G.R. No. 220598 GLORIA MACAPAGAL ARROYO, Petitioner, vs.

PEOPLE OF THE
PHILIPPINES AND THE SANDIGANBAYAN, (First Division), Respondents

--- On July 19, 2016, the Court promulgated its decision, disposing:

WHEREFORE, the Court GRANTS the petitions for certiorari; ANNULS and SETS ASIDE the resolutions issued in
Criminal Case No. SB-12-CRM-0174 by the Sandiganbayan on April 6, 2015 and September 10, 2015; GRANTSthe
petitioners' respective demurrers to evidence; DISMISSES Criminal Case No. SB-12-CRM-0174 as to the
petitioners GLORIAMACAPAGAL-ARROYO and BENIGNOAGUAS for insufficiency of evidence; ORDERS the
immediate release from detention of said petitioners; and MAKES no pronouncements on costs of suit.

SO ORDERED. 1

On August 3, 2016, the State, through the Office of the Ombudsman, has moved for the reconsideration of the
decision, submitting that:

I. THIS HONORABLE COURT'S GIVING DUE COURSE TO A CERTIORARI ACTION ASSAILING AN

INTERLOCUTORY ORDER DENYING DEMURRER TO EVIDENCE VIOLA TES RULE 119, SECTION 23 OF
THE RULES OF COURT, WHICH PROVIDES THAT AN ORDER DENYING THE DEMURRER TO
EVIDENCE SHALL NOT BE REVIEWABLE BY APPEAL OR BY CERTIORARI BEFORE JUDGMENT.

II. THE HONORABLE COURT COMMITTED GRAVE ERRORS WHICH AMOUNT TO A VIOLATION OR
DEPRIVATION OF THE STATE'S FUNDAMENTAL RIGHT TO DUE PROCESS OF LAW.

A. THE DECISION REQUIRES ADDITIONAL ELEMENTS IN THE PROSECUTION OF

PLUNDER, VIZ. IDENTIFICATION OF THE MAIN PLUNDERER AND PERSONAL BENEFIT TO
HIM/HER, BOTH OF WHICH ARE NOT PROVIDED IN THE TEXT OF REPUBLIC ACT (R.A.) NO.
7080.

B. THE EVIDENCE PRESENTED BY THE PROSECUTION WAS NOT FULLY TAKEN INTO
ACCOUNT, INCLUDING BUT NOT LIMITED TO THE IRREGULARITIES IN THE
CONFIDENTIAL/INTELLIGENCE FUND (CIF) DISBURSEMENT PROCESS, QUESTIONABLE
PRACTICE OF CO-MINGLING OF FUNDSAND AGUAS' REPORTS TO THE COMMISSION ON
AUDIT (COA) THAT BULK OF THE PHP365,997,915.00 WITHDRAWN FROM THE PHILIPPINE
CHARITY SWEEPSTAKES OFFICE'S (PCSO) CIF WERE DIVERTED TO THE ARROYO-HEADED
OFFICE OF THE PRESIDENT.

C. ARROYO AND AGUAS, BY INDISPENSABLE COOPERATION, IN CONSPIRACY WITH THEIR

COACCUSED IN SB-12-CRM-0174, COMMITTED PLUNDER VIA· A COMPLEX ILLEGAL SCHEME
WHICH DEFRAUDED PCSO IN HUNDREDS OF MILLIONS OF PESOS.

D. EVEN ASSUMING THAT THE ELEMENTS OF PLUNDER WERE NOT PROVEN BEYOND
REASONABLE DOUBT, THE EVIDENCE PRESENTED BY THE PEOPLE SHOWS, BEYOND
REASONABLE DOUBT, THAT ARROYO, AGUAS AND THEIR COACCUSED IN SB-12-CRM-0174
ARE GUILTY OF MALVERSATION.2

In contrast, the petitioners submit that the decision has effectively barred the consideration and granting of the
motion for reconsideration of the State because doing so would amount to the re-prosecution or revival of the
charge against them despite their acquittal, and would thereby violate the constitutional proscription against
double jeopardy.

Petitioner Gloria M. Macapagal-Arroyo (Arroyo) points out that the State miserably failed to prove the corpus
delicti of plunder; that the Court correctly required the identification of the main plunderer as well as personal
benefit on the part of the raider of the public treasury to enable the successful prosecution of the crime of
plunder; that the State did not prove the conspiracy that justified her inclusion in the charge; that to sustain the
case for malversation against her, in lieu of plunder, would violate her right to be informed of the accusation
against her because the information did not necessarily include the crime of malversation; and that even if the
information did so, the constitutional prohibition against double jeopardy already barred the re-opening of the
case for that purpose.

Petitioner Benigno B. Aguas echoes the contentions of Arroyo in urging the Com1 to deny the motion for
reconsideration.

In reply, the State avers that the prohibition against double jeopardy does not apply because it was denied its
day in court, thereby rendering the decision void; that the Court should re-examine the facts and pieces of
evidence in order to find the petitioners guilty as charged; and that the allegations of the information sufficiently
included all that was necessary to fully inform the petitioners of the accusations against them.

Ruling of the Court

The Court DENIES the motion for reconsideration for its lack of merit.

To start with, the State argues' that the consolidated petitions for certiorari were improper remedies in light of
Section 23, Rule 119 of the Rules of Court expressly prohibiting the review of the denial of their demurrer prior
to the judgment in the case either by appeal or by certiorari; that the Court has thereby limited its own power,
which should necessarily prevent the giving of due course to the petitions for certiorari, as well as the undoing
of the order denying the petitioners' demurrer to evidence; that the proper remedy under the Rules of
Court was for the petitioners to proceed to trial and to present their evidence-in-chief thereat; and that even if
there had been grave abuse of discretion attending the denial, the Court's certiorari powers should be
exercised only upon the petitioners' compliance with the stringent requirements of Rule 65, particularly with the
requirement that there be no plain, speedy or adequate remedy in the ordinary course of law, which they did
not establish.

Section 23, Rule 119 of the Rules of Court, pertinently provides:

Section 23. Demurrer to evidence. – xxx

xxxx

The order denying the motion for leave of court to file demurrer to evidence or the demurrer itself shall
not be reviewable by appeal or by certiorari before judgment. (n)

The argument of the State, which is really a repetition of its earlier submission, was squarely resolved in the
decision, as follows:

The Court holds that it should take cognizance of the petitions for certiorari because the Sandiganbayan, as
shall shortly be demonstrated, gravely abused its discretion amounting to lack or excess of jurisdiction.
The special civil action for certiorari is generally not proper to assail such an interlocutory order issued by the
trial court because of the availability of another remedy in the ordinary course of law. Moreover, Section 23,
Rule 119 of the Rules of Court expressly provides that "the order denying the motion for leave of court to file
demurrer to evidence or the demurrer itself shall not be reviewable by appeal or by certiorari before judgment."
It is not an insuperable obstacle to this action, however, that the denial of the demurrers to evidence of the
petitioners was an interlocutory order that did not terminate the proceedings, and the proper recourse of the
demurring accused was to go to trial, and that in case of their conviction they may then appeal the conviction,
and assign the denial as among the errors to be reviewed. Indeed, it is doctrinal that the situations in which the
writ of certiorari may issue should not be limited, because to do so -

x x x would be to destroy its comprehensiveness and usefulness. So wide is the discretion of the com1 that
authority is not wanting to show that certiorari is more discretionary than either prohibition or mandamus. In the
exercise of oursuperintending control over other courts, we are to be guided by all the circumstances
of each particular case 'as the ends of justice may require.' So it is that the writ will be granted where
necessary to prevent a substantial wrong or to do substantial justice.

The Constitution itself has imposed upon the Court and the other courts of justice the duty to correct errors of
jurisdiction as a result of capricious, arbitrary, whimsical and despotic exercise of discretion by expressly
incorporating in Section 1 of Article VIII the following provision:

Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be
established by law.

Judicial power includes the duty of the courts of justice to settle actual controversies involving rights
which are legally demandable and enforceable, and to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government. The exercise of this power to correct grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the
Government cannot be thwarted by rules of procedure to the contrary or for the sake of the
convenience of one side. This is because the Court has the bounden constitutional duty to strike down
grave abuse of discretion whenever and wherever it is committed. Thus, notwithstanding the
interlocutory character and effect of the denial of the demurrers to evidence, the petitioners as the
accused could avail themselves of the remedy of certiorari when the denial was tainted with grave
abuse of discretion. As we shall soon show, the Sandiganbayan as the trial court was guilty of grave
abuse of discretion when it capriciously denied the demurrers to evidence despite the absence of
competent and sufficient evidence to sustain the indictment for plunder, and despite the absence of
the factual bases to expect a guilty verdict.3

We reiterate the foregoing resolution, and stress that the prohibition contained in Section 23, Rule 119 of
the Rules of Court is not an insuperable obstacle to the review by the Court of the denial of the demurrer to
evidence through certiorari. We have had many rulings to that effect in the past. For instance, in Nicolas v.
Sandiganbayan,4the Court expressly ruled that the petition for certiorari was the proper remedy to assail the
denial of the demurrer to evidence that was tainted with grave abuse of discretion or excess of jurisdiction, or
oppressive exercise of judicial authority.

Secondly, the State submits that its right to due process was violated because the decision imposed additional
elements for plunder that neither ' Republic Act No. 7080 nor jurisprudence had theretofore required, i.e., the
identification of the main plunderer, and personal benefit on the part of the accused committing the predicate
crime of raid on the public treasury. The State complains that it was not given the opportunity to establish such
additional elements; that the imposition of new elements fu1iher amounted to judicial legislation in violation of
the doctrine of separation of powers; that the Court nitpicked on the different infirmities of the information
despite the issue revolving only around the sufficiency of the evidence; and that it established all the elements
of plunder beyond reasonable doubt.

The State cites the plain meaning rule to highlight that the crime of plunder did not require personal benefit on
the part of the raider of the public treasury. It insists that the definition of raids on the public
treasury, conformably with the plain meaning rule, is the taking of public money through fraudulent or unlawful
means, and such definition does not require enjoyment or personal benefit on the part of plunderer or on the
part of any of his co-conspirators for them to be convicted for plunder.

The submissions of the State are unfounded.

The requirements for the identification of the main plunderer and for personal benefit in the predicate act
of raids on the public treasury have been written in R.A. No. 7080 itself as well as embedded in pertinent
jurisprudence. This we made clear in the decision, as follows:

A perusal of the information suggests that what the Prosecution sought to show was an implied conspiracy to
commit plunder among all of the accused on the basis of their collective actions prior to, during and after the
implied agreement. It is notable that the Prosecution did not allege that the conspiracy among all of the
accused was by express agreement, or was a wheel conspiracy or a chain conspiracy.

This was another fatal flaw of the Prosecution.

In its present version, under which the petitioners were charged, Section 2 of Republic Act No. 7080 (Plunder
Law) states:

Section 2. Definition of the Crime of Plunder: Penalties. - Any public officer who, by himself or in connivance
with members of his family, relatives by affinity or consanguinity, business associates, subordinates or other
persons, amasses, accumulates or acquires ill-gotten wealth through a combination or series of overt criminal
acts as described in Section 1 (d) hereof in the aggregate amount or total value of at least Fifty million pesos
(₱50,000,000.00) shall be guilty of the crime of plunder and shall be punished by reclusion perpetua to death.
Any person who participated with the said public officer in the commission of an offense contributing to the
crime of plunder shall likewise be punished for such offense. In the imposition of penalties, the degree of
participation and the attendance of mitigating and extenuating circumstances, as provided by the Revised
Penal Code, shall be considered by the court. The court shall declare any and all ill-gotten wealth and their
interests and other incomes and assets including the properties and shares of stocks derived from the deposit
or investment thereof forfeited in favor of the State. [As Amended by Section 12, Republic Act No. 7659 (The
Death Penalty Law)]

Section l(d) of Republic Act No. 7080 provides:

Section 1. Definition of terms. - As used in this Act, the term:

xxxx

d. "Ill-gotten wealth" means any asset, property, business enterprise or material possession of any person
within the purview of Section two (2) hereof, acquired by him directly or indirectly through dummies, nominees,
agents, subordinates and/or business associates by any combination or series of the following means or
similar schemes:
 1. Through misappropriation, conversion, misuse, or malversation of public funds or raids on the public
treasury;

2. By receiving, directly or indirectly, any commission, gift, share, percentage, kickbacks or any/or entity
in connection with any government contract or project or by reason of the office or position of the public
officer concerned;

3. By the illegal or fraudulent conveyance or disposition of assets belonging to the National

Government or any of its subdivisions, agencies or instrumentalities or government-owned or controlled
corporations and their subsidiaries;

4. By obtaining, receiving or accepting directly or indirectly any shares of stock, equity or any other form
of interest or participation including the promise of future employment in any business enterprise or
undertaking;

5. By establishing agricultural, industrial or commercial monopolies or other combinations and/or

implementation of decrees and orders intended to benefit particular persons or special interests; or

6. By taking undue advantage of official positi0n, authority, relationship, connection or influence to

unjustly enrich himself or themselves at the expense and to the damage and prejudice

The law on plunder requires that a particular public officer must be identified as the one who amassed,
acquired or accumulated ill-gotten wealth because it plainly states that plunder is committed by any
public officer who, by himself or in connivance with members of his family, relatives by affinity or
consanguinity, business associates, subordinates or other persons, amasses, accumulates or
acquires ill-gotten wealth in the aggregate amount or total value of at least ₱50,000,000.00 through
a combination or series of overt criminal acts as described in Section l(d) hereof. Surely, the law
requires in the criminal charge for plunder against several individuals that there must be a main
plunderer and her co-conspirators, who may be members of her family, relatives by affinity or
consanguinity, business associates, subordim1tes or other persons. In other words, the allegation of
the wheel conspiracy or express conspiracy in the information was appropriate because the main
plunderer would then be identified in either manner. Of course, implied conspiracy could also identify
the main plunderer, but that fact must be properly alleged and duly proven by the Prosecution.

This interpretation is supported by Estrada v. Sandiganbayan, where the Court explained the nature of the
conspiracy charge and the necessity for the main plunderer for whose benefit the amassment, accumulation
and acquisition was made, thus:

There is no denying the fact that the "plunder of an entire nation resulting in material damage to the national
economy" is made up of a complex and manifold network of crimes. In the crime of plunder, therefore, different
parties may be united by a common purpose. In the case at bar, the different accused and their different
criminal acts have a commonality - to help the former President amass, accumulate or acquire ill-gotten wealth.
Sub-paragraphs (a) to (d) in the Amended Information alleged the different participation of each accused in the
conspiracy. The gravamen of the conspiracy charge, therefore, is not that each accused agreed to receive
protection money from illegal gambling, that each misappropriated a portion of the tobacco excise tax, that
each accused ordered the GSIS and SSS to purchase shares of Belle Corporation and receive commissions
from such sale, nor that each unjustly enriched himself from commissions, gifts and kickbacks; rather, it is that
each of them, by their individual acts, agreed to participate, directly or indirectly, in the amassing,
accumulation and acquisition of ill-gotten wealth of and/or for former President Estrada. 5 [bold
underscoring supplied for emphasis]

Indeed, because plunder is a crime that only a public official can commit by amassing, accumulating, or
acquiring ill-gotten wealth in the aggregate amount or total value of at least ₱50,000,000.00, the identification
in the information of such public official as the main plunderer among the several individuals thus charged is
logically necessary under the law itself. In particular reference to Criminal Case No. SB-12-CRM-0174, the
individuals charged therein - including the petitioners - were 10 public officials; hence, it was only proper to
identify the main plunderer or plunderers among the 10 accused who herself or himself had amassed,
accumulated, or acquired ill-gotten wealth with the total value of at least ₱50,000,000.00.

The phrase raids on the public treasury as used in Section 1 (d) of R. A. No. 7080 is itself ambiguous. In order
to ascertain the objective meaning of the phrase, the act of raiding the public treasury cannot be divided into
parts. This is to differentiate the predicate act of raids on the public treasury from other offenses involving
property, like robbery, theft, or estafa. Considering that R.A. No. 7080 does not expressly define this predicate
act, the Court has necessarily resorted to statutory construction. In so doing, the Court did not adopt the
State's submission that personal benefit on the part of the accused need not be alleged and shown because
doing so would have defeated the clear intent of the law itself,6 which was to punish the amassing,
accumulating, or acquiring of ill-gotten wealth in the aggregate amount or total value of at least
₱150,000,000.00 by any combination or series of acts of misappropriation, conversion, misuse, or
malversation of public funds or raids on the public treasury.

As the decision has observed, the rules of statutory construction as well as the deliberations of Congress
indicated the intent of Congress to require personal benefit for the predicate act of raids on the public treasury,
viz.:

The phrase raids on the public treasury is found in Section 1 (d) of R.A. No. 7080, which provides:

Section l .Definition of Terms. – xxx

xxxx

d) Ill-gotten wealth means any asset, prope1iy, business enterprise or material possession of any person within
the purview of Section Two (2) hereof, acquired by him directly or indirectly through dummies, nominees,
agents, subordinates and/or business associates by any combination or series of the following means or
similar schemes:

1) Through misappropriation, conversion, misuse, or malversation of public funds or raids on the public
treasury;

xxxx

To discern the proper import of the phrase raids on the public treasury, the key is to look at the
accompanying words: misappropriation, conversion, misuse or malversation of public funds. This
process is conformable with the maxim of statutory construction noscitur a sociis, by which the
correct construction of a particular word or phrase that is ambiguous in itself or is equally susceptible
of various meanings may be made by considering the company of the words in which the word or
phrase is found or with which it is associated. Verily, a word or phrase in a statute is always used in
association with other words or phrases, and its meaning may, therefore, be modified or restricted by
the latter.
To convert connotes the act of using or disposing of another's property as if it were one's own; to
misappropriate means to own, to take something for one's own benefit; misuse means "a good, substance,
privilege, or right used improperly, unforcsccably, or not as intended;" and malversation occurs when "any
public officer who, by reason of the duties of his office, is accountable for public funds or property, shall
appropriate the same or shall take or misappropriate or shall consent, through abandonment or negligence,
shall permit any other person to take such public funds, or property, wholly or partially." The common thread
that binds all the four terms together is that the public officer used the property taken. Considering that raids on
the public treasury is in the company of the four other terms that require the use of the property taken, the
phrase raids on the public treasury similarly requires such use of the property taken. Accordingly,
the Sandiganbayan gravely erred in contending that the mere accumulation and gathering constituted the
forbidden act of raids on the public treasury. Pursuant to the maxim of noscitur a sociis, raids on the public
treasury requires the raider to use the property taken impliedly for his personal benefit. 7

The Prosecution asserts that the Senate deliberations removed personal benefit as a requirement for plunder.
In not requiring personal benefit, the Sandiganbayan quoted the following exchanges between Senator Enrile
and Senator Tafiada, viz.:

Senator Enrile. The word here, Mr. President, "such public officer or person who conspired or knowingly
benefited". One does not have to conspire or rescheme. The only element needed is that he "knowingly
benefited". A candidate for the Senate for instance, who received a political contribution from a plunderer,
knowing that the contributor is a plunderer and therefore, he knowingly benefited from the plunder, would he
also suffer the penalty, Mr. President, for life imprisonment?

Senator Tafiada. In the committee amendments, Mr. President, we have deleted these lines 1 to 4 and part of
line 5, on page 3. But, in a way, Mr. President, it is good that the Gentleman is bringing out these questions, I
believe that under the examples he has given, the Court will have to...

Senator Enrile. How about the wife, Mr. President, he may not agree with the plunderer to plunder the country
but because she is a dutiful wife or a faithful husband, she has to keep her or his vow of fidelity to the spouse.
And, of course, she enjoys the benefits out of the plunder. Would the Gentleman now impute to her or him the
crime of plunder simply because she or he knowingly benefited out of the fruits of the plunder and, therefore,
he must suffer or he must suffer the penalty of life imprisonment?

The President. That was stricken out already in the Committee amendment.

Senator Tañada. Yes, Mr. President. Lines 1 to 4 and part of line 5 were stricken out in the Committee
amendment. But, as I said, the examples of the Minority Floor Leader are still worth spreading
the Record. And, I believe that in those examples, the Court will have just to take into consideration all the
other circumstances prevailing in the case and the evidence that will be submitted.

The President. In any event, 'knowingly benefited' has already been stricken off."

The exchanges between Senator Enrile and Senator Tañada reveal, therefore, that what was removed from
the coverage of the bill and the final version that eventually became the law was a person who was not the
main plunderer or a co-conspirator, but one who personally benefited from the plunderers' action. The
requirement of personal benefit on the part of the main plunderer or his co-conspirators by virtue of their
plunder was not removed.
As a result, not only did the Prosecution fail to show where the money went but, more importantly, that GMA
and Aguas had personally benefited from the same. Hence, the Prosecution did not prove the predicate act
of raids on the public treasury beyond reasonable doubt. 8

Thirdly, the State contends that the Court did not appreciate the totality of its evidence, particularly the different
irregularities committed in the disbursement of the PCSO funds, i.e., the commingling of funds, the non-
compliance with LOI No. 1282, and the unilateral approval of the disbursements. Such totality, coupled with the
fact of the petitioners' indispensable cooperation in the pilfering of public funds, showed the existence of the
conspiracy to commit plunder among all of the accused.

The contention lacks basis.

As can be readily seen from the decision, the Court expressly granted the petitioners' respective demurrers to
evidence and dismissed the plunder case against them for insufficiency of evidence because:

x x x the Sandiganbayan as the trial court was guilty of grave abuse of discretion when it capriciously denied
the demurrers to evidence despite the absence of competent and sufficient evidence to sustain the
indictment for plunder, and despite the absence of the factual bases to expect a guilty verdict. 9

Such disposition of the Court fully took into consideration all the evidence adduced against the petitioners. We
need not rehash our review of the evidence thus adduced, for it is enough simply to stress that the Prosecution
failed to establish the corpus delicti of plunder - that any or all of the accused public officials, particularly
petitioner Arroyo, had amassed, accumulated, or acquired ill-gotten wealth in the aggregate amount or total
value of at least ₱50,000,000.00.

Fourthly, in accenting certain inadequacies of the allegations of the information, the Court did not engage in
purposeless nitpicking, and did not digress from the primary task of determining the sufficiency of the evidence
presented by the State against the petitioners. What the Court thereby intended to achieve was to highlight
what would have been relevant in the proper prosecution of plunder and thus enable itself to discern and
determine whether the evidence of guilt was sufficient or not. In fact, the Court categorically clarified that in
discussing the essential need for the identification of the main plunderer it was not harping on the sufficiency of
the information, but was only enabling itself to search for and to find the relevant proof that unequivocally
showed petitioner Arroyo as the "mastermind" - which was how the Sandiganbayan had characterized her
participation - in the context of the implied conspiracy alleged in the information. But the search came to
naught, for the information contained nothing that averred her commission of the overt act necessary to
implicate her in the supposed conspiracy to commit the crime of plunder. Indeed, the Court assiduously
searched for but did not find the sufficient incriminatory evidence against the petitioners. Hence, the
Sandiganbayan capriciously and oppressively denied their demurrers to evidence.

Fifthly, the State posits that it established at least a case for malversation against the petitioners.

