. cash.

The third transaction transpired on May 28, 1995 at The last exchange of check with cash was on June
the office of Herban Trading at BF Condominium 21, 1995 at the office of Herban Trading in Manila.
Building, Intramuros Manila. Johnny gave Johnny gave P50,00.00 cash to accused Elpidio in
P100,000.00 to accused Elpidio Hernando, in exchange for check no. 046-081115. Elena was not
exchange for check no. 046-081102. Though present.
accused Elena was not present when the
exchange took place, she was the one who signed
and issued the check. Ruling:

On June 8, 1995, Johnny gave P200,000.00 to Under the Indeterminate Sentence Law, if the
accused Elpidio Hernando in exchange for check offense is punished by the Revised Penal Code,
no. 046-081116 inside the office of Herban Trading. such as estafa, the court shall sentence the
accused to an indeterminate penalty, the
maximum term of which shall be that which, in view indeterminate penalty; instead the matter would
of the attending circumstances, could be properly be so taken as analogous to modifying
imposed under the rules of the Revised Penal Code, circumstances in the imposition of the maximum
and the minimum term of which shall be within the term of the full indeterminate sentence. This
range of the penalty next lower to that prescribed accords with the rule that penal laws are construed
by the Code for the offense.[25] The penalty next in favor of the accused.[27]
lower should be based on the penalty prescribed
by the Code for the offense, without first Applying the above-cited provision, accused shall
considering any modifying circumstance attendant be meted an indeterminate sentence, the
to the commission of the crime. The determination maximum of which shall be taken from the
of the minimum penalty is left by law to the sound maximum period of the basic penalty,[28] that is,
discretion of the court and it can be anywhere reclusion temporal, to be imposed in its maximum
within the range of the penalty next lower without period, plus one (1) year for each additional
any reference to the periods into which it might be P10,000.00 of the amount of the fraud, but the total
subdivided. The modifying circumstances are penalty shall not exceed thirty (30) years.[29]
considered only in the imposition of the maximum
term of the indeterminate sentence.[26] On the other hand, the minimum of the
indeterminate sentence shall be within the range of
Here, the complainant was defrauded in the the penalty next lower in degree to that prescribed
amount of seven hundred thousand (P700,000.00) by the Code for the offense, without first
pesos. The fact that the amount involved in the considering any modifying circumstance[30] nor
instant case exceeds P22,000.00 should not be the incremental penalty for the amount in excess of
considered in the initial determination of the twenty two thousand (P22,000.00) pesos.[31] Such
penalty is prision mayor,[32] with a duration of six (6)
years and one (1) day to twelve (12) years.[33] GREENNOTES
WHEREFORE, the Court hereby AFFIRMS with 163. The accused was convicted of frustrated
modification the decision of the trial court in murder. Within 15 days from promulgation, he
Criminal Case No. 95-146895, finding accused filed a Motion for New Trial based on a “newly-
spouses Elpidio Hernando and Elena Aban discovered evidence” which was granted by
Hernando guilty beyond reasonable doubt of the court. After the presentation of the alleged
estafa, defined and penalized under Article 315, “newly-discovered evidence”, the accused was
paragraph 2 (d) of the Revised Penal Code, and acquitted. May the prosecution appeal the
sentencing each of them to suffer an indeterminate acquittal since the evidence presented was not
penalty of twelve (12) years of prision mayor, as really a newly-discovered evidence but a
minimum, to thirty (30) years of reclusion perpetua, forgotten one and that even assuming that the
as maximum, and to indemnify complainant same is a newlydiscovered evidence, it was
Johnny Sy in the amount of P700,000.00. insufficient to overturn the evidence of guilt as
proven by the prosecution. In the case of P vs.