Malversation is defined and punished under Article 217 of the Revised Penal Code, which reads thusly:

Article 217. Malversation of public funds or property; Presumption of malversation. - Any public officer who, by
reason of the duties of his office, is accountable for public funds or property, shall appropriate the same or shall
take or misappropriate or shall consent, through abandonment or negligence, shall permit any other person to
take such public funds, or property, wholly or partially, or shall otherwise be guilty of the misappropriation or
malversation of such funds or property, shall suffer:
 1. The penalty of prision correccional in its medium and maximum periods, if the amount involved in the
misappropriation or malversation does not exceed two hundred pesos.

2. The penalty of prision mayor in its minimum and medium periods, if the amount involved is more than
two hundred pesos but does not exceed six thousand pesos.

3. The penalty of prision mayor in its maximum period to reclusion temporal in its minimum period, if the
amount involved is more than six thousand pesos but is less than twelve thousand pesos.

4. The penalty of reclusion temporal, in its medium and maximum periods, if the amount involved is
more than twelve thousand pesos but is less than twenty-two thousand pesos. If the amount exceeds
the latter, the penalty shall be reclusion temporal in its maximum period to reclusion perpetua.

In all cases, persons guilty of malversation shall also suffer the penalty of perpetual special disqualification and
a fine equal to the amount of the funds malversed or equal to the total value of the property embezzled.

The failure of a public officer to have duly forthcoming any public funds or property with which he is
chargeable, upon demand by any duly authorized officer, shall be prima facie evidence that he has put such
missing funds or property to personal use. (As amended by RA 1060).

The elements of malversation are that: (a) the offender is an accountable public officer; (b) he/she is
responsible for the misappropriation of public funds or property through intent or negligence; and (c) he/she
has custody of and received such funds and property by reason of his/her office. 10

The information in Criminal Case No. SB-12-CRM-017411 avers:

The undersigned Assistant Ombudsman and Graft Investigation and Prosecution Officer III, Office of the
Ombudsman, hereby accuse GLORIA MACAPAGAL-ARROYO, ROSARIO C. URIARTE, SERGIO O.
VALENCIA, MANUEL L. MORATO, JOSE R. TARUC V, RAYMUNDO T. ROQUERO, MA. FATIMA AS.
VALDES, BENIGNO B. AGUAS, REYNALDO A. VILLAR and NILDA B. PLARAS, of the crime
of PLUNDER, as defined by, and penalized under Section 2 of Republic Act (R.A.) No. 7080, as amended by
R.A. No. 7659, committed, as follows:

That during the period from January 2008 to June 2010 or sometime prior or subsequent thereto, in Quezon
City, Philippines, and within the jurisdiction of this Honorable Court, accused GLORIA MACAPAGAL-
ARROYO, then the President of the Philippines, ROSARIO C. URIARTE, then General Manager and Vice
Chairman, SERGIO 0. VALENCIA, then Chairman of the Board of Directors, MANUEL L. MORA TO, JOSE R.
TARUC V, RAYMUNDO T. ROQUERO, MA. FATIMA AS. VALDES, then members of the Board of Directors,
BENIGNO B. AGUAS, then Budget and Accounts Manager, all of the Philippine Charity Sweepstakes Office
(PCSO), REYNALDO A. VILLAR, then Chairman, and NILDA B. PLARAS, then Head of
Intelligence/Confidential Fund Fraud Audit Unit, both of the Commission on Audit, all public officers committing
the offense in relation to their respective offices and taking undue advantage of their respective official
positions, authority, relationships, connections or influence, conniving, conspiring and confederating with one
another, did then and there willfully, unlawfully and criminally 'amass,, accumulate and/or acquire directly or
indirectly, ill-gotten wealth in the aggregate amount or total value of THREE HUNDRED SIXTY FIVE MILLION
NINE HUNDRED NINETY SEVEN THOUSAND NINE HUNDRED FIFTEEN PESOS (PHP365,997,915.00),
more or less, through any or a combination or a series of overt or criminal acts, or similar schemes or means,
described as follows:
 (a) diverting in several instances, funds from the operating budget of PCSO to its
Confidential/Intelligence Fund that could be accessed and withdrawn at any time with minimal
restrictions, and converting, misusing, and/or illegally conveying or transferring the proceeds drawn
from said fund in the aforementioned sum, also in several instances, to themselves, in the guise of
fictitious expenditures, for their personal gain and benefit;

(b) raiding the public treasury by withdrawing and receiving, in several instances, the above-mentioned
amount from the Confidential/Intelligence Fund from PCSO's accounts, and or unlawfully transferring or
conveying the same into their possession and control through irregularly issued disbursement vouchers
and fictitious expenditures; and

(c) taking advantage of their respective official positions, authority, relationships, connections or
influence, in several instances, to unjustly enrich themselves in the aforementioned sum, at the
expense of, and the damage and prejudice of the Filipino people and the Republic of the Philippines.

CONTRARY TO LAW.

In thereby averring the predicate act of malversation, the State did not sufficiently allege the aforementioned
essential elements of malversation in the information. The omission from the information of factual details
descriptive of the aforementioned elements of malversation highlighted the insufficiency of the allegations.
Consequently, the State's position is entirely unfounded.

Lastly, the petitioners insist that the consideration and granting of the motion for reconsideration of the State
can amount to a violation of the constitutional prohibition against double jeopardy because their acquittal under
the decision was a prior jeopardy within the context of Section 21, Article III (Bill of Rights) of the 1987
Constitution, to wit:

Section 21. No person shall be twice put in jeopardy of punishment for the same offense. If an act is punished
by a law and an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for
the same act.

The insistence of the petitioners is fully warranted. Indeed, the consideration and granting of the motion for
reconsideration of the State will amount to the violation of the constitutional guarantee against double jeopardy.

The Court's consequential dismissal of Criminal Case No. SB-12- CRM-0174 as to the petitioners for
insufficiency of evidence amounted to their acquittal of the crime of plunder charged against them. In People v.
Tan, 12the Court shows why:

In People v. Sandiganbayan, this Com1 explained the general rule that the grant of a demurrer to evidence
operates as an acquittal and is, thus, final and unappealable, to wit:

The demurrer to evidence in criminal cases, such as the one at bar, is ''filed after tile prosecution had
rested its case," and when the same is granted, it calls "for an appreciation of the evidence adduced by
the prosecution and its sufficiency to warrant conviction beyond reasonable doubt, resulting in
a dismissal of the case on the merits, tantamount to an acquittal of the accused." Such dismissal of a
criminal case by the grant of demurrer to evidence may not be appealed, for to do so would be to place
the accused in double jeopardy. The verdict being one of acquittal, the case ends there.

xxxx
The rule on double jeopardy, however, is not without exceptions. In People v. Laguio, Jr., this Court stated that
the only instance when double jeopardy will not attach is when the RTC acted with grave abuse of discretion,
thus:

... The only instance when double ,jeopardy will not attach is when the trial court acted with grave abuse of
discretion amounting to lack or excess of jurisdiction, such as where the prosecution was denied the
opportunity to present its case or where the trial was a sham. However, while certiorari may be availed of to
correct an erroneous acquittal, the petitioner in such an extraordinary proceeding must clearly demonstrate
that the trial court blatantly abused its authority to a point so grave as to deprive it of its very power to dispense
justice. 13

The constitutional prohibition against placing a person under double jeopardy for the same offense bars not
only a new and independent prosecution but also an appeal in the same action after jeopardy had
attached. 14 As such, every acquittal becomes final immediately upon promulgation and cannot be recalled for
correction or amendment. With the acquittal being immediately final, granting the State's motion for
reconsideration in this case would violate the Constitutional prohibition against double jeopardy because it
would effectively reopen the prosecution and subject the petitioners to a second jeopardy despite their
acquittal.

It is cogent to remind in this regard that the Constitutional prohibition against double jeopardy provides to the
accused three related protections, specifically: protection against a second prosecution for the same offense
after acquittal; protection against a second prosecution for the same offense after conviction; and protection
against multiple punishments for the same offense. 15The rationale for the three protections is expounded
in United States v. Wilson: 16

The interests underlying these three protections arc quite similar. When a defendant has been once
convicted and punished for a particular crime, principles of fairness and finality require that he not be
subjected to the possibility of further punishment by being again tried or sentenced for the same
offense.Ex pa rte Lange, 18 Wall 163 (1874); In re Nielsen, 131 U.S. 176 (1889). When a defendant has
been acquitted of an offense, the Clause guarantees that the State shall not be permitted to make
repeated attempts to convict him,

"thereby subjecting him to embarrassment, expense and ordeal, and compelling him to live in a
continuing state of anxiety and insecurity, as well as enhancing the possibility that, even though
innocent, he may be found guilty."

Green v. United States, 355 U.S. 184, 187-188 (1957).

The policy of avoiding multiple trials has been regarded as so important that exceptions to the
principle have been only grudgingly allowed. Initially, a new trial was thought to be unavailable after
appeal, whether requested by the prosecution or the defendant. See United States v. Gibert, 25 F. Cas.
1287 (No. 15,204) (CCD Mass. 1834) (Story, J.). It was not until 1896 that it was made clear that a
defendant could seek a new trial after conviction, even though the Government enjoyed no similar
right. United States v. Ball, 163 U.S. 662. (Bold underscoring supplied for emphasis)

WHEREFORE, the Court DENIES the motion for reconsideration for lack of merit.

SO ORDERED.
THIRD DIVISION

CHURCHILLE V. MARI and the PEOPLE OF G.R. No. 187728

THE PHILIPPINES, Present:
Petitioners, VELASCO, JR., J., Chairperson,
PERALTA,
- versus - ABAD,
MENDOZA, and
SERENO,* JJ.
HON. ROLANDO L. GONZALES, Presiding
Judge, Regional Trial Court, Branch 39, Promulgated:
Sogod, Southern Leyte, and PO1
RUDYARD PALOMA y TORRES, September 12, 2011
Respondents.
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION

PERALTA, J.:

This resolves the Petition for Certiorari under Rule 65 of the Rules of Court, praying that the Order[1] of the
Regional Trial Court of Sogod, Southern Leyte (RTC), dated January 16, 2009, dismissing the criminal case for
rape against PO1 Rudyard Paloma y Torres (private respondent), and the Resolution[2] dated March 16, 2009,
denying petitioners' motion for reconsideration, be annulled and set aside.
The records reveal the following antecedent facts.

On October 25, 2004, petitioner AAA, private complainant below, executed a sworn statement before an
Investigator of the 8th Regional Office, Philippine National Police-Criminal Investigation and Detection Group
(PNP-CIDG) in Tacloban City, where she stated that she was raped by herein private respondent on October
10, 2004 at her boarding house at Sogod, Southern Leyte. A preliminary investigation of the case was
commenced on November 4, 2004 before the Presiding Judge of the Municipal Circuit Trial Court (MCTC) of
Sogod. A warrant of arrest was issued against private respondent, so he voluntarily surrendered to the Chief of
Police of Sogod on November 18, 2004 and was then incarcerated at the Sogod Municipal Jail.

On November 20, 2004, private respondent filed a Motion for Bail. Hearings on the motion commenced on
December 7, 2004, but petitioner failed to appear. Only private respondent presented evidence. Thus, on
March 16, 2005, the MCTC of Sogod issued an Order allowing private respondent to post bail set
at P200,000.00.After posting a surety bond, private respondent was released from confinement.

Pursuant to the issuance of A.M. No. 05-8-26, divesting first-level courts of authority to conduct preliminary
investigation of criminal complaints cognizable by Regional Trial Courts, records of the subject case were
transmitted to the Provincial Prosecutor's Office of Southern Leyte. [3] The Prosecutor's Office issued a
Resolution dated May 26, 2008, finding probable cause against private respondent and, accordingly, an
Information for Rape was filed on June 11, 2008. A warrant of arrest was immediately issued against private
respondent.

On June 27, 2008, private respondent was committed to detention[4] and, on June 30, 2008, the RTC issued an
Order[5] stating that accused had voluntarily surrendered to the Office of the Clerk of Court and arraignment
was set for July 31, 2008. In the meantime, on July 3, 2008, private respondent filed a Motion to Admit Cash
Bond in Lieu of Surety Bond; thus, in an Order dated July 10, 2008, the RTC cancelled the July 31, 2008
schedule for arraignment and reset the arraignment and hearing on said motion for August 20, 2008. At said
scheduled date for arraignment and hearing on the motion, nobody appeared for the prosecution. Hence, the
RTC issued the Order[6] dated August 20, 2008 resetting the arraignment for October 31, 2008 and stating that:

x x x this Court hereby orders the public prosecutor x x x and/or his assistant prosecutor x x x to
appear and prosecute this case on the next scheduled hearing from arraignment up to the
termination of the trial of this case otherwise this Court will order the dismissal of this case for
failure to prosecute or nolle prosequi.[7]

On October 28, 2008, petitioner AAA, private complainant below, filed through her private counsel, a Motion for
Cancellation of Hearing,[8] manifesting that Atty. Pedro Felicen, Jr. had been granted the authority to prosecute
by the Provincial Prosecutor and praying that the scheduled arraignment on October 31, 2008 be cancelled
due to the pendency of private complainant's petition for transfer of venue before this Court. The authorized
private prosecutor did not appear on said hearing date. The hearing on October 31, 2008 proceeded as the
RTC ruled, in its Order[9] issued on the same day, that unless restrained by a higher court, the mere pendency
of a petition for transfer of venue is not sufficient reason to suspend the proceedings. Moreover, counsel for
accused invoked the accused's right to a speedy trial and, thus, private respondent was arraigned in the
presence of the Provincial Prosecutor who was designated by the RTC to represent the prosecution for the
purpose of arraignment. Pre-trial was set for November 13, 2008. Nevertheless, said schedule for pre-trial was
cancelled (per Order[10] dated November 4, 2008) as the Presiding Judge of the RTC had to attend a PHILJA
Seminar, and pre-trial was reset to November 24, 2008. On November 24, 2008, the day of the pre-trial itself,
the private prosecutor again filed a Motion for Cancellation of Hearing, again using as justification the
pendency of the petition for transfer of venue. The RTC issued an Order on even date, reading as follows:

During the scheduled pre-trial conference of this case, the public prosecutors of Leyte, the
private prosecutor and the private complainant failed to appear despite proper notices sent [to]
them. A motion for cancellation of hearing was filed by the authorized private prosecutor, Pedro
Felicen, Jr. for reasons stated therein to which this Court finds to be not meritorious, hence, the
same is denied. x x x the public prosecutor as well as the counsel for the accused were directed
to make their oral comments on the first endorsement of the Hon. Deputy Court Administrator,
regarding the motion to transfer venue of this case to any of the RTC, at Tacloban City, x x x.

x x x Thereafter, the pre trial proceeded by discussing matters concerning the amicable
settlement, plea bargaining agreement, stipulation of facts, pre-marking of documentary
exhibits, number of witnesses, trial dates and nature of the defense. There being no other
matters to discuss on pre-trial in order to expedite the early disposition of this case, the pre-trial
proper is now deemed terminated.[11]

The said Order also scheduled the initial hearing for trial on the merits for December 12, 2008. On December
12, 2008, no one appeared for the prosecution, prompting counsel for accused private respondent to move for
dismissal of the case on the ground of failure to prosecute. Private respondent's motion to dismiss was denied
per Order[12] dated December 12, 2008, and hearing was reset to January 16, 2009.

Again, on the very day of the January 16, 2009 hearing, the private prosecutor filed an Urgent Motion for
Cancellation of Hearing, stating that it

was only on January 14, 2009 that he was furnished a copy of the notice of the January 16, 2009 hearing and
he had to attend a previously scheduled hearing for another case he was handling, set for the very same
date. Thus, in the Order dated January 16, 2009, the RTC disposed, thus:

x x x Again notably absent are the private prosecutor, the two public prosecutors designated by
the Department of Justice to prosecute this case as well as the private complainant herself.
A last minute urgent motion to reset was filed by the private prosecutor, but the same is denied
being in violation of the three (3) day rule in filing written postponements. After hearing the
arguments coming from both the public prosecutor assigned to this Court and counsel for the
defense, the Court deems it proper to act on the urgency of the matter prayed for by the said
counsel. Considering that the accused has been languishing in jail since June, 2008 up to the
present and to allow him to stay in jail for a single minute, it is quite unreasonable and would
violate his right to speedy trial.
WHEREFORE, finding the motion of the counsel for the accused to be based on grounds that
are meritorious, this Court pursuant to x x x the rule on speedy trial (RA 8433) [should be 8493]
hereby orders this case dismissed for failure of the prosecution to prosecute or nolle
prosequi.[13]

Petitioners filed a motion for reconsideration, but the RTC denied the same per Resolution dated March 16,
2009.

Hence, the present petition for certiorari, alleging that public respondent acted with grave abuse of discretion
amounting to lack or excess of jurisdiction in rashly and precipitately dismissing the rape case against private
respondent. Respondents counter that there was no grave abuse committed by the trial court and setting aside
the dismissal of the rape case would put private respondent in double jeopardy.

The Court finds the petition bereft of merit.

Firstly, petitioners failed to observe the doctrine on hierarchy of courts. In Garcia v. Miro,[14] the Court,
quoting Vergara, Sr. v. Suelto,[15] ruled thus:

The Supreme Court is a court of last resort, and must so remain if it is to satisfactorily
perform the functions assigned to it by the fundamental charter and immemorial
tradition. It cannot and should not be burdened with the task of dealing with causes in the first
instance. Its original jurisdiction to issue the so-called extraordinary writs should be
exercised only where absolutely necessary or where serious and important reasons exist
therefor. Hence, that jurisdiction should generally be exercised relative to actions or
proceedings before the Court of Appeals, or before constitutional or other tribunals, bodies or
agencies whose acts for some reason or another are not controllable by the Court of
Appeals. Where the issuance of an extraordinary writ is also within the competence of
the Court of Appeals or a Regional Trial Court, it is in either of these courts that the
specific action for the writ's procurement must be presented. This is, and should
continue, to be the policy in this regard, a policy that courts and lawyers must strictly
observe.[16] (Emphasis supplied.)

On this point alone, the petition is already dismissible. However, on several occasions, this Court found
compelling reasons to relax the rule on observance on hierarchy of courts. In Pacoy v. Cajigal,[17] the Court
opted not to strictly apply said doctrine, since the issue involved is double jeopardy, considered to be one of
the most fundamental constitutional rights of an accused. Hence, the Court also finds sufficient reason to relax
the rule in this case as it also involves the issue of double jeopardy, necessitating a look into the merits of the
petition.

Petitioners insist that the RTC dismissed the criminal case against private respondent too hurriedly, despite the
provision in Section 10 of the Speedy Trial Act of 1998 (Republic Act No. 8493), now incorporated in Section 3,
Rule 119 of the Rules of Court, to wit:

SEC. 3. Exclusions. - The following periods of delay shall be excluded in computing the time
within which trial must commence:
(a) Any period of delay resulting from other proceedings concerning
the accused, including but not limited to the following:

xxxx

(5) Delay resulting from orders of inhibition, or proceedings relating to change of

venue of cases or transfer from other courts;

x x x x[18]

A careful reading of the above rule would show that the only delays that may be excluded from the time limit
within which trial must commence are those resulting from proceedings concerning the accused. The time
involved in the proceedings in a petition for transfer of venue can only be excluded from said time limit if it was
the accused who instituted the same. Hence, in this case, the time during which the petition for transfer of
venue filed by the private complainant is pending, cannot be excluded from the time limit of thirty (30) days
from receipt of the pre-trial order imposed in Section 1, Rule 119 of the Rules of Court.

The records reveal that the 30-day time limit set by Section 1, Rule 119 of the Rules of Court had, in fact,
already been breached. The private prosecutor received the Pre-trial Order[19] dated November 24, 2008 on
December 3, 2008, while the Provincial Prosecutor received the same on December 2, 2008.[20] This means
that at the latest, trial should have commenced by January 2, 2009, or if said date was a Sunday or holiday,
then on the very next business day. Yet, because of the prosecution's failure to appear at the December 12,
2008 hearing for the initial presentation of the prosecution's evidence, the RTC was constrained to reset the
hearing to January 16, 2009, which is already beyond the 30-day time limit. Nevertheless, the prosecution
again failed to appear at the January 16, 2009 hearing. Indeed, as aptly observed by the RTC, petitioners
showed recalcitrant behavior by obstinately refusing to comply with the RTC's directives to commence
presentation of their evidence. Petitioners did not even show proper courtesy to the court, by filing motions for
cancellation of the hearings on the very day of the hearing and not even bothering to appear on the date they
set for hearing on their motion. As set forth in the narration of facts above, the prosecution appeared to be
intentionally delaying and trifling with court processes.

Petitioners are likewise mistaken in their notion that mere pendency of their petition for transfer of venue
should interrupt proceedings before the trial court. Such situation is akin to having a pending petition
for certiorari with the higher courts. In People v. Hernandez,[21] the Court held that delay resulting from
extraordinary remedies against interlocutory orders must be read in harmony with Section 7, Rule 65 of the
Rules of Court which provides that the [p]etition [under Rule 65] shall not interrupt the course of the principal
case unless a temporary restraining order or a writ of preliminary injunction has been issued against
the public respondent from further proceeding in the case.[22] The trial court was then correct and acting
well within its discretion when it refused to grant petitioners' motions for postponement mainly because of the
pendency of their petition for transfer of venue.

The trial court cannot be faulted for refusing to countenance delays in the prosecution of the case. The Court's
ruling in Tan v. People[23] is quite instructive, to wit:

An accused's right to "have a speedy, impartial, and public trial" is guaranteed in criminal
cases by Section 14 (2) of Article III of the Constitution. This right to a speedy trial may be
defined as one free from vexatious, capricious and oppressive delays, its "salutary objective"
being to assure that an innocent person may be free from the anxiety and expense of a court
litigation or, if otherwise, of having his guilt determined within the shortest possible time
compatible with the presentation and consideration of whatsoever legitimate defense he may
interpose. Intimating historical perspective on the evolution of the right to speedy trial, we
reiterate the old legal maxim, "justice delayed is justice denied." This oft-repeated adage
requires the expeditious resolution of disputes, much more so in criminal cases where an
accused is constitutionally guaranteed the right to a speedy trial.

Following the policies incorporated under the 1987 Constitution, Republic Act No. 8493,
otherwise known as "The Speedy Trial Act of 1998," was enacted, with Section 6 of said act
limiting the trial period to 180 days from the first day of trial. Aware of problems resulting in the
clogging of court dockets, the Court implemented the law by issuing Supreme Court Circular No.
38-98, which has been incorporated in the 2000 Rules of Criminal Procedure, Section 2 of Rule
119.
In Corpuz v. Sandiganbayan, the Court had occasion to state -

The right of the accused to a speedy trial and to a speedy disposition of the case
against him was designed to prevent the oppression of the citizen by holding
criminal prosecution suspended over him for an indefinite time, and to prevent
delays in the administration of justice by mandating the courts to proceed with
reasonable dispatch in the trial of criminal cases. Such right to a speedy trial and
a speedy disposition of a case is violated only when the proceeding is attended
by vexatious, capricious and oppressive delays. The inquiry as to whether or not
an accused has been denied such right is not susceptible by precise
qualification. The concept of a speedy disposition is a relative term and must
necessarily be a flexible concept.

While justice is administered with dispatch, the essential ingredient is orderly,

expeditious and not mere speed. It cannot be definitely said how long is too long
in a system where justice is supposed to be swift, but deliberate. It is consistent
with delays and depends upon circumstances. It secures rights to the accused,
but it does not preclude the rights of public justice. Also, it must be borne in mind
that the rights given to the accused by the Constitution and the Rules of Court
are shields, not weapons; hence, courts are to give meaning to that intent.