Costs in both instances against accused- Judge Hernando, 108 SCRA 121, the Supreme
appellants. Court held that indeed, the evidence presented
was not “newly-discovered evidence” and that
assuming it to be so, it was not sufficient to
overturn the evidence of guilt as shown by the
prosecution’s evidence. However, though the
decision was erroneous, double jeopardy has
set in and the government could no longer under Article 315, paragraph 2 (d) of the Revised
appeal the decision. So even if the court Penal Code, and sentencing them "to each suffer
obviously erred in the appreciation of the imprisonment of thirty (30) years of "reclusion
evidence resulting in a decision of acquittal perpetua" and to indemnify complaint Johnny Sy the
instead of conviction, appeal would put the sum of P700,000.00.
accused in double jeopardy. (Mazo vs. Mun.
Court, 113 SCRA 217) On September 20, 1995, complainant Johnny Sy filed
with the Office of the City Prosecutor, Manila, a
complaint-affidavit against accused spouses Elpidio
Hernando and Elena Aban Hernando alleging that
[G.R. No. 125214. October 28, 1999] the checks they issued to him on different dates were
dishonored upon presentment to the bank for
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs., payment due to "Account Closed."
ELPIDIO HERNANDO and ELENA ABAN HERNANDO,
accused-appellants. On December 22, 1995, Manila Assistant Prosecutor
Daniel C. Villanueva filed with the Regional Trial
DECISION Court, Manila, an information charging accused
PARDO, J.: spouses Elpidio Hernando and Elena Aban Hernando
with estafa, committed as follows:
The case before the Court is the appeal of accused
spouses Elpidio Hernando and Elena Aban Hernando "That in or about and during the period comprised
from the decision[1] of the Regional Trial Court, between May 11, 1995 and June 21, 1995, both dates
Branch 34, Manila, convicting each of them of estafa inclusive in the City of Manila, Philippines, the said
accused conspiring and confederating together and
mutually helping each other did then and there or in the total amount of P700,000.00 in exchange for
wilfully [sic], unlawfully and feloniously defraud cash received from JOHNNY SY on the same day,
JOHNNY SY in the following manner, to wit: the said that upon presentation of the said check to the bank
accused, well knowing that they did not have for payment, the same were dishonored and
sufficient funds in the bank, and without informing payment thereof refused for ACCOUNT CLOSED and
the said JOHNNY SY of such fact, drew, made out said accused, notwithstanding due notice to him by
and issued to the latter the following UNION CHECKS the said complainant of such dishonor of the said
NOS: checks, failed and refused and still fails and refuses to
deposit the necessary amount to cover the amount
CHECK NO. DATE AMOUNT of the checks, to the damage and prejudice of the
said JOHNNY SY in the aforesaid amount of
1. 046-081102 May 25, 1995 P100,000.00 P700,000.00, Philippine Currency.

2. 046-081103 May 13, 1995 150,000.00 "Contrary to law."[2]

3. 046-081114 May 11, 1995 100,000.00 On February 29, 1996, accused spouses were
arraigned before the trial court and both pleaded
4. 046-081115 June 21, 1995 50,000.00 not guilty to the information. Trial, thereafter, ensued.

5. 046-081116 June 8, 1995 200,000.00 The antecedent facts are undisputed:

6. 046-081117 June 20, 1995 100,000.00

The prosecution presented three witnesses, namely, by his wife Elena Aban Hernando were good checks,
Violeta Gonzales,[3] Renato Sanchez,[4] and complainant was induced to give money in the
complainant Johnny Sy;[5] while the defense exchange for the checks. The simultaneous
presented accused Elpidio Hernando.[6] exchange of cash and checks took place on five (5)
different dates, in a span of two (2) months.
For sometime before 1994, Spouses Elpidio and Elena
Hernando were engaged in the importation and sale The first transaction took place on May 11, 1995 at
of Apple and IBM Computers, while complainant the residence of accused spouses at No. 1624 M.
Johnny Sy was the owner of Palomino Club, a Hizon Street, Sta. Cruz, Manila. Elpidio and Elena
restaurant located at 727 Evangelista St., Quiapo, requested Johnny Sy to change their check to cash.