The Court emphasized in the same case that:

A balancing test of applying societal interests and the rights of the accused
necessarily compels the court to approach speedy trial cases on an ad hoc basis.

In determining whether the accused has been deprived of his right to a speedy
disposition of the case and to a speedy trial, four factors must be considered: (a)
length of delay; (b) the reason for the delay; (c) the defendant's assertion of his
right; and (d) prejudice to the defendant. x x x.

Closely related to the length of delay is the reason or justification of the State for
such delay. Different weights

should be assigned to different reasons or justifications invoked by the State. x x

x.

Exhaustively explained in Corpuz v. Sandiganbayan, an accused's right to speedy trial is

deemed violated only when the proceeding is attended by vexatious, capricious, and oppressive
delays. In determining whether petitioner was deprived of this right, the factors to
consider and balance are the following: (a) duration of the delay; (b) reason therefor; (c)
assertion of the right or failure to assert it; and (d) prejudice caused by such delay.

xxxx

We emphasize that in determining the right of an accused to speedy trial, courts are
required to do more than a mathematical computation of the number of postponements
 of the scheduled hearings of the case. A mere mathematical reckoning of the time
involved is clearly insufficient, and particular regard must be given to the facts and
circumstances peculiar to each case.[24]

Here, it must be emphasized that private respondent had already been deprived of his liberty on two
occasions. First, during the preliminary investigation before the MCTC, when he was incarcerated from
November 18, 2004 to March 16, 2005, or a period of almost four months; then again, when an Information
had already been issued and since rape is a non-bailable offense, he was imprisoned beginning June 27, 2008
until the case was dismissed on January 16, 2009, or a period of over 6 months. Verily, there can be no cavil
that deprivation of liberty for any duration of time is quite oppressive. Because of private respondent's
continued incarceration, any delay in trying the case would cause him great prejudice. Thus, it was absolutely
vexatious and oppressive to delay the trial in the subject criminal case to await the outcome of petitioners'
petition for transfer of venue, especially in this case where there is no temporary restraining order or writ of
preliminary injunction issued by a higher court against herein public respondent from further proceeding in the
case.

Hence, the Court does not find any grave abuse of discretion committed by the trial court in dismissing the
case against private respondent for violation of his constitutional right to speedy trial.

WHEREFORE, the petition is DISMISSED.

SO ORDERED.

G.R. No. 185527 July 18, 2012

HARRY L. GO, TONNY NGO, JERRY NGO AND JANE GO, Petitioners, vs.
THE PEOPLE OF THE PHILIPPINES and HIGHDONE COMPANY, LTD., ET AL., Respondents.

DECISION
The procedure for taking depositions in criminal cases recognizes the prosecution's right to preserve
testimonial evidence and prove its case despite the unavailability of its witness. It cannot, however, give
license to prosecutorial indifference or unseemly involvement in a prosecution witness' absence from trial. To
rule otherwise would effectively deprive the accused of his fundamental right to be confronted with the
witnesses against him.

In this Petition for Review on Certiorari under Rule 45 of the Revised Rules of Court, petitioners seek to nullify
and set aside the February 19, 2008 Decision1 and November 28, 2008 Resolution2 of the Court of Appeals
(CA) in CA-G.R. SP No. 99383, which reversed the September 12, 2006 Order3 issued by the Regional Trial
Court (RTC) of Manila, Branch 27 in Civil Case No. 06-114844 and upheld the grant of the prosecution’s
motion to take the testimony of a witness by oral depositions in Laos, Cambodia.

Petitioners Harry Go, Tonny Ngo, Jerry Ngo and Jane Go were charged before the Metropolitan Trial Court
(MeTC) of Manila for Other Deceits under Article 318 of the Revised Penal Code (RPC) docketed as Criminal
Case No. 396447. The Information4 dated September 24, 2003, later amended5 on September 14, 2004, reads:

"That sometime in August 1996, in the City of Manila, Philippines, the said accused, conspiring, confederating
together and helping one another, did then and there willfully, unlawfully and feloniously defraud Highdone
Company Ltd. Represented by Li Luen Ping, in the following manner, to wit: all said accused, by means of
false manifestations and fraudulent representations which they made to said Li Luen Ping to the effect that
they have chattels such as machinery, spare parts, equipment and raw materials installed and fixed in the
premises of BGB Industrial Textile Mills Factory located in the Bataan Export Processing Zone (BEPZ) in
Mariveles, Bataan, executed a Deed of Mortgage for a consideration of the amount of $464,266.90 or its peso
equivalent at P20,892,010.50 more or less in favor of ML Resources and Highdone Company Ltd.
Representing that the said deed is a FIRST MORTGAGE when in truth and in fact the accused well knew that
the same had been previously encumbered, mortgaged and foreclosed by CHINA BANK CORPORATION as
early as September 1994 thereby causing damage and prejudice to said HIGHDONE COMPANY LTD., in the
said amount of $464,266.90 or its peso equivalent at P20,892,010.50 more or less."

Upon arraignment, petitioners pleaded not guilty to the charge.

The prosecution's complaining witness, Li Luen Ping, a frail old businessman from Laos, Cambodia, traveled
from his home country back to the Philippines in order to attend the hearing held on September 9, 2004.
However, trial dates were subsequently postponed due to his unavailability.

On October 13, 2005, the private prosecutor filed with the MeTC a Motion to Take Oral Deposition6 of Li Luen
Ping, alleging that he was being treated for lung infection at the Cambodia Charity Hospital in Laos, Cambodia
and that, upon doctor's advice, he could not make the long travel to the Philippines by reason of ill health.

Notwithstanding petitioners' Opposition,7 the MeTC granted8 the motion after the prosecution complied with the
directive to submit a Medical Certificate of Li Luen Ping. Petitioners sought its reconsideration which the MeTC
denied,9 prompting petitioners to file a Petition for Certiorari10 before the RTC.

On September 12, 2006, the RTC granted the petition and declared the MeTC Orders null and void. 11 The RTC
held that Section 17, Rule 23 on the taking of depositions of witnesses in civil cases cannot apply suppletorily
to the case since there is a specific provision in the Rules of Court with respect to the taking of depositions of
prosecution witnesses in criminal cases, which is primarily intended to safeguard the constitutional rights of the
accused to meet the witness against him face to face.
Upon denial by the RTC of their motion for reconsideration through an Order dated March 5, 2006, 12 the
prosecution elevated the case to the CA.

On February 19, 2008, the CA promulgated the assailed Decision which held that no grave abuse of discretion
can be imputed upon the MeTC for allowing the deposition-taking of the complaining witness Li Luen Ping
because no rule of procedure expressly disallows the taking of depositions in criminal cases and that, in any
case, petitioners would still have every opportunity to cross-examine the complaining witness and make timely
objections during the taking of the oral deposition either through counsel or through the consular officer who
would be taking the deposition of the witness.

On November 28, 2008, the CA denied petitioners' motion for reconsideration. Hence, this petition alleging that
–

I.THE COURT OF APPEALS ERRED IN NOT FINDING THAT THE METROPOLITAN TRIAL COURT
INFRINGED THE CONSTITUTIONAL RIGHT OF THE PETITIONERS TO A PUBLIC TRIAL IN
ALLOWING THE TAKING OF THE DEPOSITION OF THE COMPLAINING WITNESS IN LAOS,
CAMBODIA.

II.THE COURT OF APPEALS ERRED IN NOT FINDING THAT THE DEPOSITION TAKING OF THE
COMPLAINING WITNESS IN LAOS, CAMBODIA IS AN INFRINGEMENT OF THE CONSTITUTIONAL
RIGHT OF THE PETITIONERS TO CONFRONT THE SAID WITNESS FACE TO FACE.

III.THE COURT OF APPEALS ERRED IN SUSTAINING THE JUDICIAL LEGISLATION COMMITTED

BY THE METROPOLITAN TRIAL COURT IN APPLYING THE RULES ON DEPOSITION-TAKING IN
CIVIL CASES TO CRIMINAL CASES.

IV.THE COURT OF APPEALS ERRED IN LIMITING THE TRADITIONAL DEFINITION OF GRAVE

ABUSE OF DISCRETION, OVERLOOKING THE ESTABLISHED RULE THAT VIOLATION OF THE
CONSTITUTION, THE LAW OR JURISPRUDENCE SIMILARLY COMES WITHIN THE PURVIEW OF
GRAVE ABUSE OF DISCRETION.

We rule in favor of petitioners.

The Procedure for Testimonial Examination of an Unavailable Prosecution Witness is Covered Under Section
15, Rule 119.

The examination of witnesses must be done orally before a judge in open court. 13 This is true especially in
criminal cases where the Constitution secures to the accused his right to a public trial and to meet the
witnessess against him face to face. The requirement is the "safest and most satisfactory method of
investigating facts" as it enables the judge to test the witness' credibility through his manner and deportment
while testifying.14 It is not without exceptions, however, as the Rules of Court recognizes the conditional
examination of witnesses and the use of their depositions as testimonial evidence in lieu of direct court
testimony.

Even in criminal proceedings, there is no doubt as to the availability of conditional examination of witnesses –
both for the benefit of the defense, as well as the prosecution. The Court's ruling in the case of Vda. de
Manguerra v. Risos15 explicitly states that –

"x x x As exceptions, Rule 23 to 28 of the Rules of Court provide for the different modes of discovery that may
be resorted to by a party to an action. These rules are adopted either to perpetuate the testimonies of
witnesses or as modes of discovery. In criminal proceedings, Sections 12, 13 and 15, Rule 119 of the Revised
Rules of Criminal Procedure, which took effect on December 1, 2000, allow the conditional examination of both
the defense and prosecution witnesses." (Underscoring supplied)16

The procedure under Rule 23 to 28 of the Rules of Court allows the taking of depositions in civil cases, either
upon oral examination or written interrogatories, before any judge, notary public or person authorized to
administer oaths at any time or place within the Philippines; or before any

Philippine consular official, commissioned officer or person authorized to administer oaths in a foreign state or
country, with no additional requirement except reasonable notice in writing to the other party.17

But for purposes of taking the deposition in criminal cases, more particularly of a prosecution witness who
would forseeably be unavailable for trial, the testimonial examination should be made before the court, or at
least before the judge, where the case is pending as required by the clear mandate of Section 15, Rule 119 of
the Revised Rules of Criminal Procedure. The pertinent provision reads thus:

SEC. 15. Examination of witness for the prosecution. – When it satisfactorily appears that a witness for the
prosecution is too sick or infirm to appear at the trial as directed by the court, or has to leave the Philippines
with no definite date of returning, he may forthwith be conditionally examined before the court where the case
is pending. Such examination, in the presence of the accused, or in his absence after reasonable notice to
attend the examination has been served on him shall be conducted in the same manner as an examination at
the trial. Failure or refusal of the accused to attend the examination after notice shall be considered a waiver.
The statement taken may be admitted in behalf of or against the accused.

Since the conditional examination of a prosecution witness must take place at no other place than the court
where the case is pending, the RTC properly nullified the MeTC's orders granting the motion to take the
deposition of Li Luen Ping before the Philippine consular official in Laos, Cambodia. We quote with approval
the RTC's ratiocination in this wise:

The condition of the private complainant being sick and of advanced age falls within the provision of Section 15
Rule 119 of the Rules of Court. However, said rule substantially provides that he should be conditionally
examined before the court where the case is pending. Thus, this Court concludes that the language of Section
15 Rule 119 must be interpreted to require the parties to present testimony at the hearing through live
witnesses, whose demeanor and credibility can be evaluated by the judge presiding at the hearing, rather than
by means of deposition. No where in the said rule permits the taking of deposition outside the Philippines
whether the deponent is sick or not.18 (Underscoring supplied)

Certainly, to take the deposition of the prosecution witness elsewhere and not before the very same court
where the case is pending would not only deprive a detained accused of his right to attend the proceedings but
also deprive the trial judge of the opportunity to observe the prosecution witness' deportment and properly
assess his credibility, which is especially intolerable when the witness' testimony is crucial to the prosecution's
case against the accused. This is the import of the Court's ruling in Vda. de Manguerra 19 where we further
declared that –

While we recognize the prosecution's right to preserve the testimony of its witness in order to prove its case,
we cannot disregard the rules which are designed mainly for the protection of the accused's constitutional
rights. The giving of testimony during trial is the general rule. The conditional examination of a witness outside
of the trial is only an exception, and as such, calls for a strict construction of the rules. 20 (Underscoring
supplied)
It is argued that since the Rules of Civil Procedure is made explicitly applicable in all cases, both civil and
criminal as well as special proceedings, the deposition-taking before a Philippine consular official under Rule
23 should be deemed allowable also under the circumstances.

However, the suggested suppletory application of Rule 23 in the testimonial examination of an unavailable
prosecution witness has been categorically ruled out by the Court in the same case of Vda. de Manguerra, as
follows:

It is true that Section 3, Rule 1 of the Rules of Court provides that the rules of civil procedure apply to all
actions, civil or criminal, and special proceedings. In effect, it says that the rules of civil procedure have
suppletory application to criminal cases. However, it is likewise true that criminal proceedings are primarily
governed by the Revised Rules of Criminal Procedure.

Considering that Rule 119 adequately and squarely covers the situation in the instant case, we find no cogent
reason to apply Rule 23 suppletorily or otherwise." (Underscoring supplied)

The Conditional Examination of a Prosecution Witness Cannot Defeat the Rights of the Accused to Public Trial
and Confrontation of Witnesses

The CA took a simplistic view on the use of depositions in criminal cases and overlooked fundamental
considerations no less than the Constitution secures to the accused, i.e., the right to a public trial and the right
to confrontation of witnesses. Section 14(2), Article III of the

Constitution provides as follows:

Section 14. (1) x x x

(2) In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and shall
enjoy the right to be heard by himself and counsel, to be informed of the nature and cause of the accusation
against him, to have a speedy, impartial and public trial, to meet the witnesses face to face, and to have
compulsory process to secure the attendance of witnesses and the production of evidence in his behalf.
However, after arraignment, trial may proceed notwithstanding the absence of the accused provided that he
has been duly notified and his failure to appear is unjustifiable. (Underscoring supplied)

In dismissing petitioners' apprehensions concerning the deprivation of their constitutional rights to a public trial
and confrontation, the CA opined that petitioners would still be accorded the right to cross-examine the
deponent witness and raise their objections during the deposition-taking in the same manner as in a regular
court trial.

We disagree. There is a great deal of difference between the face-to- face confrontation in a public criminal
trial in the presence of the presiding judge and the cross-examination of a witness in a foreign place outside
the courtroom in the absence of a trial judge. In the aptly cited case of People v. Estenzo, 21 the Court noted the
uniqueness and significance of a witness testifying in open court, thus:

"The main and essential purpose of requiring a witness to appear and testify orally at a trial is to secure for the
adverse party the opportunity of cross-examination. "The opponent", according to an eminent authority,
"demands confrontation, not for the idle purpose of gazing upon the witness, or of being gazed upon by him,
but for the purpose of cross examination which cannot be had except by the direct and personal putting of
questions and obtaining immediate answers." There is also the advantage of the witness before the judge, and
it is this – it enables the judge as trier of facts "to obtain the elusive and incommunicable evidence of a witness'
deportment while testifying, and a certain subjective moral effect is produced upon the witness. It is only when
the witness testifies orally that the judge may have a true idea of his countenance, manner and expression,
which may confirm or detract from the weight of his testimony. Certainly, the physical condition of the witness
will reveal his capacity for accurate observation and memory, and his deportment and physiognomy will reveal
clues to his character. These can only be observed by the judge if the witness testifies orally in court. x x
x"22 (Underscoring supplied)1âwphi1

The right of confrontation, on the other hand, is held to apply specifically to criminal proceedings and to have a
twofold purpose: (1) to afford the accused an opportunity to test the testimony of witnesses by cross-
examination, and (2) to allow the judge to observe the deportment of witnesses. 23 The Court explained in
People v. Seneris24 that the constitutional requirement "insures that the witness will give his testimony under
oath, thus deterring lying by the threat of perjury charge; it forces the witness to submit to cross-examination, a
valuable instrument in exposing falsehood and bringing out the truth; and it enables the court to observe the
demeanor of the witness and assess his credibility."25

As the right of confrontation is intended "to secure the accused in the right to be tried as far as facts provable
by witnesses as meet him face to face at the trial who give their testimony in his presence, and give to the
accused an opportunity of cross-examination,"26 it is properly viewed as a guarantee against the use of
unreliable testimony in criminal trials. In the American case of Crawford v. Washington, 27 the US Supreme
Court had expounded on the procedural intent of the confrontation requirement, thus:

Where testimonial statements are involved, we do not think the Framers meant to leave the Sixth
Amendment's right to confront witness face to face protection to the vagaries of the rules of evidence, much
less to amorphous notions of "reliability". Certainly, none of the authorities discussed above acknowledges any
general reliability exception to the common-law rule.

Admitting statements deemed reliable by a judge is fundamentally at odds with the right of confrontation. To be
sure, the Clause's ultimate goal is to ensure reliability of evidence, but it is a procedural rather than a
substantive guarantee. It commands, not that evidence be reliable, but that reliability be assessed in a
particular manner: by testing in the crucible of cross-examination. The Clause thus reflects a judgment, not
only about the desirability of reliable evidence (a point on which there could be little dissent), but about how
reliability can best be determined." (Underscoring supplied)

The Webb Ruling is Not on All Fours with the Instant Case

The CA found the frail and infirm condition of the prosecution witness as sufficient and compelling reason to
uphold the MeTC Orders granting the deposition-taking, following the ruling in the case of People v.
Webb28 that the taking of an unavailable witness' deposition is in the nature of a discovery procedure the use of
which is within the trial court's sound discretion which needs only to be exercised in a reasonable manner and
in consonance with the spirit of the law.29

But the ruling in the cited case is not instantly applicable herein as the factual settings are not
similar.1âwphi1 The accused in the Webb case had sought to take the oral deposition of five defense
witnesses before a Philippine consular agent in lieu of presenting them as live witnesses, alleging that they
were all residents of the United States who could not be compelled by subpoena to testify in court. The trial
court denied the motion of the accused but the CA differed and ordered the deposition taken. When the matter
was raised before this Court, we sustained the trial court's disallowance of the deposition-taking on the limited
ground that there was no necessity for the procedure as the matter sought to be proved by way of deposition
was considered merely corroborative of the evidence for the defense.30
In this case, where it is the prosecution that seeks to depose the complaining witness against the accused, the
stringent procedure under Section 15, Rule 119 cannot be ignored without violating the constitutional rights of
the accused to due process.

Finally, the Court takes note that prosecution witness Li Luen Ping had managed to attend the initial trial
proceedings before the MeTC of Manila on September 9, 2004. At that time, Li Luen Ping's old age and fragile
constitution should have been unmistakably apparent and yet the prosecution failed to act with zeal and
foresight in having his deposition or testimony taken before the MeTC pursuant to Section 15, Rule 119 of the
Revised Rules of Court. In fact, it should have been imperative for the prosecution to have moved for the
preservation of Li Luen Ping's testimony at that first instance given the fact that the witness is a non-resident
alien who can leave the Philippines anytime without any definite date of return. Obviously, the prosecution
allowed its main witness to leave the court's jurisdiction without availing of the court procedure intended to
preserve the testimony of such witness. The loss of its cause is attributable to no other party.

Still, even after failing to secure Li Luen Ping's conditional examination before the MeTC prior to said witness'
becoming sick and unavailable, the prosecution would capitalize upon its own failure by pleading for a liberal
application of the rules on depositions. It must be emphasized that while the prosecution must provide the
accused every opportunity to take the deposition of witnesses that are material to his defense in order to avoid
charges of violating the right of the accused to compulsory process, the State itself must resort to deposition-
taking sparingly if it is to guard against accusations of violating the right of the accused to meet the witnesses
against him face to face. Great care must be observed in the taking and use of depositions of prosecution
witnesses to the end that no conviction of an accused will rely on ex parte affidavits and deposition.31

Thus, the CA ignored the procedure under the Revised Rules of Criminal Procedure for taking the deposition of
an unavailable prosecution witness when it upheld the trial court's order allowing the deposition of prosecution
witness Li Luen Ping to take place in a venue other than the court where the case is pending. This was
certainly grave abuse of discretion.

WHEREFORE, the petition is hereby GRANTED. The assailed Decision dated February 19, 2008 and the
Resolution dated November 28, 2008 of the Court of Appeals are REVERSED and SET ASIDE. Accordingly,
the Decision of the Regional Trial Court which disallowed the deposition-taking in Laos, Cambodia is
REINSTATED.

SO ORDERED
ANTONIO CABADOR, G.R. No. 186001
Petitioner,
- versus - Carpio Morales,**
PEOPLE OF THE PHILIPPINES,
Respondent. Promulgated: October 2, 2009
x ---------------------------------------------------------------------------------------- x

DECISION

Before the Court is a petition for review on certiorari, assailing the Court of Appeals (CA) Decision of August 4,
2008[1] and Resolution of October 28, 2008[2]in CA-G.R. SP 100431 that affirmed the August 31, 2006 Order[3] of the
Regional Trial Court (RTC) of Quezon City.

The facts are not disputed.

On June 23, 2000 the public prosecutor accused petitioner Antonio Cabador before the RTC of Quezon City in
Criminal Case Q-00-93291 of murdering, in conspiracy with others, Atty. Jun N. Valerio.[4] On February 13, 2006,
after presenting only five witnesses over five years of intermittent trial, the RTC declared at an end the prosecutions
presentation of evidence and required the prosecution to make a written or formal offer of its documentary evidence
within 15 days from notice.[5] But the public prosecutor asked for three extensions of time, the last of which was to
end on July 28, 2006. Still, the prosecution did not make the required written offer.

On August 1, 2006 petitioner Cabador filed a motion to dismiss the case,[6] complaining of a turtle-paced proceeding
in the case since his arrest and detention in 2001 and invoking his right to a speedy trial. Further, he claimed that in
the circumstances, the trial court could not consider any evidence against him that had not been formally offered. He
also pointed out that the prosecution witnesses did not have knowledge of his alleged part in the crime charged.

Unknown to petitioner Cabador, however, four days earlier or on July 28, 2006 the prosecution asked the RTC for
another extension of the period for its formal offer, which offer it eventually made on August 1, 2006, the day
Cabador filed his motion to dismiss.[7]

On August 31, 2006 the RTC issued an Order treating petitioner Cabadors August 1, 2006 motion to dismiss as a
demurrer to evidence. And, since he filed his motion without leave of court, the RTC declared him to have waived
his right to present evidence in his defense. The trial court deemed the case submitted for decision insofar as he
was concerned. Cabador filed a motion for reconsideration of this Order but the RTC denied it on February 19,
2007.[8] Cabador questioned the RTCs actions before the CA but on August 4, 2008 the latter denied his petition
and affirmed the lower courts actions.[9] With the CAs denial of his motion for reconsideration, on October 28, 2008
petitioner came to this Court via a petition for review on certiorari.

The issue in this case is whether or not petitioner Cabadors motion to dismiss before the trial court was in fact a
demurrer to evidence filed without leave of court, with the result that he effectively waived his right to present
evidence in his defense and submitted the case for decision insofar as he was concerned.
The trial proper in a criminal case usually has two stages: first, the prosecutions presentation of evidence against
the accused and, second, the accuseds presentation of evidence in his defense. If, after the prosecution has
presented its evidence, the same appears insufficient to support a conviction, the trial court may at its own initiative
or on motion of the accused dispense with the second stage and dismiss the criminal action. [10] There is no point for
the trial court to hear the evidence of the accused in such a case since the prosecution bears the burden of proving
his guilt beyond reasonable doubt. The order of dismissal amounts to an acquittal.

But because some have in the past used the demurrer in order to delay the proceedings in the case, the remedy
now carries a caveat. When the accused files a demurrer without leave of court, he shall be deemed to have waived
the right to present evidence and the case shall be considered submitted for judgment.[11] On occasions, this
presents a problem such as when, like the situation in this case, the accused files a motion to dismiss that, to the
RTC, had the appearance of a demurrer to evidence. Cabador insists that it is not one but the CA, like the lower
court, ruled that it is.

This Court held in Enojas, Jr. v. Commission on Elections[12] that, to determine whether the pleading filed is a
demurer to evidence or a motion to dismiss, the Court must consider (1) the allegations in it made in good faith; (2)
the stage of the proceeding at which it is filed; and (3) the primary objective of the party filing it.

Here, the pertinent portions of petitioner Cabadors motion to dismiss read as follows:

2. On November 9, 2001, the accused was arrested and subsequently brought to the Quezon City jail
through a commitment order dated November 21, 2001 where he had been detained during the course of this case.

3. The accused was arraigned on January 8, 2002 and trial began soon after.

4. UP-OLA entered its appearance as counsel for the accused on January 20, 2005.

5. On February 10, 2006, the Honorable Court terminated the presentation of evidence for the prosecution
considering that the case has been going on for 5 years already and during that period the prosecution has only
presented 5 witnesses. Moreover, xxx there had been numerous postponements due to failure of the prosecution to
ensure the presence of its witnesses.

6. In an order dated March 31, 2006, the Honorable court required the public prosecutor to submit its formal
offer of evidence within fifteen (15) days from receipt of such order.

7. On April 17, 2006, the public prosecutor was again absent so the presentation of evidence for the
accused was reset to June 6, 2006.

8. During the same hearing, the Prosecution was again granted an additional fifteen (15) days within which
to file their formal offer of evidence.

9. On June 6, 2006, the public prosecutor again failed to appear and to file their formal offer of evidence. In
an order, the Honorable Court again extended to the prosecution an additional fifteen (15) days from receipt of the
order within which to file their formal offer of evidence.

10. On June 28, 2006, the Honorable Court issued an order granting the prosecution a thirty-day extension,
or until July 28, 2006 within which to file their formal offer of evidence since the public prosecutor was on leave.
 11. Upon the expiration of the extension granted by the Honorable Court, the prosecution failed to file their
formal offer of evidence.

10. (Sic) Despite three (3) extensions, the prosecution failed to file formal offer of evidence.

11. (Sic) Sec. 34, Rule 132 of the Rules of Court provides that the court shall consider no evidence which
has not been formally offered. A formal offer is necessary, since judges are required to base their findings of fact
and their judgment solely and strictly upon the evidence offered by the parties at the trial (Ong vs. CA, GR No.
117103).Hence, without any formal offer of evidence, this Honorable Court has no evidence to consider.

12. The charge against the accused has no leg to stand on. The witnesses that had been presented by the
prosecution testified mainly on the occurrences on the night of the incident and had no knowledge of any connection
with or any participation by the accused in the incident.

13. The hearings of the case have been delayed since 2001 through no fault of the defense to the prejudice
of the rights of the accused to a speedy trial, mandated by no less than Art. III, Sec. 16 of the Constitution.

14. Since UP-OLA had entered its appearance in 2005, the case had been reset for twelve (12) times, most
of which are due to the fault or absence of the prosecution. For the five year duration of the case, the prosecution
still has not presented any evidence to prove the guilt of the accused beyond reasonable doubt. Meanwhile, the
accused has been unduly stripped of this liberty for more than five (5) years upon an unsubstantiated charge.

15. The accused was injured and debilitated in the course of his arrest which resulted in the amputation of
his left leg. His movement is severely hampered and his living conditions are less adequate. To subject him to
further delays when there is no substance to the charge against him would tantamount to injustice. [13]

It can be seen from the above that petitioner Cabador took pains to point out in paragraphs 2, 3, 5, 6, 7, 8, 9, 10, 11,
10 (sic), 13, 14, and 15 above how trial in the case had painfully dragged on for years. The gaps between
proceedings were long, with hearings often postponed because of the prosecutors absence. This was further
compounded, Cabador said, by the prosecutions repeated motions for extension of time to file its formal offer and its
failure to file it within such time.Cabador then invoked in paragraph 13 above his right to speedy trial. But the RTC
and the CA simply chose to ignore these extensive averments and altogether treated Cabadors motion as a
demurrer to evidence because of a few observations he made in paragraphs 11 (sic) and 12 regarding the
inadequacy of the evidence against him.

In criminal cases, a motion to dismiss may be filed on the ground of denial of the accuseds right to speedy
trial.[14] This denial is characterized by unreasonable, vexatious, and oppressive delays without fault of the accused,
or by unjustified postponements that unreasonably prolonged the trial.[15] This was the main thrust of Cabadors
motion to dismiss and he had the right to bring this up for a ruling by the trial court.

Cabador of course dropped a few lines in his motion to dismiss in paragraphs 11 (sic) and 12, saying that the trial
court has no evidence to consider, the charge has no leg to stand on, and that the witnesses x x x had no
knowledge of any connection with or any participation by the accused in the incident. But these were mere
conclusions, highlighting what five years of trial had accomplished.

The fact is that Cabador did not even bother to do what is so fundamental in any demurrer. He did not state what
evidence the prosecution had presented against him to show in what respects such evidence failed to meet the
elements of the crime charged. His so-called demurrer did not touch on any particular testimony of even one
witness. He cited no documentary exhibit. Indeed, he could not because, he did not know that the prosecution finally
made its formal offer of exhibits on the same date he filed his motion to dismiss.[16] To say that Cabador filed a
demurrer to evidence is equivalent to the proverbial blind man, touching the side of an elephant, and exclaiming that
he had touched a wall.
Besides, a demurrer to evidence assumes that the prosecution has already rested its case. Section 23, Rule 119 of
the Revised Rules of Criminal Procedure, reads:

Demurrer to evidence. After the prosecution rests its case, the court may dismiss the
action on the ground of insufficiency of evidence (1) on its own initiative after giving the prosecution
the opportunity to be heard or (2) upon demurrer to the evidence filed by the accused with or without
leave of court. (Emphasis supplied)

Here, after the prosecution filed its formal offer of exhibits on August 1, 2006, the same day Cabador filed his motion
to dismiss, the trial court still needed to give him an opportunity to object to the admission of those exhibits. It also
needed to rule on the formal offer. And only after such a ruling could the prosecution be deemed to have rested its
case. Since Cabador filed his motion to dismiss before he could object to the prosecutions formal offer, before the
trial court could act on the offer, and before the prosecution could rest its case, it could not be said that he had
intended his motion to dismiss to serve as a demurrer to evidence.
In sum, tested against the criteria laid down in Enojas, the Court finds that petitioner Cabador filed a motion
to dismiss on the ground of violation of his right to speedy trial, not a demurrer to evidence. He cannot be declared
to have waived his right to present evidence in his defense.

On a final note, a demurrer to evidence shortens the proceedings in criminal cases. Caution must, however,
be exercised[17] in view of its pernicious consequence on the right of the accused to present evidence in his defense,
the seriousness of the crime charged, and the gravity of the penalty involved.

WHEREFORE, the petition is GRANTED, the August 4, 2008 Decision and the October 28, 2008 Resolution of the
Court of Appeals in CA-G.R. SP 100431 are REVERSED and SET ASIDE, and the August 31, 2006 Order of the
Regional Trial Court of Quezon City, Branch 81 is NULLIFIED. The latter court is DIRECTED to resolve petitioner
Antonio Cabadors motion to dismiss based on the circumstances surrounding the trial in the case.

SO ORDERED.
[G.R. No. 182301 : January 31, 2011] JAIME ALFEREZ, Petitioner, v. PEOPLE OF THE
PHILIPPINES AND PINGPING CO, Respondents.

DECISION

This is a petition for review on certiorari under Rule 45 of the Rules of Court, assailing the Court of
Appeals (CA) Decision[1] dated December 13, 2007 and Resolution[2] dated March 4, 2008 in CA-G.R.
CEB-CR No. 00300.chanroblesllawlibrary

The facts of the case, as culled from the records, are as follows:chanroblesvirtuallawlibrary

Petitioner Jaime Alferez purchased construction materials from Cebu ABC Sales Commercial. As
payment for the goods, he issued three (3) checks for the total amount of P830,998.40. However, the
checks were dishonored for having been drawn against a closed account. Petitioner was thus charged
with three (3) counts of violation of Batas Pambansa Bilang (B.P. Blg.) 22 before the Municipal Trial Court
in Cities (MTCC), Cebu City. The cases were raffled to Branch 3 and docketed as Criminal Case Nos.
40985-R to 40987-R.[3] During the trial, the prosecution presented its lone witness, private complainant
Pingping Co.[4] Thereafter, the prosecution formally offered the following documentary
evidence:chanroblesvirtuallawlibrary
1. BPI Check No. 492089 dated 29 April 1994 in the sum of P78, 889.95;
2. BPI Check No. 492010 dated 22 June 1994 in the sum of P30,745.90;
3. BPI Check No. 492011 dated 22 June 1994 in the sum of P721,362.55;
4. The demand letter dated 7 July 1994 addressed to petitioner;
5. The registry receipt of the Post Office;
6. The face of the Registry Return Receipt;
7. The dorsal side of the Registry Return Receipt;
8. The Returned Check Ticket dated 23 June 1994; and
9. The reason for the dishonor. [5]

Instead of presenting evidence, petitioner filed a Demurrer to Evidence[6] on August 8, 2003, or

approximately ten (10) months after the prosecution rested its case. Petitioner averred that the
prosecution failed to show that he received the notice of dishonor or demand letter.chanroblesllawlibrary

On March 4, 2005, the MTCC issued a resolution[7] denying petitioner's Demurrer to Evidence, and
rendering judgment finding petitioner guilty as charged, the dispositive portion of which
reads:chanroblesvirtuallawlibrary

WHEREFORE, the Court finds the accused guilty beyond reasonable doubt of the crime of issuing
bouncing checks as defined and penalized under Section 1 of Batas Pambansa Blg. 22 and hereby
sentences the accused the following:chanroblesvirtuallawlibrary

1. To pay a fine of Php830,998.40 and in case of insolvency to suffer subsidiary imprisonment;

2. To pay private complainant the total face value of the checks in the amount of Php830,998.40 plus
1% interest per month beginning from the filing of the complaint.

SO ORDERED.[8]

Aggrieved, petitioner appealed to the Regional Trial Court (RTC), Branch 21, Cebu City. The RTC
rendered Judgment[9] affirming in toto the MTCC decision. Petitioner moved for reconsideration, but it was
denied in an Order[10] dated December 16, 2005. In the same Order, the RTC modified the MTCC
resolution by sentencing petitioner to suffer the penalty of imprisonment for six (6) months for each count
of violation of B.P Blg. 22, instead of fine as originally imposed

.chanroblesllawlibrary
Undaunted, petitioner elevated the matter to the CA via a petition for review under Rule 42 of the Rules of
Court. In the assailed Decision, the CA dismissed the petition for lack of merit. It sustained petitioner's
conviction as the elements of the crime had been sufficiently established. As to the service on petitioner of
the notice of dishonor, the appellate court pointed out that petitioner did not testify, and that he did not
object to the prosecution's evidence aimed at proving the fact of receipt of the notice of dishonor.
Consequently, the registry receipt and the return card adequately show the fact of receipt. As to
petitioner's contention that he was denied his right to present evidence after the denial of his demurrer to
evidence, the CA held that there was no such denial since it was merely the consequence of the filing of
demurrer without leave of court. Finally, as to the imposition of the penalty of imprisonment instead of fine,
the CA found no grave abuse of discretion on the part of the RTC since it was shown that petitioner acted
in bad faith.[11]
On March 4, 2008, the CA denied petitioner's motion for reconsideration. Hence, this petition anchored on
the following issues:chanroblesvirtuallawlibrary

Whether the Registry Receipt and Registry Return Receipt alone without presenting the person who
mailed and/or served the demand letter is sufficient notice of dishonor as required by BP
22.chanroblesllawlibrary

Whether the filing of the Demurrer of (sic) Evidence without leave and denied by the trial court is a waiver
of the right of the petitioner (the accused before the trial court) to present his evidence in support and to
rebut the evidence of the respondent particularly with respect to the civil aspect of the
case.chanroblesllawlibrary

On the alternative (if the petitioner is guilty), whether the accused should only be mete[d] the penalty of
fine as imposed by the trial court (MTCC).[12]

The petition is partly meritorious.

chanroblesllawlibrary
After a careful evaluation of the records of the case, we believe and so hold that the totality of the
evidence presented does not support petitioner's conviction for violation of B.P. Blg.
22.chanroblesllawlibrary

Section 1 of B.P. Blg. 22 defines the offense, as follows:[13]

Section 1. Checks without sufficient funds.--Any person who makes or draws and issues any check to
apply on account or for value, knowing at the time of issue that he does not have sufficient funds in or
credit with the drawee bank for the payment of such check in full upon its presentment, which check is
subsequently dishonored by the drawee bank for insufficiency of funds or credit or would have been
dishonored for the same reason had not the drawer, without any valid reason, ordered the bank to stop
payment, shall be punished by imprisonment of not less than thirty days but not more than one (1) year or
by a fine of not less than but not more than double the amount of the check which fine shall in no case
exceed Two Hundred Thousand Pesos, or both such fine and imprisonment at the discretion of the
court.chanroblesllawlibrary

The same penalty shall be imposed upon any person who, having sufficient funds in or credit with the
drawee bank when he makes or draws and issues a check, shall fail to keep sufficient funds or to maintain
a credit to cover the full amount of the check if presented within a period of ninety (90) days from the date
appearing thereon, for which reason it is dishonored by the drawee bank.chanroblesllawlibrary

Where the check is drawn by a corporation, company or entity, the person or persons who actually signed
the check in behalf of such drawer shall be liable under this Act.

Accordingly, this Court has held that the elements of the crime are, as follows: (1) the making, drawing,
and issuance of any check to apply on account or for value; (2) the knowledge of the maker, drawer, or
issuer that at the time of issue he does not have sufficient funds in or credit with the drawee bank for the
payment of the check in full upon its presentment; and (3) the subsequent dishonor of the check by the
drawee bank for insufficiency of funds or credit, or dishonor for the same reason had not the drawer,
without any valid cause, ordered the bank to stop payment.[14]
In this case, the first and third elements of the crime have been adequately established. The prosecution,
however, failed to prove the second element. Because this element involves a state of mind which is
difficult to establish, Section 2 of B.P. Blg. 22 creates a presumption of knowledge of insufficiency of funds
under the following circumstances:[15]

Sec. 2. Evidence of knowledge of insufficient funds. -- The making, drawing, and issuance of a check
payment of which is refused by the drawee because of insufficient funds in or credit with such bank, when
presented within ninety days from the date of the check, shall be prima facieevidence of knowledge of
such insufficiency of funds or credit unless such maker or drawer pays the holder thereof the amount due
thereon, or makes arrangements for payment in full by the drawee of such check within five (5) banking
days after receiving notice that such check has not been paid by the drawee.

In Suarez v. People,[16] which is on all fours with the instant case, two Informations for violation of B.P.
Blg. 22 were filed against petitioner therein. After the prosecution presented its evidence, petitioner filed a
Demurrer to Evidence without leave of court on the ground that no notice of dishonor had been sent to
and received by him. When the case reached this Court, we acquitted petitioner on reasonable doubt as
there was insufficient proof that he received notice of dishonor. We explained
that:chanroblesvirtuallawlibrary

The presumption arises when it is proved that the issuer had received this notice, and that within five
banking days from its receipt, he failed to pay the amount of the check or to make arrangements for its
payment. The full payment of the amount appearing in the check within five banking days from notice of
dishonor is a complete defense. Accordingly, procedural due process requires that a notice of dishonor be
sent to and received by the petitioner to afford the opportunity to avert prosecution under B.P. Blg.
22.chanroblesllawlibrary

x x x. [I]t is not enough for the prosecution to prove that a notice of dishonor was sent to the petitioner. It is
also incumbent upon the prosecution to show "that the drawer of the check received the said notice
because the fact of service provided for in the law is reckoned from receipt of such notice of dishonor by
the drawee of the check.chanroblesllawlibrary

A review of the records shows that the prosecution did not prove that the petitioner received the notice of
dishonor. Registry return cards must be authenticated to serve as proof of receipt of letters sent through
registered mail.[17]

In this case, the prosecution merely presented a copy of the demand letter, together with the registry
receipt and the return card, allegedly sent to petitioner. However, there was no attempt to authenticate or
identify the signature on the registry return card.[18] Receipts for registered letters and return receipts do
not by themselves prove receipt; they must be properly authenticated to serve as proof of receipt of the
letter, claimed to be a notice of dishonor.[19] To be sure, the presentation of the registry card with an
unauthenticated signature, does not meet the required proof beyond reasonable doubt that petitioner
received such notice. It is not enough for the prosecution to prove that a notice of dishonor was sent to the
drawee of the check. The prosecution must also prove actual receipt of said notice, because the fact of
service provided for in the law is reckoned from receipt of such notice of dishonor by the drawee of the
check.[20] The burden of proving notice rests upon the party asserting its existence. Ordinarily,
preponderance of evidence is sufficient to prove notice. In criminal cases, however, the quantum of proof
required is proof beyond reasonable doubt. Hence, for B.P. Blg. 22 cases, there should be clear proof of
notice.[21] Moreover, for notice by mail, it must appear that the same was served on the addressee or a
duly authorized agent of the addressee. From the registry receipt alone, it is possible that petitioner or his
authorized agent did receive the demand letter.[22] Possibilities, however, cannot replace proof beyond
reasonable doubt.[23] The consistent rule is that penal statutes have to be construed strictly against the
State and liberally in favor of the accused.[24] The absence of a notice of dishonor necessarily deprives the
accused an opportunity to preclude a criminal prosecution.[25] As there is insufficient proof that petitioner
received the notice of dishonor, the presumption that he had knowledge of insufficiency of funds cannot
arise.[26]

This is so even if petitioner did not present his evidence to rebut the documentary evidence of the
prosecution as he had waived his right to present evidence for having filed a demurrer to evidence without
leave of court. We must emphasize that the prosecution has the burden of proving beyond reasonable
doubt each element of the crime as its case will rise or fall on the strength of its own evidence, never on
the weakness or even absence of that of the defense.[27] The failure of the prosecution to prove the receipt
by petitioner of the requisite notice of dishonor and that he was given at least five (5) banking days within
which to settle his account constitutes sufficient ground for his acquittal.[28]

Nonetheless, petitioner's acquittal for failure of the prosecution to prove all elements of the offense
beyond reasonable doubt does not include the extinguishment of his civil liability for the dishonored
checks.[29] In case of acquittal, the accused may still be adjudged civilly liable. The extinction of the penal
action does not carry with it the extinction of the civil action where (a) the acquittal is based on reasonable
doubt as only preponderance of evidence is required; (b) the court declares that the liability of the
accused is only civil; and (c) the civil liability of the accused does not arise from or is not based upon the
crime of which the accused was acquitted.[30] In a number of similar cases, we have held that an acquittal
based on reasonable doubt does not preclude the award of civil damages. [31

In view of the foregoing, we sustain the findings of the trial court, as affirmed by the CA, as to petitioner's
civil liability.chanroblesllawlibrar

Finally, in answer to petitioner's insistence that he should have been allowed by the trial court to present
his evidence on the civil aspect of the case, suffice it to state that when petitioner filed a demurrer to
evidence without leave of court, the whole case was submitted for judgment on the basis of the evidence
presented by the prosecution as the accused is deemed to have waived the right to present evidence. At
that juncture, the court is called upon to decide the case including its civil aspect. [32]

WHEREFORE, premises considered, the Court of Appeals Decision dated December 13, 2007 and
Resolution dated March 4, 2008 in CA-G.R. CEB-CR No. 00300 are MODIFIED. Petitioner Jaime Alferez
is ACQUITTEDon reasonable doubt of violation of B.P. Blg. 22. However, the civil liability imposed on
petitioner is AFFIRMED.

SO ORDERED.ch
PEOPLE OF THE PHILIPPINES, G.R. Nos. 154218 & 154372
Petitioner,- versus -
HON. JUDGE JOSE R. HERNANDEZ, in his capacity as Presiding Judge, Promulgated:
Br. 158, RTC-Pasig City, ATTY. LIGAYA P. SALAYON and ATTY. ANTONIO M. LLORENTE,
Respondents. August 28, 2006
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION

Before us is a Petition for Review on Certiorari under Rule 45 of the Rules of Court, seeking the reversal of the
Joint Decision[1] of the Court of Appeals (CA) in CA-G.R. SP Nos. 68922 and 69703 which affirmed the
Order[2] issued by respondent Judge Jose R. Hernandez, presiding judge of Branch 158 of the Regional Trial
Court (RTC) of Pasig City, dismissing Criminal Case Nos. 118823-31, 118848-91, 118902-9063 and 119099-
204 for violation of private respondents Llorente and Salayon's right to speedy trial.

First, the facts.

The instant case stemmed from a complaint filed by Aquilino Pimentel, Jr., a senatorial candidate in the May
1995 elections, against private respondents Salayon and Llorente, Chairman and Vice-Chairman, respectively,
of the City Board of Canvassers of Pasig City, and a certain Reynaldo San Juan, Campaign Manager of
senatorial candidate Juan Ponce Enrile, for allegedly decreasing Pimentel's votes in the Statement of Votes
per precinct and in the City Certificate of Canvass for Pasig City. Pimentel filed a petition with this Court,
docketed as G.R. No. 133509, which sought the reversal of the resolutions of the COMELEC dismissing his
complaint for lack of probable cause. On February 9, 2000, we promulgated our Decision in said case, granting
Pimentel's petition and ordering the COMELEC "to file forthwith with the proper [RTC] the necessary criminal
information for violation of Section 27(b) of [Republic Act] No. 6646, [3] otherwise known as the Electoral
Reforms Law of 1987, against private respondents Ligaya Salayon and Antonio Llorente."[4]

Pursuant thereto, the COMELEC filed a total of 321 informations for violation of Section 27(b) of R.A. No. 6646
against private respondents Llorente and Salayon on the following dates: a) nine (9) informations were filed on
August 28, 2000, docketed as Criminal Case Nos. 118823-118831; b) forty-four (44) informations on August
29, 2000, docketed as Criminal Case Nos. 118848-118891; c) one hundred sixty-two (162) informations on
August 31, 2000, docketed as Criminal Case Nos. 118902-119063; and d) 106 informations on September 7,
2000, docketed as Criminal Case Nos. 119099-119204. The four sets of informations were raffled to Branches
164, 158, 153 and 69, respectively, of the RTC of Pasig City.