Manila, of which the spouses Hernando were good Elena issued check no. 046-081104, drawn on Union
customers. Bank of the Philippines, Sta Cruz, Manila Branch in the
amount of P100,000.00, payable to cash. Upon
On July 14, 1994, Elena Aban Hernando opened a receipt of the checks, Johnny gave the cash
current account with the Union Bank of the equivalent to Elpidio.
Philippines, Sta. Cruz Manila Branch, in the name of
Herban Trading, with herself as the signatory.[7] Two days later, or on May 13, 1995, Elena issued
check no. 046-081103 for P150,000.00 to Johnny who
Complainant Johnny Sy recounted that he first met gave the cash equivalent to accused Elpidio inside
accused spouses sometime in February 1995 in his the Palomino Club. Elena was not present when the
Palomino Club, where Elena Hernando became a exchange took place.
good customer. Out of "pakikisama" and because of
Elpidio Hernando's assurances that the checks issued
The third transaction transpired on May 28, 1995 at Johnny gave P50,00.00 cash to accused Elpidio in
the office of Herban Trading at BF Condominium exchange for check no. 046-081115. Elena was not
Building, Intramuros Manila. Johnny gave P100,000.00 present.
to accused Elpidio Hernando, in exchange for check
no. 046-081102. Though accused Elena was not In the second week of July 1995, Elena requested
present when the exchange took place, she was the Johnny not to deposit the checks because Elpidio
one who signed and issued the check. would pay them in cash. However, Elpidio failed to
redeem the checks. When Johnny deposited the
On June 8, 1995, Johnny gave P200,000.00 to checks sometime on July 28, 1995 or August 1, 1995,
accused Elpidio Hernando in exchange for check with Equitable Banking Corporation, they were
no. 046-081116 inside the office of Herban Trading. dishonored because the account from which the
Just like the previous transactions, accused Elena checks were drawn had been closed on July 18,
was not present. 1995 due to overdraft. On the day that the account
was closed, Herban Trading indicated a zero
On June 20, 1995, complainant again met accused balance.[8] Checks bearing the numbers 046-081102,
Elpidio at the office of Herban Trading. Check no. 046-081103, 046-081104, 046-081116, and 046-081117
046-081117 in the amount of P100,000.00 was were all dishonored upon presentment for payment
changed to cash. Again, accused Elena was not to the bank because the account had been
around. It was accused Elpidio who received the closed.[9]
cash.
In December 1995, Johnny called Elpidio over the
The last exchange of check with cash was on June telephone and demanded payment. Instead of
21, 1995 at the office of Herban Trading in Manila. paying, Elpidio told complainant to "just wait," further
threatening him that he had goons from Quiapo and checks were really funded there would be no need
plenty of friends who were politician like governors, for them to borrow money at an interest.
congressmen and mayors.
Accused spouses asserted that the checks had been
Complainant Johnny Sy waited (10) months for issued merely an evidence of their indebtedness to
accused spouses to pay. However, accused spouses the complainant.
failed to pay the value of the five checks, prompting
Johnny to file the complaint for estafa with the City Based on these facts, the trial court concluded that
Prosecutor's Office. the accused committed estafa. The checks were
delivered at the time that accused Elpidio received
On the other hand, the defense presented accused the cash equivalent. The guarantee made by
Elpidio Hernando[10] who admitted that accused Elpidio that the checks were funded or
complainant Johnny Sy had been acting as their would be funded and the good relationship existing
financier lending money to them at an interest. He between them enticed Johnny to give them money
never denied the receipt of the money on the dates on the dates appearing on the checks. Such
appearing on the checks. In all those transactions, his assurance and delivery of the checks were,
wife Elena was not present, except for the first according to the trial court, the efficient cause of the
exchange where she signed the check in the defraudation.[11]
presence of the complainant. The checks were
issued as proofs of the simultaneous delivery of the Though Elpidio was not the drawer of the check, the
money and the checks on the dates appearing trial court found that he conspired with his wife Elena
thereon. He denied that he assured the complainant in obtaining money from the complainant knowing
that the checks were funded reasoning that if the fully well that the checks being negotiated were not
funded. The wife issued the checks, while the Both accused shall be credited with the full extent of
husband transacted with the complainant to their preventive imprisonment.
exchange the checks with cash.