Private respondent Llorente filed an Urgent Ex-Parte Motion for Consolidation[5] of Criminal Case Nos. 118823-
118831 (pending before Branch 164) with Criminal Case Nos. 118848-118891 (pending before Branch
158). This motion was granted by Branch 164,[6] thereby consolidating the nine (9) informations pending before
it with the 44 other informations pending with Branch 158.

Subsequently, private respondent Llorente filed three (3) Omnibus Motions before Branches 158, 153 and 69
of the RTC of Pasig City, asking them: 1) to consolidate all the cases filed against him for violation of Section
27(b) of R.A. No. 6646; 2) to declare the multiple informations filed against him as constituting only one
offense; 3) to treat the 321 informations filed against him as only one information for violation of Section 27(b)
of R.A. No. 6646; and 4) to allow him to post bail to only one information.

After finding private respondent Llorente's prayer to consolidate to be "meritorious and there being no
objection" from the prosecution, Judge Ericcio C. Ygaa of Branch 153 granted the same and remanded
Criminal Case Nos. 118902-119063 to the Office of the Clerk of Court of the RTC of Pasig City for proper
disposition.[7] Similarly, Judge Lorifel Lacap Pahimna of Branch 69 granted private respondent Llorente's
motion to consolidate, finding that "it is for the convenience of the parties that these cases (Criminal Case Nos.
119099-119204) be consolidated with those cases pending before Branch 158 considering that all cases
involved common questions of fact and law and the parties may have to introduce common evidence in
support of their respective positions in these cases." Judge Pahimna forwarded the cases pending before
Branch 69 to Branch 158 "unless the presiding judge of said branch interposes objection to such
consolidation." Moreover, the other issues raised by private respondent Llorente were referred to Branch 158
for appropriate action.[8]
On September 27, 2000, Senior State Prosecutor Rogelio Bagabuyo filed his Notice of Appearance with
Branch 158 of the RTC of Pasig City.[9] He likewise filed an Urgent Omnibus Motion To: 1) hold in abeyance
the implementation of the orders of the court prior to his appearance as counsel; 2) remand all the cases
pending before it to the Office of the Clerk of Court of the RTC of Pasig City; 3) hold in abeyance the resolution
of all motions filed by private respondent Llorente with the court; 4) order the Office of the Clerk of Court of the
RTC of Pasig City to hold in abeyance the re-raffling of all the "dagdag-bawas" cases against private
respondents; and 5) allow him ample time to secure from the Supreme Court a transfer of venue of the cases
from Pasig City to Manila or Pasay City.[10]

Private respondent Llorente filed an Opposition (to the Prosecution's Urgent Omnibus Motion dated 25
September 2000)[11] with Branch 158 of the RTC of Pasig City. On December 13, 2000, petitioner, through
Senior State Prosecutor Bagabuyo, filed with Branch 158 of the RTC of Pasig City its Comment/Opposition to
[the] Omnibus Motions filed by Accused Llorente,[12] reiterating its prayers in its Omnibus Motion
dated September 25, 2000.

On March 2, 2001, respondent Judge issued an Order, the dispositive portion which reads:

WHEREFORE, accused Llorente's Omnibus Motion dated September 5, 2000, Omnibus

Motion dated September 6, 2000 and Omnibus Motion dated September 8, 2000 are granted
allowing the consolidation of cases against accused Llorente pending before Branches 69, 153
and 164 of this Court with those pending before this branch. The multiple acts alleged in the
321 Informations filed against him are declared to constitute only one violation of Section 27(b)
of Republic Act No. 6646. There should then be only one information against accused
Llorente. This benefit applies also to accused Salayon. Public Prosecutor's (sic) Bagabuyo's
Omnibus Motion dated September 25, 2000is denied.

The arraignment and pre-trial of both accused is (sic) set on March 20, 2001 at 8:30 in the
morning.

SO ORDERED.[13]

The trial court noted that during the hearing on private respondent Llorente's motion on September 12, 2000,
the prosecution, then through Director Jose P. Balbuena of the COMELEC, was heard on the matter of
consolidation of the cases and in fact gave its consent thereto. Even the representative from the office of
Senator Aquilino Pimentel, Jr., an Atty. Luis Gana, did not register any objection thereto. In ruling that only one
information for violation of Section 27(b) of R.A. No. 6646 should have been filed, the trial court held:

[I]n this case[,] the unity of criminal intent is manifested by the fact that the several acts of
tampering[,] while allegedly done separately over a three-day period, were perpetuated on one
single occasion which is the canvassing of the votes cast in the May 8, 1995 elections in Pasig
City, and, significantly, perpetuated only on one single document, the SoV, a document of fifty-
eight (58) pages. While there maybe several acts of tampering, this Court could attribute only
one crime against accused Llorente.This is what the Comelec did in People vs. Maria Arsenia
Garcia, et al. docketed as Criminal Case No. 3485-A before the Regional Trial Court of
Alaminos, Pangasinan. The multiple acts of tampering by the accused were treated by the
COMELEC as one offense or a single count of (sic) the violation of Section 27(b) of R.A.
6646. There is no reason then why accused Llorente should be treated differently.[14]

On March 25, 2001, petitioner moved for the reconsideration of the March 2, 2001 Order of the trial
court.[15] Private respondent Llorente filed his Comment and Opposition,[16] to which petitioner filed its
rejoinder.[17]

In his Order[18] dated May 11, 2001, respondent Judge denied petitioner's motion for reconsideration of the
March 2, 2001 Order and set the arraignment and pre-trial of private respondents "on June 15, 2001 at 8:30 in
the morning."

On June 15, 2001, private respondents Llorente and Salayon were arraigned and pleaded "not guilty." Senior
State Prosecutor Bagabuyo was absent during the arraignment but the same nevertheless proceeded in the
presence of Public Prosecutor Jose Danilo C. Jabson, the assigned prosecutor in the trial court. The trial court
held:

Both accused, assisted by their respective counsels, after having been informed of the charge
filed against them and its attending consequences, entered a plea of NOT GUILTY.

Pursuant to the Order of March 2, 2001, the three hundred [twenty-one] (321) informations filed
against both accused were treated to be only a single offense for which they should be made
answerable. It is for this reason that both accused were arraigned and entered their plea to a
single or one information only.

Having entered their plea, set the pre-trial of this case on June 29, 2001 at 8:30 in the
morning.[19]

On June 27, 2001, petitioner filed an Omnibus Motion to Postpone and Motion for Reconsideration[20] of the
Order dated June 15, 2001 of the trial court, asking the trial court to nullify the arraignment of respondents for
lack of notice to the prosecution. The June 29, 2001 hearing was reset to July 6, 2001 in view of the
prosecution's filing of the Omnibus Motion to Postpone and Motion for Reconsideration. The July 6,
2001 hearing was cancelled as Senior State Prosecutor Bagabuyo did not appear, a representative having
telephoned the trial court that he was indisposed. The hearing was reset to July 26, 2001.[21] However, the
hearing on July 26, 2001 was again cancelled and reset to August 2, 2001 for Senior State Prosecutor
Bagabuyo's failure to appear, thus:

Since Prosecutor Rogelio Bagabuyo is again not available for today's hearing because he is
indisposed as relayed to this Court by his representative, Atty. Jay I. Dejaresco, and through a
telephone call from his secretary Orlando Nicolas, as prayed for, and over the vehement
objection of counsels for both accused, the pre-trial/trial scheduled today is cancelled and reset
on August 2, 2001 at 8:30 in the morning.
xxx
In the event that there will again be no appearance from Prosecutor Bagabuyo at the next
scheduled hearing, the Legal Department of the COMELEC shall then make its appearance
and take over the prosecution of this case.

SO ORDERED.[22]

After considering the respective positions of the prosecution and the private respondents, the trial court issued
its Order dated August 2, 2001[23] denying the prosecution's Omnibus Motion to Postpone and Motion for
Reconsideration. It found that contrary to the prosecution's claim that it was not notified of the arraignment
on June 15, 2001, the records revealed that the Order of the trial court dated May 11, 2001 which set the date
of the arraignment and pre-trial on June 15, 2001 was received by the Department of Justice on May 17, 2001.
As a consequence, the arraignment of private respondents Llorente and Salayon proceeded as scheduled.
The Motion for Reconsideration of the trial court's March 2, 2001 Order was likewise denied for being in the
nature of a second motion for reconsideration which is a prohibited pleading under the Rules of Court. Despite
the denial of the prosecution's motions, the pre-trial and trial were cancelled and reset to September 4, 2001 in
view of the prosecution's manifestation that it was appealing the trial court's order to a higher court. The court
warned that "[i]n the event that the prosecution shall not be able to get any restraining order to stop the
proceedings in this case, the hearing on said date shall proceed as scheduled."[24]
 Accordingly, petitioner, through Senior State Prosecutor Bagabuyo, filed a petition for Certiorari,
Prohibition, Mandamus, Injunction with Prayer for a Temporary Restraining Order with the CA, docketed as
CA-G.R. No. SP No. 65966. On August 16, 2001, said petition was dismissed outright for having been filed
without the participation of the Office of the Solicitor General (OSG), in violation of Section 35(1), Chapter 12,
Title III, Book IV of the 1987 Administrative Code.[25] Petitioner filed a Motion for Reconsideration, to no
avail.[26] Unhindered, petitioner filed a Motion for Extension of Time to File Petition for Reviewon
Certiorari[27] with this Court on October 30, 2001, pursuant to Section 2, Rule 45 of the Rules of Court. We
granted petitioner's motion in our Resolution dated December 12, 2001. Petitioner filed its Petition for Review
on January 10, 2002, docketed as G.R. No. 150317. We resolved to deny the petition on January 30, 2002 for
having been filed out of time and for Senior State Prosecutor Bagabuyo's failure to sign the
petition.[28] Petitioner again filed a Motion for Reconsideration with this Court, to no avail.[29]

Meantime, in the trial court, the hearing set on September 4, 2001 did not proceed due to Senior State
Prosecutor Bagabuyo's absence. Another representative from the office of Senator Pimentel, an Atty.
Galimpin, appeared in court and requested for a postponement. Again, the court received a call from the
secretary of Senior State Prosecutor Bagabuyo that the latter had his tooth extracted, hence, could not appear
in court. The trial court found this excuse quite odd since Atty. Galimpin informed the court that he saw Senior
State Prosecutor Bagabuyo at the Office of the Clerk of Court in the first floor of the same building where the
court sits. Private respondents moved for the dismissal of the instant cases due to the denial of their right to
speedy trial. The trial court denied their motion and gave the prosecution the last opportunity to prosecute the
instant cases, setting the next hearings on October 3 and 15, 2001, with the admonition that failure to proceed
will be dealt with accordingly.[30]

On October 3, 2001, the prosecution refused to proceed with pre-trial and trial, giving as reason its
pending petition before the CA. Private respondent Llorente reiterated his motion to dismiss the case on the
ground of violation of his right to speedy trial. The trial court granted private respondents a period of three (3)
days therefrom within which to formalize their motions to dismiss and the prosecution was also given three (3)
days from receipt of private respondents' motions within which to file its comment or objection. [31]

Private respondent Llorente filed his Motion to Dismiss dated October 4, 2001.[32] Before petitioner
could file an opposition, it filed its Motion to Inhibit[33] dated October 5, 2001, asking Judge Hernandez to
voluntarily inhibit himself from hearing the instant cases and remand the same to the Clerk of Court of Pasig
City for re-raffling. Later, the prosecution likewise filed its Opposition (to [Private Respondent's Motion to]
Dismiss with Prayer to Hold in Abeyance its Resolution until after Resolution of our Motion to Inhibit). Private
respondent Llorente filed his Reply (to Prosecution's Opposition dated October 7, 2001) and Comment-
Opposition (to Prosecution's Prayer for Inhibition). The prosecution filed its Rejoinder (to Reply to Opposition
to the Motion to Dismiss with Prayer to Hold in Abeyance its Resolution until after Resolution of our Motion to
Inhibit) and Counter-Comment (to the Opposition to Motion to Inhibit). Private respondent Salayon filed a
Manifestation dated October 6, 2001, adopting all the allegations mentioned in the Motion to Dismiss of his co-
respondent Llorente.On October 15, 2001, the parties opted not to have a hearing after having agreed to put
all their arguments in their respective pleadings.[34]

On November 23, 2001, the trial court rendered its assailed order, the dispositive portion of which
states:

WHEREFORE, the Motion to Dismiss dated October 4, 2001 filed by accused Antonio
M. Llorente, adopted by co-accused Ligaya P. Salayon, is granted and this case is
dismissed. The cash bail posted by each accused is ordered released to them.
 SO ORDERED.[35]

Petitioner, through Senior State Prosecutor Bagabuyo, then filed with

this Court a Petition for Certiorari, Prohibition and Mandamus[36] dated February 1, 2002 under Rule 65 of the
Rules of Court, docketed as G.R. Nos. 151461-151781. Petitioner prayed that:

1. Upon the filing hereof, this case be consolidated with [the] Petition for Review, filed
last January 10, 2002 [with the Supreme Court], and docketed as G.R. No. 150317;

2. The Order dismissing the instant cases be recalled, set aside and the 321 criminal cases
filed against both accused Salayon and Llorente be reinstated; after which they be arraigned
for the 321 counts for the violation of Section 27(b) of R.A. 6646;

3. The Order, dated June 15, 2001, be declared as null and void and set aside;

4. All the cases that used to be pending before the respondent, Honorable RTC-158 be ordered
remanded to the Office of the Clerk of Court for re-raffle to the other branches, except those
where these cases were originally assigned to; or in the alternative,

5. An Order be issued changing venue from the City of Pasig to either Manila, Pasay or Makati;
and,

6. Plaintiff-petitioner prays for such other relief consistent with law and equity on the matter. [37]

Pursuant to Section 6, Rule 56 of the Rules of Court, we referred said petition to the CA for appropriate
action.[38] In the CA, the case was docketed as CA-G.R. SP No. 69703.

Meantime, on February 2, 2001, petitioner, this time through the OSG, filed a Motion for Extension of
Time to File a petition for certiorari under Rule 65 directly with the CA, docketed as CA-G.R. SP No. 68922.
The motion having been granted,[39] petitioner, through the OSG, filed its petition[40] contending that
respondent Judge "committed grave abuse of discretion and/or acted without or in excess of jurisdiction in
issuing the order of dismissal dated November 23, 2001 allegedly on account of the speedy trial rule."[41]

Subsequently, CA-G.R. SP Nos. 69703 and 68922 were consolidated.[42]

On July 4, 2002, the CA rendered its assailed Joint Decision in CA-G.R. SP Nos. 69703 and 68922, the
dispositive portion of which states:

WHEREFORE, premises considered, the petitions in CA-G.R. SP No. 68922 and CA-G.R. SP
No. 69703 are hereby both DENIED DUE COURSE and accordingly DISMISSED, for lack of merit. The
assailed Order dated November 23, 2001 issued by Branch 158 of the Regional Trial Court of Pasig City
in Criminal Case Nos. 118823-31; 118848-91; 118902-9063; and 119099-204, all entitled People of the
Philippines v. Ligaya P. Salayon and Antonio M. Llorente, is hereby AFFIRMED and UPHELD.

No pronouncement as to costs.

SO ORDERED.[43]
The CA noted that as to CA-G.R. SP No. 69703, Senior State Prosecutor Bagabuyo filed an Urgent Motion to
Withdraw Petition dated April 21, 2002 with the Supreme Court despite our referral of the case to the CA. The
CA held that the petition instituted by Senior State Prosecutor Bagabuyo should be "effectively withdrawn" as
the same was filed without the participation of the OSG, in violation of Section 35(1), Chapter 12, Title III, Book
IV of the 1987 Administrative Code. At any rate, the CA likewise found no merit in the petition instituted by the
OSG. It held that petitioner was essentially assailing an error of judgment and not of jurisdiction, hence, its
resort to a special civil action for certiorari under Rule 65 of the Rules of Court instead of an ordinary appeal
was erroneous. Even assuming that petitioner's recourse was proper, the CA held that respondent Judge did
not act with grave abuse of discretion amounting to lack or excess of jurisdiction when he rendered his
assailed Order dated November 23, 2001. The ruling of the trial court was found to be supported by Sections 6
and 9 of the Revised Rules of Criminal Procedure, Sections 9 and 13 of R.A. No. 8493 and Sections 14(2) and
16, Article III of the 1987 Constitution. It restated the principle that "[t]he right to speedy trial means one free
from vexatious, capricious and oppressive delays, its salutary objective being to assure that an innocent
person may be freed from the anxiety and expense of a court litigation or, if otherwise, of having his guilt
determined within the shortest possible time compatible with the presentation and considerations of whatever
legitimate defense he may interpose."[44] The CA found that the cancellation of the hearings in the trial court by
the prosecution without any valid grounds was "certainly vexatious, capricious and oppressive." Citing People
v. Abao,[45] it held that "the dismissal of the cases following a number of postponements at the instance of the
prosecution is not an abuse of discretion." The CA likewise held that "delay resulting from extraordinary
remedies against interlocutory orders," as an exclusion to the computation of the 80-day period within which to
commence trial under Section 3(3), Rule 119 of the Rules of Court, should be read in harmony with Section 7
of Rule 65 of the Rules of Court. Hence, in the case at bar, the mere expedient of petitioner's filing before the
CA of a petition for certiorari, prohibition and mandamus under Rule 65 questioning the trial court's
interlocutory order did not interrupt the running of the 80-day period. Moreover, petitioner's reliance on Section
3(7) of Rule 119 is also misplaced as the trial court did not state in its orders granting continuance that the
ends of justice in granting the continuance outweigh the best interest of the public and the right of the accused
to a speedy trial.Finally, the CA pointed out that the prosecution failed to commence with the trial even after the
lapse of 122 days from the arraignment of private respondents.
Hence, the instant petition on certiorari under Rule 45 in which petitioner raises the following issues:

I. [WHETHER] THE COURT OF APPEALS ERRED ON A QUESTION OF LAW IN HOLDING

THAT THE WRIT OF CERTIORARI IS NOT WARRANTED INASMUCH AS WHAT IS BEING
IMPUGNED IS "AN ERROR OF JUDGMENT."

II. [WHETHER] THE COURT OF APPEALS ERRED ON A QUESTION OF LAW IN

UPHOLDING THE DISMISSAL OF THE 321 CRIMINAL CASES AGAINST PRIVATE
RESPONDENTS.[46]

The issues to be resolved are: a) whether a special civil action for certiorari under Rule 65 is the proper
remedy from the dismissal of the cases before the trial court on the ground of the denial of private
respondents' right to speedy trial; and b) whether the CA erred in finding that respondent Judge did not commit
grave abuse of discretion in dismissing the instant criminal cases against private respondents upon a finding
that the right of private respondents to speedy trial has been violated.

We shall first resolve the procedural issue.

Petitioner contends that its petition for certiorari under Rule 65 with the CA was the proper remedy since
respondent Judge committed grave abuse of discretion amounting to lack or excess of jurisdiction when he
consolidated the 321 criminal cases into one information and dismissed the "criminal case" on the ground of
the denial of private respondents' right to speedy trial, without giving the prosecution the chance to present
evidence. Citing People v. Velasco,[47] petitioner contends that the dismissal of the "criminal case" against
private respondents is tantamount to their acquittal which, as a general rule, the prosecution cannot appeal
from in the absence of a statute clearly conferring that right. In any case, the alleged existence of the remedy
of appeal does not always foreclose the remedy of a petition for certiorari under Rule 65.

Petitioner's remedy with the CA was correct.

Section 1, Rule 122 of the Revised Rules of Criminal Procedure provides that [a]ny party may appeal from a
judgment or final order, unless the accused will be placed in double jeopardy.
As a general rule, the prosecution cannot appeal or bring error proceedings from a judgment in favor of the
defendant in a criminal case in the absence of a statute clearly conferring that right. [48] Thus, errors of
judgment are not appealable by the prosecution. Appeal by the prosecution from the order of dismissal of the
criminal case by the trial court may be allowed only on errors of jurisdiction when there was denial of due
process resulting in loss or lack of jurisdiction.[49] This is so as while it is true that double jeopardy will attach in
case the prosecution appeals a decision acquitting the accused, an acquittal rendered in grave abuse of
discretion amounting to lack or excess of jurisdiction does not really "acquit" and therefore does not terminate
the case as there can be no double jeopardy based on a void indictment.[50]

In the case at bar, the trial court dismissed the cases against private respondents for the denial of their right to
speedy trial. In a long line of cases, we have held that a dismissal on the ground of the denial of the
accused's right to a speedy trial will have the effect of acquittal that would

bar further prosecution of the accused for the same offense. [51] Thus, we have held that where after such
dismissal the prosecution moved for the reconsideration of the order of dismissal and the court re-set the case
for trial, the accused can successfully claim double jeopardy as the said order was actually an acquittal, was
final and cannot be reconsidered.[52] Hence, petitioner was correct in filing a petition for certiorari under Rule
65, alleging that "respondent judge committed grave abuse of discretion and/or acted without or in excess of
jurisdiction in issuing the order of dismissal dated November 23, 2001 allegedly on account of the speedy trial
rule" as an appeal was not available to it. Where the dismissal of the case was allegedly capricious, certiorari
lies from such order of dismissal and does not involve double jeopardy, as the petition challenges not the
correctness but the validity of the order of dismissal and such grave abuse of discretion amounts to lack of
jurisdiction which prevents double jeopardy from attaching.[53]

Having settled that a petition for certiorari under Rule 65 with the CA was the proper remedy from the dismissal
of the instant cases by the trial court, the crucial issue is: was the CA correct in ruling that a writ of certiorari
was not warranted inasmuch as the respondent Judge did not act in grave abuse of discretion amounting to
lack or excess of jurisdiction in dismissing the instant cases against private respondents for the denial of their
right to speedy trial?

A writ of certiorari is warranted when 1) any tribunal, board or officer has acted without or in excess of its or his
jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction; and 2) there is no
appeal, nor any plain, speedy and adequate remedy in the ordinary course of law.[54] An act of a court or
tribunal may be considered as in grave abuse of discretion when the same was performed in a capricious or
whimsical exercise of judgment amounting to lack of jurisdiction. The abuse of discretion must be so patent
and gross as to amount to an evasion of a positive duty, or to a virtual refusal to perform a duty enjoined by
law, as where the power is exercised in an arbitrary and despotic manner because of passion or hostility. [55]
We affirm the CA's ruling that no such grave abuse of discretion was shown to exist in respondent Judge's
dismissal of the instant cases.

The right of the accused to a speedy trial is guaranteed under Sections 14(2) and 16, Article III of the 1987
Constitution.[56] In 1998, Congress enacted R.A. No. 8493, otherwise known as the "Speedy Trial Act of 1998."
The law provided for time limits in order "to ensure a speedy trial of all criminal cases before the
Sandiganbayan, [RTC], Metropolitan Trial Court, Municipal Trial Court, and Municipal Circuit Trial
Court." On August 11, 1998, the Supreme Court issued Circular No. 38-98, the Rules Implementing R.A. No.
8493. The provisions of said circular were adopted in the 2000 Revised Rules of Criminal Procedure. As to the
time limit within which trial must commence after arraignment, the 2000 Revised Rules of Criminal Procedure
states:

Sec. 6, Rule 119. Extended time limit.-- Notwithstanding the provisions of section 1(g), Rule
116 and the preceding section 1, for the first twelve-calendar-month period following its
effectivity on September 15, 1998, the time limit with respect to the period from
arraignment to trial imposed by said provision shall be one hundred eighty (180) days. For
the second twelve-month period, the time limit shall be one hundred twenty (120) days, and for
the third twelve-month period, the time limit shall beeighty (80) days.

R.A. No. 8493 and its implementing rules and the Revised Rules of Criminal Procedure enumerate
certain reasonable delays as exclusions in the computation of the prescribed time limits. They also provide that
"no provision of law on speedy trial and no rule implementing the same shall be interpreted as a bar to any
charge of denial of speedy trial as provided by Article III, Section 14(2), of the 1987 Constitution." [57] Thus, in
spite of the prescribed time limits, jurisprudence continues to adopt the view that the concept of "speedy trial"
is a relative term and must necessarily be a flexible concept.[58] In Corpuz v. Sandiganbayan,[59] we held:

The right of the accused to a speedy trial and to a speedy disposition of the case against
him was designed to prevent the oppression of the citizen by holding criminal prosecution
suspended over him for an indefinite time, and to prevent delays in the administration of justice by
mandating the courts to proceed with reasonable dispatch in the trial of criminal cases. Such right
to a speedy trial and a speedy disposition of a case is violated only when the proceeding is
attended by vexatious, capricious and oppressive delays. x x x

While justice is administered with dispatch, the essential ingredient is orderly, expeditious
and not mere speed. It cannot be definitely said how long is too long in a system where justice is
supposed to be swift, but deliberate. It is consistent with delays and depends upon
circumstances. It secures rights to the accused, but it does not preclude the rights of public
justice. Also, it must be borne in mind that the rights given to the accused by the Constitution and
the Rules of Court are shields, not weapons; hence, courts are to give meaning to that intent.

A balancing test of applying societal interests and the rights of the accused
necessarily compels the court to approach speedy trial cases on an ad hoc basis.
In determining whether the accused has been deprived of his right to a speedy
disposition of the case and to a speedy trial, four factors must be considered: (a) length of
delay; (b) the reason for the
delay; (c) the defendants assertion of his right; and (d) prejudice to the defendant. (citations
omitted)
 In the cases at bar, in finding that private respondents were denied of their right to speedy trial,
respondent Judge recounted the following incidents in the trial court:

The Court considers the accused['s] arraignment of June 15, 2001 and notes that the pre-trial was
initially set on June 29, 2001. This initial setting did not proceed, as earlier, the Prosecution, through
State Prosecutor Bagabuyo, filed an Omnibus Motion to Postpone and Motion for
Reconsideration. The Court, nevertheless, set the hearing to July 5, 2001 and gave proper notice to
the Prosecution. This July 6 setting also did not proceed as a staff of Prosecutor Bagabuyo made a
telephone call with this Court seeking for a postponement as Prosecutor Bagabuyo was not feeling
well. The Court issued its Order of July 6, 2001 setting the pre-trial again to July 26, 2001 at 8:30
a.m. The July 26 pre-trial hearing likewise did not proceed, as Prosecutor Bagabuyo was
indisposed. This matter was relayed to this Court in a telephone call of Orlando Nicolas, secretary of
Prosecutor Bagabuyo. During the hearing, Atty. Jay I. Dejaresco, a lawyer from the office of Senator
Aquilino Pimentel, appeared and confirmed the inability of Prosecutor Bagabuyo to appear during
the pre-trial hearing. The Court also requested Atty. Dejaresco to inform Senator Pimentel on the
delay caused by the non-appearance of the Prosecutor. The hearing was reset to August 2, 2001,
the date suggested by Atty. Dejaresco.

The August 2, 2001 hearing was held, but the Prosecution, through Prosecutor Bagabuyo,
manifested that it would question the Order of this Court dated June 15, 2001 and the Courts Order
on said date denying the Prosecutions Motion for Reconsideration to the Order of June 15, 2001. As
requested, the Court granted the Prosecution 30 days to file the proper petition before the higher
court, and the pre-trial and trial was reset anew to September 4, 2001. The Court [h]as impressed
with the commitment of the Prosecution that in the event no restraining order was issued to stop the
proceedings in this case, the pre-trial and trial shall proceed on September 4, 2001. But the hearing
of September 4, 2001 did not proceed on account of the absence of Prosecutor Bagabuyo. Another
representative from the office of Senator Pimentel, a certain Atty. Rolando Galimpin, appeared and
requested for another postponement. Like before, the Court received a call from the secretary of
Prosecutor Bagabuyo that the latter had his tooth extracted and would not be in a position to appear
at the hearing. This Court found the motion for postponement odd because Atty. Galimpin informed
the Court he saw Prosecutor Bagabuyo at the Office of the Clerk of Court, which is located at the
first floor of the building where this Court sits. Even then, the Court denied the accused['s] oral
motion to dismiss and gave the Prosecution the last opportunity to prosecute this case. The
Prosecution was given two dates, October 3 and 15, 2001, the dates Prosecutor Bagabuyo would be
available as represented by Atty. Galimpin. Despite these dates of October 3 and 15, 2001, the
Prosecution still failed to proceed to pre-trial and trial. Given the period of time to prosecute this case
as above narrated, the last opportunity on October 3 and 15, 2001, this Court resolves that this case
must now be dismissed. The accused[s] right to speedy trial under Section 9, Rule 116 (sic) of the
Revised Rules of Criminal Procedure has been violated.[60]

Clearly, the one hundred eleven (111) days that have elapsed from the time private respondents were
arraigned on June 15, 2001 up to the filing of the Motion to Dismiss by private respondents on the ground of
the denial of their right to speedy trial on October 4, 2001 is beyond the 80-day limit provided under the law
and the rules. The incidents that transpired before the trial court likewise show that the postponements at the
instance of the prosecution were not justified.As found by the CA:

The Court a quo has sufficiently justified its order of dismissal for failure to prosecute in
violation of the constitutional right of the accused to a speedy trial as mandated by Section
14(2) and Section 16 of Article III of the 1987 Constitution. The right to speedy trial means one
 free from vexatious, capricious and oppressive delays, its salutary objective being to assure
that an innocent person may be freed from the anxiety and expense of a court litigation or, if
otherwise, of having his guilt determined within the shortest possible time compatible with the
presentation and consideration of whatever legitimate defense he may interpose.[61]

xxx

The cancellation of the hearings by the prosecution without any valid ground is certainly
vexatious, capricious and oppressive and it has been held that the dismissal of the case
following a number of postponements at the instance of the prosecution is not an abuse of
discretion,[62] and especially taking into account the periods in Rule 119 which are explicitly
provided.[63]

Petitioner invokes the exclusions provided in Section 3(a)(3) and (f), Rule 119 of the 2000 Revised
Rules of Criminal Procedure which state:

Sec. 3. Exclusions.-- The following periods of delay shall be excluded in computing the
time within which trial must commence:

a) Any period of delay resulting from other proceedings concerning the accused,
including but not limited to the following:
xxx
3) Delay resulting from extraordinary remedies against
interlocutory orders;
xxx
f) Any period of delay resulting from a continuance granted by any
court motu proprio, or on motion of either the accused or his counsel, or the
prosecution, if the court granted the continuance on the basis of its findings
set forth in the order that the ends of justice served by taking such action
outweigh the best interest of the public and the accused in a speedy trial.

Petitioner contends that there was no inordinate delay on the part of the prosecution to justify a
dismissal of the cases based on a violation of the private respondents' right to speedy trial. The date of
arraignment was June 15, 2001. Senior State Prosecutor Bagabuyo filed a certiorari petition questioning the
arraignment before the CA on August 6, 2001. Thus, a total of 51 days elapsed before the filing of the CA
petition. On August 24, 2001, Senior State Prosecutor Bagabuyo received a copy of the CA Resolution
dismissing his petition. On September 6, 2001, he filed a motion for reconsideration of the CA Resolution. At
this point, only 64 days have passed since the arraignment. On October 17, 2001, Senior State
Prosecutor Bagabuyo received a copy of the CA Resolution denying his motion for
reconsideration. On October 30, 2001, he filed a motion for extension of time to file a petition under Rule 45
with this Court. Prior to his filing of this motion for extension, 76 days have lapsed from the date of
arraignment. This Court granted him 30 days within which to file the petition or until December 1, 2001. Hence,
when Judge Hernandez issued an Order of dismissal dated November 23, 2001, the 80-day period mandated
under Section 6 of Rule 119 has not yet lapsed. Deducting the time it took Judge Hernandez to resolve
petitioner's Omnibus Motion to Postpone and Motion for Reconsideration dated June 27, 2001, only 41 days
had lapsed after private respondents' arraignment on June 15, 2001. Section 3 of Rule 119 provides that
"delay resulting from extraordinary remedies against interlocutory orders" is excluded in computing the time
within which trial must commence. This provision is not in conflict with Section 3(f) of Rule 119 as they speak
of two different kinds of delay. If Section 3(f) is not applicable, Section 3(a) definitely is.
We are not persuaded. As correctly held by the CA, "delay resulting from extraordinary remedies against
interlocutory orders" must be read in harmony with Section 7, Rule 65 of the Rules of Court which provides
that the "[p]etition [under Rule 65] shall not interrupt the course of the principal case unless a temporary
restraining order or a writ of preliminary injunction has been issued against the public respondent
from further proceeding in the case." This was clearly spelled out by respondent Judge when, in addition to
granting a 30-day continuance in view of the manifestation of the prosecution that it would file an appeal from
the interlocutory order of the trial court with a higher court, the trial court, in its August 2, 2001 Order, gave a
warning that "[i]n the event that the prosecution shall not be able to get any restraining order to stop the
proceedings in this case, the hearing on [September 4, 2001] shall proceed as scheduled."Despite this
warning, however, Senior State Prosecutor Bagabuyo did not appear for the prosecution on the September 4,
2001 hearing set by the trial court and the court only received a call from the secretary of said Senior State
Prosecutor that the latter had his tooth extracted and would not be in a position to appear at the hearing. What
made the manner of postponement worse was that Atty. Galimpin, the private prosecutor, informed the trial
court that he saw Senior State Prosecutor Bagabuyo at the Office of the Clerk of Court, which is located at the
first floor of the same building where the trial court sits.

Petitioner's reliance on Section 3(f) of Rule 119 is also misplaced as nowhere in the Orders granting
continuance did respondent Judge set forth that his order was based on findings that the ends of justice
served by taking such action outweigh the best interest of the public and the accused in a speedy trial, as
required under the law and the Rules of Court. To the contrary, the successive continuances granted by the
trial court were compelled by the repeated absence of the public prosecutor or his refusal to proceed with the
pre-trial and trial. The orders of the court contained repeated warnings that "[i]n the event that there will again
be no appearance from Prosecutor Bagabuyo at the next scheduled hearing, the Legal Department of the
COMELEC shall then make its appearance and take over the prosecution of this case." In its September 4,
2001 Order denying private respondents' oral motions to dismiss and giving the prosecution another chance to
prosecute the cases by resetting the hearings to October 3 and 15, 2001, the trial court gave an admonition
that the prosecution's failure to appear will be dealt with accordingly. Even when Senior State Prosecutor
Bagabuyo appeared on October 3, 2001, the prosecution refused to proceed with the pre-trial and trial of the
cases on the ground of the pendency of its petition with the CA. This, despite the fact that as early as August
16, 2001, the CA has dismissed CA-G.R. No. SP. No. 65966 which raised the issue of the validity of the
private respondents' arraignment. As the trial court held:
The Court notes the petition for certiorari that Prosecutor Bagabuyo filed before the
Court of Appeals docketed as CA-GR SP No. 65966 questioning the propriety of [the] June 15,
2001 Order of this Court and the Honorable Court of Appeals dated August 16, 2001 dismissed
the petition outright. It also notes the resolution of the said Court dated October 9,
2001 denying the Prosecutions Motion for Reconsideration. Given these resolution, the
Prosecution had no option under the circumstances but to proceed to pre-trial and trial during
the October 15, 2001 hearing. All and still, the Prosecution stood on its ground not to prosecute
this case and would only have itself to blame for the dismissal of this case.[64]
Petitioner also contends in the instant petition that respondent Judge's decision declaring the 321
Informations against private respondents for violation of Section 27(b) of R.A. No. 6646 as only one
Information, the arraignment of the accused to only one information and his Decision dismissing the "case"
against private respondents give rise to the following questions: 1) Which one of the 321 Informations did
private respondents plead "not guilty" to? and 2) What case did Judge Hernandez dismiss when he stated that
"this case is dismissed"?
 The contention is unavailing. Contrary to petitioner's claim, a reading of the June 15, 2001 Order of the
trial court during arraignment leaves no room for vagueness. It states:
Pursuant to the Order of March 2, 2001, the three hundred [twenty-one] (321)
informations filed against both accused were treated to be only a single offense for which they
should be made answerable. It is for this reason that both accused were arraigned and entered
their plea to a single or one information only.[65]
What this argument reflects is petitioner's stubborn insistence not to recognize the trial court's
interlocutory Orders dated March 2, 2001 and June 15, 2001, granting private respondent Llorente's motion to
consider all the 321 informations filed against each of them as constituting only one offense and declaring the
arraignment of private respondents to only one information, respectively. Notably, petitioner's Motion for
Reconsideration of this Order on March 25, 2001 has been denied by the trial court and was denied again
when re-raised by petitioner with the trial court in its Omnibus Motion to Postpone and Motion for
Reconsideration on June 27, 2001. On appeal to the CA raising said issue, the CA dismissed the appeal for
the non-participation of the OSG and the CA likewise denied the motion for reconsideration it filed. Petitioner
filed a petition with this Court raising the same issue and was likewise denied on January 30, 2002 for having
been filed out of time. We likewise denied its Motion for Reconsideration on April 24, 2002. Hence petitioner
can no longer raise the same issue in this petition. In Zarate v. Director of Lands,[66] we held that:

A well-known legal principle is that when an appellate court has once declared the law
in a case, such declaration continues to be the law of that case even on a subsequent
appeal. The rule made by an appellate court, while it may be reversed in other cases, cannot
be departed from in subsequent proceedings in the same case. The Law of the Case, as
applied to a former decision of an appellate court, merely expresses the practice of the courts
in refusing to reopen what has been decided. Such a rule is "necessary to enable an appellate
court to perform its duties satisfactorily and efficiently, which would be impossible if a question,
once considered and decided by it, were to be litigated anew in the same case upon any and
every subsequent appeal." Again, the rule is necessary as a matter of policy in order to end
litigation. "There would be no end to a suit if every obstinate litigant could, by repeated
appeals, compel a court to listen to criticisms on their opinions, or speculate of chances from
changes in its members."

Petitioner's contention that the prosecution was clearly deprived of its day in court when it was not afforded the
right to be present during the private respondents' arraignment and to proceed to trial cannot stand
scrutiny. Again, the issue of the validity of the arraignment of the private respondents without the presence of
Senior State Prosecutor Bagabuyo has already been established with finality in the prosecution's previous
appeal with the CA in CA-G.R. SP. No. 65966 and with this Court in G.R. No. 150317 and, thus, constitutes the
law of the case between the parties. Petitioner cannot re-raise said issue in this petition. Moreover, petitioner's
failure to proceed to trial, as clearly shown by the events that transpired in the trial court, was due to its own
fault.

In order that a judgment or order of acquittal may be successfully challenged in a petition for certiorari
under Rule 65, the petitioner must prove that the trial court, in acquitting the accused, committed not merely
errors of judgment, but grave abuse of discretion amounting to lack or excess of jurisdiction. [67] No such grave
abuse of discretion can be attributed to respondent Judge in dismissing the instant cases for the denial of
private respondents' right to speedy trial.
 A last note. The first and the foremost state principle announced in our Constitution is that
the Philippines is a democratic and republican State. Sovereignty resides in the people and all government
authority emanates from them.[68] Our people express their mighty sovereignty mainly thru the election ballot
where they decide, free from any fetter, who will represent them in government. In a representative
government, the choice by the people of who will be their voice is nothing less than sacred, hence, its
desecration is unpardonable. Regrettably, the prosecutor failed in vindicating this constitutional principle whose
wisdom has not been diminished by the erosions of time. The lack of zealousness on the part of the
prosecution to prove that the senatorial elections held in May 1995 was marred by the condemnable practice
of dagdag-bawas which led to the dismissal of the criminal charges against the private respondents cannot but
be lamented. The inexplicable failure has left this Court no alternative except to affirm the dismissal of said
charges for the constitutional right of the accused to speedy trial cannot be held hostage by the disinterest and
mistakes of the prosecution in discharging its duty.

IN VIEW WHEREOF, the petition is denied. The Joint Decision dated July 4, 2002 of the Court of Appeals in
CA-G.R. SP Nos. 68922 and 69703 is affirmed.

JEFFREY RESO DAYAP, G.R. No. 177960

Petitioner,
- versus -
PRETZY-LOU SENDIONG,
GENESA SENDIONG, ELVIE Promulgated:
SY and DEXIE DURAN,
Respondents. January 29, 2009
x---------------------------------------------------------------------------x

DECISION

Before us is a petition for review[1] on certiorari of the Decision[2] dated 17 August 2006 and Resolution[3] dated
25 April 2007 by the Court of Appeals in CA-G.R. SP No. 01179 entitled, Pretzy-Lou P. Sendiong, Genesa R.
Sendiong, Elvie H. Sy and Dexie Duran v. Hon. Judge Cresencio Tan and Jeffrey Reso Dayap.

The case had its origins in the filing of an Information[4] on 29 December 2004 by the Provincial Prosecutors
Office, Sibulan, Negros Oriental, charging herein petitioner Jeffrey Reso Dayap with the crime of Reckless
Imprudence resulting to Homicide, Less Serious Physical Injuries, and Damage to Property. The pertinent
portion of the information reads:

That at about 11:55 oclock in the evening of 28 December 2004 at Brgy. Maslog,
Sibulan, Negros Oriental, Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, did then and there, willfully, unlawfully and feloniously drive in a
reckless and imprudent manner a 10-wheeler cargo truck with plate number ULP-955, color
blue, fully loaded with sacks of coconut shell, registered in the name of Ruben Villabeto of Sta.
Agueda Pamplona, Negros Oriental, thereby hitting an automobile, a Colt Galant with plate
number NLD-379 driven by Lou Gene R. Sendiong who was with two female passengers,
namely: Dexie Duran and Elvie Sy, thus causing the instantaneous death of said Lou Gene R.
Sendiong, less serious physical injuries on the bodies of Dexie Duran and Elvie Sy and
extensive damage to the above-mentioned Colt Galant which is registered in the name of
 Cristina P. Weyer of 115 Dr. V. Locsin St., Dumaguete City, to the damage of the heirs of the
same Lou Gene R. Sendiong and the other two offended parties above-mentioned.

An act defined and penalized by Article 365 of the Revised Penal Code.

On 10 January 2005, before the Municipal Trial Court (MTC) of Sibulan, Negros Oriental, petitioner was
arraigned and he pleaded not guilty to the charge.[5]

On 17 January 2005, respondents Pretzy-Lou P. Sendiong, Genesa Sendiong and Dexie Duran filed a motion
for leave of court to file an amended information.[6]They sought to add the allegation of abandonment of the
victims by petitioner, thus: The driver of the 10-wheeler cargo truck abandoned the victims, at a time when said
[Lou-Gene] R. Sendiong was still alive inside the car; he was only extracted from the car by the by-standers.[7]

On 21 January 2005, however, the Provincial Prosecutor filed an Omnibus Motion praying that the motion to
amend the information be considered withdrawn.[8]On 21 January 2003, the MTC granted the withdrawal and
the motion to amend was considered withdrawn.[9]

Pre-trial and trial of the case proceeded. Respondents testified for the prosecution. After the prosecution had
rested its case, petitioner sought leave to file a demurrer to evidence which was granted. Petitioner filed his
Demurrer to Evidence[10] dated 15 April 2005 grounded on the prosecutions failure to prove beyond reasonable
doubt that he is criminally liable for reckless imprudence, to which respondents filed a Comment [11] dated 25
April 2005.

In the Order[12] dated 16 May 2005, the MTC granted the demurrer and acquitted petitioner of the crime
of reckless imprudence. The MTC found that the evidence presented by respondents failed to establish the
allegations in the Information. Pertinent portions of the order state:

An examination of the allegations in the information and comparing the same with the
evidence presented by the prosecution would reveal that the evidence presented has not
established said allegations. The facts and circumstances constituting the allegations charged
have not been proven. It is elementary in the rules of evidence that a party must prove his own
affirmative allegations.
xxxx

Nowhere in the evidence of the prosecution can this Court find that it was the accused who
committed the crime as charged. Its witnesses have never identified the accused as the one
who has committed the crime. The prosecution never bothered to establish if indeed it was the
accused who committed the crime or asked questions which would have proved the elements
of the crime. The prosecution did not even establish if indeed it was the accused who was
driving the truck at the time of the incident. The Court simply cannot find any evidence which
would prove that a crime has been committed and that the accused is the person responsible
for it. There was no evidence on the allegation of the death of Lou Gene R. Sendiong as there
was no death certificate that was offered in evidence. The alleged less serious physical
injuries on the bodies of Dexie Duran and Elvie Sy were not also proven as no medical
certificate was presented to state the same nor was a doctor presented to establish such
 injuries. The alleged damage to the [C]olt [G]alant was also not established in any manner as
no witness ever testified on this aspect and no documentary evidence was also presented to
state the damage. The prosecution therefore failed to establish if indeed it was the accused
who was responsible for the death of Lou Gene R. Sendiong and the injuries to Dexie Duran
and Elvie Sy, including the damage to the Colt Galant. The mother of the victim testified only
on the expenses she incurred and the shock she and her family have suffered as a result of
the incident. But sad to say, she could not also pinpoint if it was the accused who committed
the crime and be held responsible for it. This Court could only say that the prosecution has
practically bungled this case from its inception.

xxxx

The defense furthermore argued that on the contrary, the prosecutions [evidence]
conclusively show that the swerving of vehicle 1 [the Colt Galant] to the lane of vehicle 2 [the
cargo truck] is the proximate cause of the accident. The court again is inclined to agree with
this argument of the defense. It has looked carefully into the sketch of the accident as
indicated in the police blotter and can only conclude that the logical explanation of the accident
is that vehicle 1 swerved into the lane of vehicle 2, thus hitting the latters inner fender and
tires. Exhibit 7 which is a picture of vehicle 2 shows the extent of its damage which was the
effect of vehicle 1s ramming into the rear left portion of vehicle 2 causing the differential guide
of vehicle 2 to be cut, its tires busted and pulled out together with their axle. The cutting of the
differential guide cause[d] the entire housing connecting the tires to the truck body to collapse,
thus causing vehicle 2 to tilt to its left side and swerve towards the lane of vehicle 1. It was this
accident that caused the swerving, not of [sic] any negligent act of the accused.

xxxx

Every criminal conviction requires of the prosecution to prove two thingsthe fact of the
crime, i.e., the presence of all the elements of the crime for which the accused stands
charged, and the fact that the accused is the perpetrator of the crime. Sad to say, the
prosecution has miserably failed to prove these two things. When the prosecution fails to
discharge its burden of establishing the guilt of the accused, an accused need not even offer
evidence in his behalf.

xxxx

WHEREFORE, premises considered, the demurrer is granted and the accused JEFFREY
RESO DAYAP is hereby acquitted for insufficiency of evidence. The bail bond posted for his
temporary liberty is also hereby cancelled and ordered released to the accused or his duly
authorized representative.