The bonds posted by both accused for their
In its decision dated June 13, 1996, the trial court provisional liberty are hereby cancelled.
found accused spouses Elpidio Hernando and Elena
Aban Hernando guilty beyond reasonable doubt of Accused Elpidio Hernandos body is hereby
estafa. The dispositive portion of the decision reads: committed to the custody of the Director of the
Bureau of Correction National Penitentiary,
WHEREFORE, finding both accused guilty beyond Muntinglupa City, thru the City Jail Warden of Manila,
reasonable doubt of the crime of Estafa definded while the body of accused Elena Aban Hernando is
[sic] and punished under Art. 315, par. 2 sub- hereby committed to the custody of the Director of
paragraph d in relation to Art. 315, par. 1 of the the Bureau of Correction for Women, Mandaluyong
Revised Penal Code, both accused are hereby City.
sentenced to each suffer imprisonment of thirty (30)
years of reclusion perpetua (P.D. 818 amending 315 SO ORDERED.
of the Revised Penal Code).
Manila, Philippines, June 13, 1996.
Both accused are hereby ordered to indemnify the
victim/complainant, Johnny Sy, the sum of (Sgd.) ROMULO A. LOPEZ
P700,000.00 representing the value of the checks,
subject matter of this offense. Judge[12]
On June 20, 1996, accused spouses filed with the trial Where the acts of the accused collectively and
court a notice of appeal.[13] individually demonstrate the existence of a common
design towards the accomplishment of the same
Accused spouses raise three errors committed by the unlawful purpose, conspiracy is evident, and all the
trial court: (1) erroneous application of the cited perpetrators will be liable as principals.[15] Direct
jurisprudence and commentaries to support the proof is not necessary to prove conspiracy but may
finding of fraud; (2) failure of the prosecution to be inferred from the acts of the accused before,
establish the guilt of accused spouses beyond during and after committing the crime which suggest
reasonable doubt; and (3) conspiracy between that they acted in concert and in pursuance of the
accused spouses was never proven.[14] same objective.[16]

The appeal has no merit. In this case, all the checks that bounced were issued
and drawn by Elpidio Hernandos wife, Elena Aban
With regard to the first assignment of error, it is Hernando. The checks, all payable to cash, were
argued that the authority and jurisprudence cited by personally delivered and negotiated to Johnny Sy by
the trial court talked about the criminal liability of the Elpidio. Though he was not the drawer of the checks,
drawer of the check. And since Elpidio Hernando accused Elpidio coaxed the complainant to
was not the drawer of the checks, he should be exchange the checks with cash by guaranteeing
acquitted. that the checks were good checks and funded. In all
the transactions, Elpidio was present and personally
This argument is flawed because there is a finding of received the money. Though Elena was not present
conspiracy by the trial court. during the negotiation of the checks, except for the
first transaction, she issued and signed the checks.
 of estafa by postdating or issuing a bad check,
In relation to the third assignment of error, the trial deceit and damage are essential elements of the
court properly ruled that there was conspiracy. offense and have to be established with satisfactory
Considering the relationship between the accused, it proof to warrant conviction.[18]
is impossible that Elpidio would not be aware of the
state of their finances. Both husband and wife, during Johnny Sy recounted how he came to know
that time, were aware that the checks issued by the accused spouses and how he was persuaded in
wife were not funded. parting with his money in exchange for the checks.