SO ORDERED.[13]

Respondents thereafter filed a petition for certiorari under Rule 65,[14] alleging that the MTCs dismissal
of the case was done without considering the evidence adduced by the prosecution. Respondents added that
the MTC failed to observe the manner the trial of the case should proceed as provided in Sec. 11, Rule 119 of
the Rules of Court as well as failed to rule on the civil liability of the accused in spite of the evidence
presented. The case was raffled to the Regional Trial Court (RTC) of Negros Oriental, Br. 32.

In the order[15] dated 23 August 2005, the RTC affirmed the acquittal of petitioner but ordered the
remand of the case to the MTC for further proceedings on the civil aspect of the case. The RTC ruled that the
MTCs recital of every fact in arriving at its conclusions disproved the allegation that it failed to consider the
evidence presented by the prosecution. The records also demonstrated that the MTC conducted the trial of the
case in the manner dictated by Sec. 11, Rule 119 of the Rules of Court, except that the defense no longer
presented its evidence after the MTC gave due course to the accuseds demurrer to evidence, the filing of
which is allowed under Sec. 23, Rule 119. The RTC however agreed that the MTC failed to rule on the
accuseds civil liability, especially since the judgment of acquittal did not include a declaration that the facts
from which the civil liability might arise did not exist. Thus, the RTC declared that the aspect of civil liability was
not passed upon and resolved to remand the issue to the MTC. The dispositive portion of the decision states:

WHEREFORE, the questioned order of the Municipal Trial Court of Sibulan on

accuseds acquittal is AFFIRMED. The case is REMANDED to the court of origin or its
successor for further proceedings on the civil aspect of the case. No costs.

SO ORDERED.[16]

Both parties filed their motions for reconsideration of the RTC order, but these were denied for lack of
merit in the order[17] dated 12 September 2005.

Respondents then filed a petition for review with the Court of Appeals under Rule 42, docketed as CA-G.R. SP.
No. 01179. The appellate court subsequently rendered the assailed decision and resolution. The Court of
Appeals ruled that there being no proof of the total value of the properties damaged, the criminal case falls
under the jurisdiction of the RTC and the proceedings before the MTC are null and void. In so ruling, the
appellate court cited Tulor v. Garcia (correct title of the case is Cuyos v. Garcia)[18] which ruled that in complex
crimes involving reckless imprudence resulting in homicide or physical injuries and damage to property, the
jurisdiction of the court to take cognizance of the case is determined by the fine imposable for the damage to
property resulting from the reckless imprudence, not by the corresponding penalty for the physical injuries
charged. It also found support in Sec. 36 of the Judiciary Reorganization Act of 1980 and the 1991 Rule 8 on
Summary Procedure, which govern the summary procedure in first-level courts in offenses involving damage to
property through criminal negligence where the imposable fine does not exceed P10,000.00. As there was no
proof of the total value of the property damaged and respondents were claiming the amount of P1,500,000.00
as civil damages, the case falls within the RTCs jurisdiction.The dispositive portion of the Decision dated 17
August 2006 reads:

WHEREFORE, premises considered, judgment is hereby rendered by Us REMANDING the

case to the Regional Trial Court (RTC), Judicial Region, Branch 32, Negros Oriental for proper
disposition of the merits of the case.

SO ORDERED.[19]

Petitioner moved for reconsideration of the Court of Appeals decision,[20] arguing that jurisdiction over the case
is determined by the allegations in the information, and that neither the 1991 Rule on Summary Procedure nor
Sec. 36 of the Judiciary Reorganization Act of 1980 can be the basis of the RTCs jurisdiction over the
case. However, the Court of Appeals denied the motion for reconsideration for lack of merit in the Resolution
dated 25 April 2007.[21] It reiterated that it is the RTC that has proper jurisdiction considering that the
information alleged a willful, unlawful, felonious killing as well as abandonment of the victims.

In the present petition for review, petitioner argues that the MTC had jurisdiction to hear the criminal case for
reckless imprudence, owing to the enactment of Republic Act (R.A.) No. 7691, [22] which confers jurisdiction to
first-level courts on offenses involving damage to property through criminal negligence. He asserts that the
RTC could not have acquired jurisdiction on the basis of a legally unfiled and officially withdrawn amended
information alleging abandonment.Respondents are also faulted for challenging the MTCs order acquitting
petitioner through a special civil action for certiorari under Rule 65 in lieu of an ordinary appeal under Rule 42.

The petition has merit. It should be granted.

The first issue is whether the Court of Appeals erred in ruling that jurisdiction over the offense charged
pertained to the RTC.

Both the MTC and the RTC proceeded with the case on the basis of the Information dated 29
December 2004 charging petitioner only with the complex crime of reckless imprudence resulting to homicide,
less serious physical injuries and damage to property. The Court of Appeals however declared in its decision
that petitioner should have been charged with the same offense but aggravated by the circumstance of
abandonment of the victims. It appears from the records however that respondents attempt to amend the
information by charging the aggravated offense was unsuccessful as the MTC had approved the Provincial
Prosecutors motion to withdraw their motion to amend the information. The information filed before the trial
court had remained unamended.[23] Thus, petitioner is deemed to have been charged only with the offense
alleged in the original Information without any aggravating circumstance.

Article 365 of the Revised Penal Code punishes any person who, by reckless imprudence, commits any act
which, had it been intentional, would constitute a grave felony, with the penalty of arresto mayor in its
maximum period to prision correccional in its medium period. When such reckless imprudence the use of a
motor vehicle, resulting in the death of a person attended the same article imposes upon the defendant the
penalty of prision correccional in its medium and maximum periods.

The offense with which petitioner was charged is reckless imprudence resulting in homicide, less
serious physical injuries and damage to property, a complex crime. Where a reckless, imprudent, or negligent
act results in two or more grave or less grave felonies, a complex crime is committed. [24] Article 48 of the
Revised Penal Code provides that when the single act constitutes two or more grave or less grave felonies, or
when an offense is a necessary means for committing the other, the penalty for the most serious crime shall be
imposed, the same to be applied in its maximum period. Since Article 48 speaks of felonies, it is applicable to
crimes through negligence in view of the definition of felonies in Article 3 as acts or omissions punishable by
law committed either by means of deceit (dolo) or fault (culpa).[25] Thus, the penalty imposable upon petitioner,
were he to be found guilty, is prision correccional in its medium period (2 years, 4 months and 1 day to 4 years)
and maximum period (4 years, 2 months and 1 day to 6 years).

Applicable as well is the familiar rule that the jurisdiction of the court to hear and decide a case is
conferred by the law in force at the time of the institution of the action, unless such statute provides for a
retroactive application thereof.[26] When this case was filed on 29 December 2004, Section 32(2) of Batas
Pambansa Bilang 129 had already been amended by R.A. No. 7691. R.A. No. 7691 extended the jurisdiction
of the first-level courts over criminal cases to include all offenses punishable with imprisonment not exceeding
six (6) years irrespective of the amount of fine, and regardless of other imposable accessory or other penalties
including those for civil liability. It explicitly states that in offenses involving damage to property
through criminal negligence, they shall have exclusive original
jurisdiction thereof. It follows that criminal cases for reckless
imprudence punishable with prision correccional in its medium and maximum periods should fall within the
jurisdiction of the MTC and not the RTC. Clearly, therefore, jurisdiction to hear and try the same pertained to
the MTC and the RTC did not have original jurisdiction over the criminal case. [27] Consequently, the MTC of
Sibulan, Negros Oriental had properly taken cognizance of the case and the proceedings before it were valid
and legal.

As the records show, the MTC granted petitioners demurrer to evidence and acquitted him of the
offense on the ground of insufficiency of evidence. The demurrer to evidence in criminal cases, such as the
one at bar, is filed after the prosecution had rested its case, and when the same is granted, it calls for an
appreciation of the evidence adduced by the prosecution and its sufficiency to warrant conviction beyond
reasonable doubt, resulting in a dismissal of the case on the merits, tantamount to an acquittal of the
accused.[28] Such dismissal of a criminal case by the grant of demurrer to evidence may not be appealed, for to
do so would be to place the accused in double jeopardy.[29] But while the dismissal order consequent to a
demurrer to evidence is not subject to appeal, the same is still reviewable but only by certiorari under Rule 65
of the Rules of Court. Thus, in such case, the factual findings of the trial court are conclusive upon the
reviewing court, and the only legal basis to reverse and set aside the order of dismissal upon demurrer to
evidence is by a clear showing that the trial court, in acquitting the accused, committed grave abuse of
discretion amounting to lack or excess of jurisdiction or a denial of due process, thus rendering the assailed
judgment void.[30]

Accordingly, respondents filed before the RTC the petition for certiorari alleging that the MTC gravely
abused its discretion in dismissing the case and failing to consider the evidence of the prosecution in resolving
the same, and in allegedly failing to follow the proper procedure as mandated by the Rules of Court.The RTC
correctly ruled that the MTC did not abuse its discretion in dismissing the criminal complaint. The MTCs
conclusions were based on facts diligently recited in the order thereby disproving that the MTC failed to
consider the evidence presented by the prosecution. The records also show that the MTC correctly followed
the procedure set forth in the Rules of Court.

The second issue is whether the Court of Appeals erred in ordering the remand of the case of the
matter of civil liability for the reception of evidence.

We disagree with the Court of Appeals on directing the remand of the case to the RTC for further
proceedings on the civil aspect, as well as with the RTC in directing a similar remand to the MTC.

The acquittal of the accused does not automatically preclude a judgment against him on the civil aspect
of the case. The extinction of the penal action does not carry with it the extinction of the civil liability where: (a)
the acquittal is based on reasonable doubt as only preponderance of evidence is required; (b) the court
declares that the liability of the accused is only civil; and (c) the civil liability of the accused does not arise from
or is not based upon the crime of which the accused is acquitted. [31] However, the civil action based on delict
may be deemed extinguished if there is a finding on the final judgment in the criminal action that the act or
omission from which the civil liability may arise did not exist [32] or where the accused did not commit the acts or
omission imputed to him.[33]
 Thus, if demurrer is granted and the accused is acquitted by the court, the accused has the right to
adduce evidence on the civil aspect of the case unless the court also declares that the act or omission from
which the civil liability may arise did not exist.[34] This is because when the accused files a demurrer to
evidence, he has not yet adduced evidence both on the criminal and civil aspects of the case. The only
evidence on record is the evidence for the prosecution. What the trial court should do is issue an order or
partial judgment granting the demurrer to evidence and acquitting the accused, and set the case for
continuation of trial for the accused to adduce evidence on the civil aspect of the case and for the private
complainant to adduce evidence by way of rebuttal. Thereafter, the court shall render judgment on the civil
aspect of the case.[35]

A scrutiny of the MTCs decision supports the conclusion that the acquittal was based on the findings
that the act or omission from which the civil liability may arise did not exist and that petitioner did not commit
the acts or omission imputed to him; hence, petitioners civil liability has been extinguished by his acquittal. It
should be noted that the MTC categorically stated that it cannot find any evidence which would prove that a
crime had been committed and that accused was the person responsible for it. It added that the prosecution
failed to establish that it was petitioner who committed the crime as charged since its witnesses never
identified petitioner as the one who was driving the cargo truck at the time of the incident. Furthermore, the
MTC found that the proximate cause of the accident is the damage to the rear portion of the truck caused by
the swerving of the Colt Galant into the rear left portion of the cargo truck and not the reckless driving of the
truck by petitioner, clearly establishing that petitioner is not guilty of reckless imprudence. Consequently, there
is no more need to remand the case to the trial court for proceedings on the civil aspect of the case, since
petitioners acquittal has extinguished his civil liability.

WHEREFORE, the petition is GRANTED. The Court of Appeals Decision dated 17 August 2006 and
Resolution dated 25 April 2007 in CA-G.R. SP. No. 01179 are REVERSED and SET ASIDE. The Order
dated 16 May 2005 of the Municipal Trial Court of Sibulan, Negros Oriental in Criminal Case No. 3016-04
granting the Demurrer to Evidence and acquitting petitioner Jeffrey Reso Dayap of the offense charged therein
is REINSTATED and AFFIRMED.

SO ORDERED.
[G.R. No. 151931. September 23, 2003] ANAMER SALAZAR, petitioner, vs. THE PEOPLE OF THE
PHILIPPINES and J.Y. BROTHERS MARKETING CORPORATION, respondents.

DECISION

This is a petition for review on certiorari under Rule 45 of the 1997 Rules of Criminal Procedure of the
Order[1] of the Regional Trial Court, 5th Judicial Region, Legazpi City, Branch 5,[2] dated November 19, 2001,
and its Order[3] dated January 14, 2002 denying the motion for reconsideration of the decision of the said court
on the civil aspect thereof and to allow her to present evidence thereon.
On June 11, 1997, an Information for estafa was filed against herein petitioner Anamer D. Salazar and co-
accused Nena Jaucian Timario with the Regional Trial Court of Legazpi City, docketed as Criminal Case No.
7474 which reads as follows:

That sometime in the month of October, 1996, in the City of Legazpi, Philippines, and within the jurisdiction of
this Honorable Court, the above named-accused, conspiring and confederating with each other, with intent to
defraud by means of false pretenses or fraudulent acts executed simultaneously with the commission of the
fraud, did then and there wilfully, unlawfully and feloniously, on the part of accused NENA JAUCIAN TIMARIO,
drew and issue[d] PRUDENTIAL BANK, LEGASPI CITY BRANCH CHECK NO. 067481, dated October 15,
1996, in the amount of P214,000.00 in favor of J.Y. BROTHERS MARKETING CORPORATION, represented
by its Branch Manager, JERSON O. YAO, and accused ANAMER D. SALAZAR endorsed and negotiated said
check as payment of 300 cavans of rice obtained from J.Y. BROTHERS MARKETING CORPORATION,
knowing fully well that at that time said check was issued and endorsed, Nena Jaucian Timario did not have
sufficient funds in or credit with the drawee bank to cover the amount called for therein and without informing
the payee of such circumstance; that when said check was presented to the drawee bank for payment, the
same was consequently dishonored and refused payment for the reason of ACCOUNT CLOSED; that despite
demands, accused failed and refused and still fail and refuse to pay and/or make arrangement for the payment
of the said check, to the damage and prejudice of said J.Y. BROTHERS MARKETING CORPORATION.

CONTRARY TO LAW.[4]

Upon arraignment, the petitioner, assisted by counsel, entered a plea of not guilty. Trial thereafter ensued.

The Evidence of the Prosecution

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

WHEREFORE, premises considered, the accused Anamer D. Salazar is hereby ACQUITTED of the crime
charged but is hereby held liable for the value of the 300 bags of rice. Accused Anamer D. Salazar is therefore
ordered to pay J.Y. Brothers Marketing Corporation the sum of P214,000.00. Costs against the accused.[6]

Within the reglementary period therefor, the petitioner filed a motion for reconsideration on the civil aspect
of the decision with a plea that he be allowed to present evidence pursuant to Rule 33 of the Rules of
Court. On January 14, 2002, the court issued an order denying the motion.
In her petition at bar, the petitioner assails the orders of the trial court claiming that after her demurrer to
evidence was granted by the trial court, she was denied due process as she was not given the opportunity to
adduce evidence to prove that she was not civilly liable to the private respondent. The petitioner invokes the
applicability of Rule 33 of the Rules of Civil Procedure in this case, contending that before being adjudged
liable to the private offended party, she should have been first accorded the procedural relief granted in Rule
33.

The Petition Is Meritorious

According to Section 1, Rule 111 of the Revised Rules of Criminal Procedure

SECTION 1. Institution of criminal and civil actions. (a) When a criminal action is instituted, the civil action for
the recovery of civil liability arising from the offense charged shall be deemed instituted with the criminal action
unless the offended party waives the civil action, reserves the right to institute it separately or institutes the civil
action prior to the criminal action.
The reservation of the right to institute separately the civil action shall be made before the prosecution starts
presenting its evidence and under circumstances affording the offended party a reasonable opportunity to
make such reservation.

When the offended party seeks to enforce civil liability against the accused by way of moral, nominal,
temperate, or exemplary damages without specifying the amount thereof in the complaint or information, the
filing fees therefor shall constitute a first lien on the judgment awarding such damages.

Where the amount of damages, other than actual, is specified in the complaint or information, the
corresponding filing fees shall be paid by the offended party upon the filing thereof in court.

Except as otherwise provided in these Rules, no filing fees shall be required for actual damages.

No counterclaim, cross-claim or third-party complaint may be filed by the accused in the criminal case, but any
cause of action which could have been the subject thereof may be litigated in a separate civil action.

(b) The criminal action for violation of Batas Pambansa Blg. 22 shall be deemed to include the corresponding
civil action. No reservation to file such civil action separately shall be allowed.

Upon filing of the aforesaid joint criminal and civil actions, the offended party shall pay in full the filing fees
based on the amount of the check involved, which shall be considered as the actual damages claimed. Where
the complaint or information also seeks to recover liquidated, moral, nominal, temperate or exemplary
damages, the offended party shall pay additional filing fees based on the amounts alleged therein. If the
amounts are not so alleged but any of these damages are subsequently awarded by the court, the filing fees
based on the amount awarded shall constitute a first lien on the judgment.

Where the civil action has been filed separately and trial thereof has not yet commenced, it may be
consolidated with the criminal action upon application with the court trying the latter case.If the application is
granted, the trial of both actions shall proceed in accordance with section 2 of this Rule governing
consolidation of the civil and criminal actions.

The last paragraph of Section 2 of the said rule provides that the extinction of the penal action does not carry
with it the extinction of the civil action. Moreover, the civil action based on delict shall be deemed extinguished
if there is a finding in a final judgment in the criminal action that the act or omission from which the civil liability
may arise did not exist.[7]
The criminal action has a dual purpose, namely, the punishment of the offender and indemnity to the
offended party. The dominant and primordial objective of the criminal action is the punishment of the
offender. The civil action is merely incidental to and consequent to the conviction of the accused. The reason
for this is that criminal actions are primarily intended to vindicate an outrage against the sovereignty of the
state and to impose the appropriate penalty for the vindication of the disturbance to the social order caused by
the offender. On the other hand, the action between the private complainant and the accused is intended solely
to indemnify the former.[8]
Unless the offended party waives the civil action or reserves the right to institute it separately or institutes
the civil action prior to the criminal action, there are two actions involved in a criminal case. The first is the
criminal action for the punishment of the offender. The parties are the People of the Philippines as the plaintiff
and the accused. In a criminal action, the private complainant is merely a witness for the State on the criminal
aspect of the action. The second is the civil action arising from the delict. The private complainant is the
plaintiff and the accused is the defendant. There is a merger of the trial of the two cases to avoid multiplicity of
suits.
The quantum of evidence on the criminal aspect of the case is proof beyond reasonable doubt, while in
the civil aspect of the action, the quantum of evidence is preponderance of evidence.[9] Under Section 3, Rule 1
of the 1997 Rules of Criminal Procedure, the said rules shall govern the procedure to be observed in action,
civil or criminal.
The prosecution presents its evidence not only to prove the guilt of the accused beyond reasonable doubt
but also to prove the civil liability of the accused to the offended party. After the prosecution has rested its
case, the accused shall adduce its evidence not only on the criminal but also on the civil aspect of the case. At
the conclusion of the trial, the court should render judgment not only on the criminal aspect of the case but also
on the civil aspect thereof:

SEC. 2. Contents of the judgment. If the judgment is of conviction, it shall state (1) the legal qualification of the
offense constituted by the acts committed by the accused and the aggravating or mitigating circumstances
which attended its commission; (2) the participation of the accused in the offense, whether as principal,
accomplice, or accessory after the fact; (3) the penalty imposed upon the accused; and (4) the civil liability or
damages caused by his wrongful act or omission to be recovered from the accused by the offended party, if
there is any, unless the enforcement of the civil liability by a separate civil action has been reserved or waived.

In case the judgment is of acquittal, it shall state whether the evidence of the prosecution absolutely failed to
prove the guilt of the accused or merely failed to prove his guilt beyond reasonable doubt. In either case, the
judgment shall determine if the act or omission from which the civil liability might arise did not exist.[10]

The acquittal of the accused does not prevent a judgment against him on the civil aspect of the case
where (a) the acquittal is based on reasonable doubt as only preponderance of evidence is required; (b) where
the court declared that the liability of the accused is only civil; (c) where the civil liability of the accused does
not arise from or is not based upon the crime of which the accused was acquitted. Moreover, the civil action
based on the delict is extinguished if there is a finding in the final judgment in the criminal action that the act or
omission from which the civil liability may arise did not exist or where the accused did not commit the acts or
omission imputed to him.
If the accused is acquitted on reasonable doubt but the court renders judgment on the civil aspect of the
criminal case, the prosecution cannot appeal from the judgment of acquittal as it would place the accused in
double jeopardy. However, the aggrieved party, the offended party or the accused or both may appeal from the
judgment on the civil aspect of the case within the period therefor.
After the prosecution has rested its case, the accused has the option either to (a) file a demurrer to
evidence with or without leave of court under Section 23, Rule 119 of the Revised Rules of Criminal Procedure,
or to (b) adduce his evidence unless he waives the same. The aforecited rule reads:

Sec. 23. Demurrer to evidence. After the prosecution rests its case, the court may dismiss the action on the
ground of insufficiency of evidence (1) on its own initiative after giving the prosecution the opportunity to be
heard or (2) upon demurrer to evidence filed by the accused with or without leave of court.

If the court denies the demurrer to evidence filed with leave of court, the accused may adduce evidence in his
defense. When the demurrer to evidence is filed without leave of court, the accused waives his right to present
evidence and submits the case for judgment on the basis of the evidence for the prosecution.
The motion for leave of court to file demurrer to evidence shall specifically state its grounds and shall be filed
within a non-extendible period of five (5) days after the prosecution rests its case. The prosecution may oppose
the motion within a non-extendible period of five (5) days from its receipt.

If leave of court is granted, the accused shall file the demurrer to evidence within a non-extendible period of ten
(10) days from notice. The prosecution may oppose the demurrer to evidence within a similar period from its
receipt.

The order denying the motion for leave of court to file demurrer to evidence or the demurrer itself shall not be
reviewable by appeal or by certiorari before the judgment.

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

Section 14, paragraphs (1) and (2), of Article III, of the Constitution provides the fundamentals.

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

(2) In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and shall
enjoy the right to be heard by himself and counsel, to be informed of the nature and cause of the accusation
against him, to have a speedy, impartial, and public trial, to meet the witnesses face to face, and to have
compulsory process to secure the attendance of witnesses and the production of evidence in his
behalf. However, after arraignment, trial may proceed notwithstanding the absence of the accused provided
that he has been duly notified and his failure to appear is unjustifiable.

Jurisprudence acknowledges that due process in criminal proceedings, in particular, require (a) that the court
or tribunal trying the case is properly clothed with judicial power to hear and determine the matter before it; (b)
that jurisdiction is lawfully acquired by it over the person of the accused; (c) that the accused is given an
opportunity to be heard; and (d) that judgment is rendered only upon lawful hearing.