Elena Hernando became a good customer of
Settled is the rule that, to constitute estafa, the act of Palomino Club, owned by the complainant. Out of
postdating or issuing a check in payment of an pakikisama and the assurance made by Elpidio
obligation must be the efficient cause of Hernando that the checks issued by his wife were
defraudation and, as such, it should be either prior to funded, Johnny Sy gave his money to accused
or simultaneous with the act of fraud. The offender Elpidio. The guarantee and the simultaneous delivery
must be able to obtain money or property from the of the checks by accused Elpidio Hernando were the
offended party because of the issuance of the enticement and the efficient cause of the
check or that the person to whom the check was defraudation committed against the complainant.
delivered would not have parted with his money or For failing to pay the value of the five checks,
property had there been no check issued to him. complainant suffered damage in the amount of
Stated otherwise, the check should have been issued P700,000.00.
as an inducement for the surrender by the party
deceived of his money or property and not in Estafa, under Article 315, paragraph 2(d) of the
payment of a pre-existing obligation.[17] In this kind Revised Penal Code, as amended by Republic Act
No. 4885, has the following elements: (1) postdating another, to his hurt. There is deceit when one is
or issuance of a check in payment of an obligation misled, either by guile or trickery or by other means,
contracted at the time the check was issued; (2) lack to believe to be true what is really false.[21]
of sufficiency [sic] of funds to cover the check; and
(3) damage to the payee thereof.[19] These elements were present in this case. (1)
Accused Elpidio never denied that his wife signed
Fraud, in its general sense, is deemed to comprise and issued the checks on the dates appearing
anything calculated to deceive, including all acts, thereon. (2) The bank representatives presented by
omissions, and concealment involving a breach of the prosecution testified that accused Elena opened
legal or equitable duty, trust, or confidences justly a current account on July 14, 1994 with the Union
reposed, resulting in damage to another, or by which Bank of the Philippines, Sta. Cruz Branch, which was
an undue and unconscientious advantage is taken subsequently closed on July 18, 1995 due to
of another. It is a generic term embracing all overdraft. When the checks were presented for
multifarious means which human ingenuity can payment to complainants bank, the Equitable
device, and which are resorted to by one individual Banking Corporation, they were dishonored for lack
to secure an advantage over another by false of funds. In fact at the time that the current account
suggestions or by suppression of truth and includes all was closed, it indicated a zero balance. (3) Despite
surprise, trick, cunning, dissembling and any unfair the lapse of ten (10) months, accused spouses failed
way by which another is cheated.[20] to pay the money covered by the five checks, to the
detriment of the complainant.
Deceit is a specie of fraud. It is actual fraud, and
consists in any false representation or contrivance The failure of the complainant to immediately
whereby one person overreaches and misleads deposit with the bank the five checks issued by Elena
cannot be used as a defense by accused spouses. amended by Presidential Decree No. 818,[22] which
Johnny was prevailed upon by Elena not to deposit increased the penalty for estafa committed by
the checks because Elpidio would pay him in cash. means of bouncing checks. The trial court convicted
This should not be taken against complainant. accused spouses and sentenced them to each
suffer imprisonment of thirty (30) years of reclusion
Again, accused spouses would like the Court to perpetua. This is an error. The proper penalty
believe that the checks were only evidence of a pre- imposable should not be thirty (30) years (straight)
existing indebtedness or obligation to escape but an indeterminate penalty.[23] The requirement of
criminal liability. However, the facts are clear that imposing an indeterminate sentence in all criminal
there is no pre-existing obligation. Complainant gave offenses whether punishable by the Revised Penal
his money to accused spouses in exchange for the Code or by special laws, with definite minimum and
checks simultaneously delivered to him. Stated maximum terms, as the Court deems proper within
otherwise, if not for the concurrent delivery of the the legal range of the penalty specified by the law is
checks, the complainant would not have parted mandatory.[24]
with his money. Accused spouses obviously deceived
the complainant taking advantage of the Presidential Decree No. 818 provides:
complainants trust in them.
SECTION 1. Any person who shall defraud another by
In light of the foregoing, we find no reason to disturb means of false pretenses or fraudulent acts as
the factual findings of the trial court. defined in paragraph 2 (d) of Article 315 of the
Revised Penal Code, as amended by Republic Act
Accused spouses were charged with estafa under No. 4885, shall be punished by:
Article 315, par. 2 (d) of the Revised Penal Code, as
1st. The penalty of reclusion temporal if the amount imposed on account of the amount of the fraud
of the fraud is over 12,000 pesos but does not exceed involved, which exceeds twenty two thousand
22,000 pesos, and if such amount exceeds the latter (P22,000.00) pesos.
sum, the penalty provided in this paragraph shall be
imposed in its maximum period, adding one year for Under the Indeterminate Sentence Law, if the
each additional 10,000 pesos but the total penalty offense is punished by the Revised Penal Code, such
which may be imposed shall in no case exceed thirty as estafa, the court shall sentence the accused to an
years. In such cases, and in connection with the indeterminate penalty, the maximum term of which
accessory penalties which may be imposed under shall be that which, in view of the attending
the Revised Penal Code, the penalty shall be termed circumstances, could be properly imposed under the
reclusion perpetua; rules of the Revised Penal Code, and the minimum
term of which shall be within the range of the penalty
xxx. next lower to that prescribed by the Code for the
offense.[25] The penalty next lower should be based
Hence, if the amount of the fraud exceeds twenty- on the penalty prescribed by the Code for the
two thousand pesos, the penalty of reclusion offense, without first considering any modifying
temporal is imposed in its maximum period, adding circumstance attendant to the commission of the
one year for each additional ten thousand crime. The determination of the minimum penalty is
(P10,000.00) pesos but the total penalty shall not left by law to the sound discretion of the court and it
exceed thirty (30) years, which shall be termed can be anywhere within the range of the penalty
reclusion perpetua. As used herein, reclusion next lower without any reference to the periods into
perpetua is not the prescribed penalty for the which it might be subdivided. The modifying
offense. It merely describes the penalty actually circumstances are considered only in the imposition
of the maximum term of the indeterminate On the other hand, the minimum of the
sentence.[26] indeterminate sentence shall be within the range of
the penalty next lower in degree to that prescribed
Here, the complainant was defrauded in the amount by the Code for the offense, without first considering
of seven hundred thousand (P700,000.00) pesos. The any modifying circumstance[30] nor the incremental
fact that the amount involved in the instant case penalty for the amount in excess of twenty two
exceeds P22,000.00 should not be considered in the thousand (P22,000.00) pesos.[31] Such penalty is
initial determination of the indeterminate penalty; prision mayor,[32] with a duration of six (6) years and
instead the matter would be so taken as analogous one (1) day to twelve (12) years.[33]
to modifying circumstances in the imposition of the
maximum term of the full indeterminate sentence. WHEREFORE, the Court hereby AFFIRMS with
This accords with the rule that penal laws are modification the decision of the trial court in Criminal
construed in favor of the accused.[27] Case No. 95-146895, finding accused spouses Elpidio
Hernando and Elena Aban Hernando guilty beyond
Applying the above-cited provision, accused shall reasonable doubt of estafa, defined and penalized
be meted an indeterminate sentence, the maximum under Article 315, paragraph 2 (d) of the Revised
of which shall be taken from the maximum period of Penal Code, and sentencing each of them to suffer
the basic penalty,[28] that is, reclusion temporal, to an indeterminate penalty of twelve (12) years of
be imposed in its maximum period, plus one (1) year prision mayor, as minimum, to thirty (30) years of
for each additional P10,000.00 of the amount of the reclusion perpetua, as maximum, and to indemnify
fraud, but the total penalty shall not exceed thirty complainant Johnny Sy in the amount of P700,000.00.
(30) years.[29]
Costs in both instances against accused-appellants..