The above constitutional and jurisprudentially postulates, by now elementary and deeply imbedded in our own
criminal justice system, are mandatory and indispensable. The principles find universal acceptance and are
tersely expressed in the oft-quoted statement that procedural due process cannot possibly be met without a
law which hears before it condemns, which proceeds upon inquiry and renders judgment only after trial.[12]

This is so because when the accused files a demurrer to evidence, the accused has not yet adduced
evidence both on the criminal and civil aspects of the case. The only evidence on record is the evidence for the
prosecution. What the trial court should do is to issue an order or partial judgment granting the demurrer to
evidence and acquitting the accused; and set the case for continuation of trial for the petitioner to adduce
evidence on the civil aspect of the case, and for the private complainant to adduce evidence by way of rebuttal
after which the parties may adduce their sur-rebuttal evidence as provided for in Section 11, Rule 119 of the
Revised Rules of Criminal Procedure:

Sec. 11. Order of trial. The trial shall proceed in the following order:

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

(b) The accused may present evidence to prove his defense and damages, if any, arising from the issuance of
a provisional remedy in the case.

(c) The prosecution and the defense may, in that order, present rebuttal and sur-rebuttal evidence unless the
court, in furtherance of justice, permits them to present additional evidence bearing upon the main issue.

(d) Upon admission of the evidence of the parties, the case shall be deemed submitted for decision unless the
court directs them to argue orally or to submit written memoranda.

(e) When the accused admits the act or omission charged in the complaint or information but interposes a
lawful defense, the order of trial may be modified.

Thereafter, the court shall render judgment on the civil aspect of the case on the basis of the evidence of
the prosecution and the accused.
In this case, the petitioner was charged with estafa under Article 315, paragraph 2(d) of the Revised Penal
Code. The civil action arising from the delict was impliedly instituted since there was no waiver by the private
offended party of the civil liability nor a reservation of the civil action. Neither did he file a civil action before the
institution of the criminal action.
The petitioner was granted leave of court to file a demurrer to evidence. The court issued an order
granting the demurrer on its finding that the liability of the petitioner was not criminal but only civil. However,
the court rendered judgment on the civil aspect of the case and ordered the petitioner to pay for her purchases
from the private complainant even before the petitioner could adduce evidence thereon. Patently, therefore, the
petitioner was denied her right to due process.
IN LIGHT OF ALL THE FOREGOING, the Petition is GRANTED. The Orders dated November 19,
2001 and January 14, 2002 are SET ASIDE AND NULLIFIED. The Regional Trial Court of Legazpi City,
Branch 5, is hereby DIRECTED to set Criminal Case No. 7474 for the continuation of trial for the reception of
the evidence-in-chief of the petitioner on the civil aspect of the case and for the rebuttal evidence of the private
complainant and the sur-rebuttal evidence of the parties if they opt to adduce any.
SO ORDERED.
MANGUERA VS RISOS
x------------------------------------------------------------------------------------x

This is a petition for review on certiorari under Rule 45 of the Rules of Court, assailing the Court of
Appeals (CA) Decision[1] dated August 15, 2001 and its Resolution[2] dated March 12, 2002. The CA decision
set aside the Regional Trial Court (RTC) Orders dated August 25, 2000[3] granting Concepcion Cuenco Vda.
de Manguerras (Concepcions) motion to take deposition, and dated November 3, 2000[4] denying the motion
for reconsideration of respondents.

The facts of the case, as culled from the records, follow:

On November 4, 1999, respondents were charged with Estafa Through Falsification of Public
Document before the RTC of Cebu City, Branch 19, through a criminal information dated October 27, 1999,
which was subsequently amended on November 18, 1999. The case, docketed as Criminal Case No. CBU-
52248,[5]arose from the falsification of a deed of real estate mortgage allegedly committed by respondents
where they made it appear that Concepcion, the owner of the mortgaged property known as the Gorordo
property, affixed her signature to the document. Hence, the criminal case.[6]

Earlier, on September 10, 1999, Concepcion, who was a resident of Cebu City, while on vacation in
Manila, was unexpectedly confined at the Makati Medical Center due to upper gastro-intestinal bleeding; and
was advised to stay in Manila for further treatment.[7]

On November 24, 1999, respondents filed a Motion for Suspension of the Proceedings in Criminal
Case No. CBU-52248 on the ground of prejudicial question. They argued that Civil Case No. CEB-20359,
which was an action for declaration of nullity of the mortgage, should first be resolved.[8] On May 11, 2000, the
RTC granted the aforesaid motion. Concepcions motion for reconsideration was denied on June 5, 2000.[9]

This prompted Concepcion to institute a special civil action for certiorari before the CA seeking the
nullification of the May 11 and June 5 RTC orders. The case was docketed as CA-G.R. SP No. 60266 and
remains pending before the appellate court to date.[10]

On August 16, 2000, the counsel of Concepcion filed a motion to take the latters deposition.[11] He
explained the need to perpetuate Concepcions testimony due to her weak physical condition and old age,
which limited her freedom of mobility.

On August 25, 2000, the RTC granted the motion and directed that Concepcions deposition be taken
before the Clerk of Court of Makati City.[12] The respondents motion for reconsideration was denied by the trial
court on November 3, 2000. The court ratiocinated that procedural technicalities should be brushed aside
because of the urgency of the situation, since Concepcion was already of advanced age.[13] After several
motions for change of venue of the deposition-taking, Concepcions deposition was finally taken on March 9,
2001 at her residence.[14]

Aggrieved, respondents assailed the August 25 and November 3 RTC orders in a special civil action
for certiorari before the CA in CA-G.R. SP No. 62551.[15]

On August 15, 2001, the CA rendered a Decision[16] favorable to the respondents, the dispositive
portion of which reads: WHEREFORE, the petition is GRANTED and the August 25, 2000 and November 3,
2000 orders of the court a quo are hereby SET ASIDE, and any deposition that may have been taken on the
authority of such void orders is similarly declared void. SO ORDERED.[17]
 At the outset, the CA observed that there was a defect in the respondents petition by not
impleading the People of the Philippines, an indispensable party.This notwithstanding, the appellate
court resolved the matter on its merit, declaring that the examination of prosecution witnesses, as in the
present case, is governed by Section 15, Rule 119 of the Revised Rules of Criminal Procedure and not
Rule 23 of the Rules of Court. The latter provision, said the appellate court, only applies to civil
cases. Pursuant to the specific provision of Section 15, Rule 119, Concepcions deposition should have
been taken before the judge or the court where the case is pending, which is the RTC of Cebu, and not
before the Clerk of Court of Makati City; and thus, in issuing the assailed order, the RTC clearly
committed grave abuse of discretion. [18]

In its Resolution dated March 12, 2002 denying petitioners motion for reconsideration, the CA added that the
rationale of the Rules in requiring the taking of deposition before the same court is the constitutional right of the
accused to meet the witnesses face to face. The appellate court likewise concluded that Rule 23 could not be
applied suppletorily because the situation was adequately addressed by a specific provision of the rules of
criminal procedure.[19]

Hence, the instant petition raising the following issues:

I. WHETHER OR NOT RULE 23 OF THE 1997 RULES OF CIVIL PROCEDURE APPLIES TO

THE DEPOSITION OF PETITIONER.

II. WHETHER OR NOT FAILURE TO IMPLEAD THE PEOPLE OF THE PHILIPPINES IN A

PETITION FOR CERTIORARI ARISING FROM A CRIMINAL CASE A QUO CONSTITUTES A
WAIVABLE DEFECT IN THE PETITION FOR CERTIORARI.[20]

It is undisputed that in their petition for certiorari before the CA, respondents failed to implead the People of
the Philippines as a party thereto. Because of this, the petition was obviously defective. As provided in Section 5, Rule
110 of the Revised Rules of Criminal Procedure, all criminal actions are prosecuted under the direction and control of the
public prosecutor. Therefore, it behooved the petitioners (respondents herein) to implead the People of the Philippines as
respondent in the CA case to enable the Solicitor General to comment on the petition. [21]

However, this Court has repeatedly declared that the failure to implead an indispensable party is not a ground for the
dismissal of an action. In such a case, the remedy is to implead the non-party claimed to be indispensable. Parties may
be added by order of the court, on motion of the party or on its own initiative at any stage of the action and/or such times
as are just. If the petitioner/plaintiff refuses to implead an indispensable party despite the order of the court, the latter may
dismiss the complaint/petition for the petitioners/plaintiffs failure to comply. [22]

In this case, the CA disregarded the procedural flaw by allowing the petition to proceed, in the interest of substantial
justice. Also noteworthy is that, notwithstanding the non-joinder of the People of the Philippines as party-respondent, it
managed, through the Office of the Solicitor General, to file its Comment on the petition for certiorari. Thus, the People
was given the opportunity to refute the respondents arguments.

Instructive is the Courts pronouncement in Commissioner Domingo v. Scheer[23] in this wise:

There is nothing sacred about processes or pleadings, their forms or contents. Their sole purpose is to
facilitate the application of justice to the rival claims of contending parties. They were created, not to
hinder and delay, but to facilitate and promote, the administration of justice. They do not constitute the
thing itself, which courts are always striving to secure to litigants. They are designed as the means best
adapted to obtain that thing. In other words, they are a means to an end. When they lose the character of
the one and become the other, the administration of justice is at fault and courts are correspondingly
remiss in the performance of their obvious duty.[24]
Accordingly, the CA cannot be faulted for deciding the case on the merits despite the procedural defect.

On the more important issue of whether Rule 23 of the RoC applies to the instant case, we rule in the negative.

It is basic that all witnesses shall give their testimonies at the trial of the case in the presence of the judge.[25] This is
especially true in criminal cases in order that the accused may be afforded the opportunity to cross-examine the witnesses
pursuant to his constitutional right to confront the witnesses face to face. [26] It also gives the parties and their counsel the
chance to propound such questions as they deem material and necessary to support their position or to test the credibility
of said witnesses.[27] Lastly, this rule enables the judge to observe the witnesses demeanor.[28]

This rule, however, is not absolute. As exceptions, Rules 23 to 28 of the Rules of Court provide for the different modes of
discovery that may be resorted to by a party to an action. These rules are adopted either to perpetuate the testimonies of
witnesses or as modes of discovery. In criminal proceedings, Sections 12,[29]13[30] and 15,[31] Rule 119 of the Revised
Rules of Criminal Procedure, which took effect on December 1, 2000, allow the conditional examination of both the
defense and prosecution witnesses.

In the case at bench, in issue is the examination of a prosecution witness, who, according to the petitioners,
was too sick to travel and appear before the trial court.Section 15 of Rule 119 thus comes into play, and it
provides:

Section 15. Examination of witness for the prosecution. When it satisfactorily appears that a
witness for the prosecution is too sick or infirm to appear at the trial as directed by the court, or
has to leave the Philippines with no definite date of returning, he may forthwith be conditionally
examined before the court where the case is pending. Such examination, in the presence of the
accused, or in his absence after reasonable notice to attend the examination has been served
on him, shall be conducted in the same manner as an examination at the trial. Failure or refusal
of the accused to attend the examination after notice shall be considered a waiver. The
statement taken may be admitted in behalf of or against the accused.

Petitioners contend that Concepcions advanced age and health condition exempt her from the application of
Section 15, Rule 119 of the Rules of Criminal Procedure, and thus, calls for the application of Rule 23 of the
Rules of Civil Procedure.

The contention does not persuade.

The very reason offered by the petitioners to exempt Concepcion from the coverage of Rule 119 is at once the
ground which places her squarely within the coverage of the same provision. Rule 119 specifically states that a
witness may be conditionally examined: 1) if the witness is too sick or infirm to appear at the trial; or 2) if the
witness has to leave the Philippines with no definite date of returning. Thus, when Concepcion moved that her
deposition be taken, had she not been too sick at that time, her motion would have been denied. Instead of
conditionally examining her outside the trial court, she would have been compelled to appear before the court
for examination during the trial proper.
Undoubtedly, the procedure set forth in Rule 119 applies to the case at bar. It is thus required that the
conditional examination be made before the court where the case is pending. It is also necessary that the
accused be notified, so that he can attend the examination, subject to his right to waive the same after
reasonable notice. As to the manner of examination, the Rules mandate that it be conducted in the same
manner as an examination during trial, that is, through question and answer.

At this point, a query may thus be posed: in granting Concepcions motion and in actually taking her deposition,
were the above rules complied with? The CA answered in the negative. The appellate court considered the
taking of deposition before the Clerk of Court of Makati City erroneous and contrary to the clear mandate of
the Rules that the same be made before the court where the case is pending. Accordingly, said the CA, the
RTC order was issued with grave abuse of discretion.

We agree with the CA and quote with approval its ratiocination in this wise:

Unlike an examination of a defense witness which, pursuant to Section 5, Rule 119 of the
previous Rules, and now Section 13, Rule 119 of the present Revised Rules of Criminal
Procedure, may be taken before any judge, or, if not practicable, a member of the Bar in good
standing so designated by the judge in the order, or, if the order be made by a court of superior
jurisdiction, before an inferior court to be designated therein, the examination of a witness for
the prosecution under Section 15 of the Revised Rules of Criminal Procedure (December 1,
2000) may be done only before the court where the case is pending.[32]

Rule 119 categorically states that the conditional examination of a prosecution witness shall be made
before the court where the case is pending. Contrary to petitioners contention, there is nothing in the rule which
may remotely be interpreted to mean that such requirement applies only to cases where the witness is within
the jurisdiction of said court and not when he is kilometers away, as in the present case. Therefore, the court
may not introduce exceptions or conditions.Neither may it engraft into the law (or the Rules) qualifications not
contemplated.[33] When the words are clear and categorical, there is no room for interpretation. There is only
room for application.[34]

Petitioners further insist that Rule 23 applies to the instant case, because the rules on civil procedure apply
suppletorily to criminal cases.

It is true that Section 3, Rule 1 of the Rules of Court provides that the rules of civil procedure apply to all
actions, civil or criminal, and special proceedings. In effect, it says that the rules of civil procedure have
suppletory application to criminal cases. However, it is likewise true that the criminal proceedings are primarily
governed by the Revised Rules of Criminal Procedure. Considering that Rule 119 adequately and squarely
covers the situation in the instant case, we find no cogent reason to apply Rule 23 suppletorily or otherwise.

To reiterate, the conditional examination of a prosecution witness for the purpose of taking his deposition
should be made before the court, or at least before the judge, where the case is pending. Such is the clear
mandate of Section 15, Rule 119 of the Rules. We find no necessity to depart from, or to relax, this rule. As
correctly held by the CA, if the deposition is made elsewhere, the accused may not be able to attend, as when
he is under detention. More importantly, this requirement ensures that the judge would be able to observe the
witness deportment to enable him to properly assess his credibility. This is especially true when the witness
testimony is crucial to the prosecutions case.

While we recognize the prosecutions right to preserve its witness testimony to prove its case, we cannot
disregard rules which are designed mainly for the protection of the accuseds constitutional rights. The giving of
testimony during trial is the general rule. The conditional examination of a witness outside of the trial is only an
exception, and as such, calls for a strict construction of the rules.

WHEREFORE, the petition is hereby DENIED. The Court of Appeals Decision and Resolution dated August
25, 2000 and March 12, 2002, respectively, in CA-G.R. SP No. 62551, are AFFIRMED.

SO ORDERED.
PEOPLE OF THE PHILIPPINES, G.R. No. 171655
Appellee, Present:
- versus
PABLO L. ESTACIO, JR. and
MARITESS ANG,
Appellants.

x-------------------------------------------------x
DECISION

Appellant Maritess Ang (Maritess) was charged before the Regional Trial Court (RTC) of Quezon
City with kidnapping for ransom, allegedly committed as follows:

That on or about the 10th of October 1995, in Quezon City, Philippines, the above-
named accused conspiring together, confederating with two (2) other persons whose true
names, identities and whereabouts have not as yet been ascertained and mutually helping
one another did then and there, willfully, unlawfully and
feloniously kidnap one CHARLIE CHUA, a businessman, from the Casa Leonisa Bar located
at Examiner Street, Quezon City and brought him to an unknown place and detained him up
to the present for the purpose of extorting ransom money in the amount of P15,000,000.00,
Philippine Currency, thereby depriving him of his liberty from October 10, 1995 up to the
present, to the damage and prejudice of said offended party.[1]

The Information was subsequently amended to implead the other appellant, Pablo Estacio, Jr. (Estacio),
and to change the charge from kidnapping for ransom to kidnapping with murder. The accusatory portion of
the Amended Information reads:

That on or about the 11th day of October, 1995, in Quezon City, Philippipnes, the
above-named accused, conspiring, confederating with another person whose true name and
identity has not as yet been ascertained and mutually helping one another, did then and
there, willfully, unlawfully and feloniously kidnap one CHARLIE MANCILLAN CHUA, a
businessman, with the use of motor vehicle from Casa Leonisa Bar located at Examiner
Street, Quezon City and brought him to BRGY. STO. CRISTO, San Jose, del Monte,
Bulacan and thereafter with intent to kill, qualified by evident premeditation, did, then and
there, willfully, unlawfully and feloniously repeatedly stab said CHARLIE MANCILLAN CHUA
on the different parts of his body with the use of [a] fan knife, thereby inflicting upon him
serious and mortal wounds, which were the direct and immediate cause of his death, to the
damage and prejudice of the heirs of said Charlie Mancillan Chua.[2] (Underscoring in the
original.)

Still later, the Information was further amended to additionally implead one Hildo Sumipo
(Sumipo)[3] who was, however, subsequently discharged as state witness.[4]

The evidence for the prosecution presents the following version of events:[5]

At around 10:00 in the evening of October 10, 1995, Maritess, together with Estacio and Sumipo, arrived
at Casa Leonisa, a bar-restaurant at Examiner Street, Quezon City where the three of them would meet with
Charlie Mancilla Chua (the victim). Maritess had earlier told Sumipo that she would settle her debt to the victim
and then deretsong dukot na rin x x x kay Charlie [the victim].[6] Sumipo assumed, however, that Maritess was
just joking.

After the victim arrived past midnight and talked to Maritess for a short while, the group boarded his car,
Maritess taking the seat beside the victim who was driving, as Estacio and Sumipo took the backseat.

Not long after, Estacio pulled out a gun and ordered the victim to pull the car over. As the victim
complied, Estacio, with a gun pointed at him, pulled him to the backseat as Maritess transferred to the
backseat, sat beside the victim, tied the victims hands behind his back, and placed tape on his mouth. Estacio
then directed Sumipo to take over the wheels as he did.[7]

While Sumipo tried to dissuade appellants from pursuing their plan, they replied that they would kill the
victim so that he would not take revenge.[8]Thereupon, the victim told Maritess, bakit mo nagawa sa akin
ito sa kabila ng lahat?, to which she replied, Bayad na ako sa utang ko sa iyo ngayon.

On Estacios instruction, Sumipo drove towards San Jose del Monte, Bulacan and on reaching a
secluded place, Estacio ordered Sumipo to stop the car as he did. Maritess and Estacio then brought the victim
to a grassy place. Estacio with bloodied hands later resurfaced.

The three then headed towards Malinta, Valenzuela, Bulacan. On the way, Estacio and Maritess talked
about how they killed the victim, Estacio telling Maritess, Honey, wala na tayong problema dahil siguradong
patay na si Charlie sa dami ng saksak na nakuha niya.

On Estacios and Maritess directive, Sumipo stopped by a drug store where Maritess bought alcohol to
clean their hands. Along the way, Maritess and Estacio threw out the victims attach case. Maritess later told
Estacio Honey, sana hindi muna natin pinatay si Charlie para makahingi pa tayo ng pera sa mga magulang nya

The three later abandoned the car in Malinta.

The following morning, Estacio went to the residence of Sumipo where he called up by telephone the
victims mother and demanded a P15,000,000 ransom.The mother replied, however, that she could not afford
that amount.

In the afternoon of the same day, Maritess and Estacio went to Sumipos residence again where Estacio
again called up the victims mother, this time lowering the ransom demand to P10,000,000 which she still found
to be too steep. Sumipo expressed his misgivings about future calls, as they might get caught, but Estacio and
Maritess assured him that that call would be the last.

The group then went to Greenhills where Estacio still again called up the victims mother, still lowering
the ransom demand to P5,000,000, P1,000,000 of which should be advanced. The victims mother having
agreed to the demand, Maritess and Estacio directed her to place the money in a garbage can near Pizza Hut
in Greenhills at 11:30 in the evening. Estacio and Sumipo later proceeded to Pizza Hut, and as they were
seated there, a patrol car passed by, drawing them to leave and part ways.

Sumipo soon learned that Maritess and Estacio sold Chuas gun, watch, and necklace from the proceeds
of which he was given P7,000.
 On May 16, 1996, Sumipo surrendered to the National Bureau of Investigation. On May 23, 1996,
Estacio surrendered to the police. The police then informed the victims mother that Estacio had admitted having
killed her son, and that he offered to accompany them to the crime scene.

The police, accompanied by the victims mother and Estacio, went to the crime scene and recovered the
remains of the victim who was identified by his mother by the clothes attached to his bones. The victims dentist
found his teeth to match his dental record.

Sumipo explained in an affidavit,[9] which he identified in open court,[10] that Maritess got angry with the
victim after he lent money to her husband, one Robert Ong, [11] enabling him to leave the country without her
knowledge, while Estacio was jealous of the victim with whom Maritess had a relationship.[12]

In his affidavit[13] which he identified in open court, Estacio claimed that a quarrel broke out in the car
between the victim and Maritess about a debt to the victim; that he tried to pacify the two, but the victim got
angry at him, prompting him to point a fan knife at his neck; and that he then asked Sumipo to drive the car up
to Barangay Sto. Cristo, San Jose del Monte, Bulacan where he dragged the victim away from the car and
accidentally stabbed him.

When asked on cross-examination why the stabbing was accidental, Estacio replied that he and
Maritess originally planned to leave the victim in Bulacan, but since there was talk of the victim getting back at
them, he got confused and so it happened.[14]

Maritess for her part denied[15] having conspired with Estacio. She claimed that while on board the car,
the victim took issue with her friendship with Estacio, whom he insulted. Incensed, Estacio grabbed the victim
by the collar, prompting the victim to pull out a gun from under the drivers seat which he aimed at Estacio.

Continuing, Maritess claimed that she tried to pacify the quarreling men; that the car stopped at San
Jose del Monte and the three men alighted; that Sumipo returned to the car and was later followed by Estacio
who said Masama raw ang nangyari,[16] he adding that he did not intend to stab the victim.

Branch 219 of the Quezon City RTC found both Estacio and Maritess guilty of kidnapping on the
occasion of which the victim was killed, disposing as follows:

WHEREFORE, finding accused Pablo Estacio, Jr. and Maritess Ang guilty beyond
reasonable doubt of the crime of kidnapping on the occasion of which the victim was killed,
the court hereby sentences each of them to suffer the maximum penalty of Death; to jointly
and severally pay the heirs of Charlie Chua the amount of P200,000.00, as actual damages,
and P1,000,000.00, as moral damages; and to pay the costs.

SO ORDERED.[17] (Emphasis and underscoring supplied)

The case was forwarded to this Court for automatic review.[18] However, the Court referred it to the Court
of Appeals for intermediate review following People v. Mateo.[19]

Estacio faulted the trial court for:

I x x x FINDING THAT THE GUILT OF HEREIN ACCUSED-APPELLANT FOR THE

CRIME CHARGED WAS PROVEN BEYOND REASONABLE DOUBT.
 II x x x CONVICTING HEREIN ACCUSED-APPELLANT OF THE CRIME
CHARGED DESPITE FAILURE OF THE PROSECUTION TO PROVE THE
INDISPENSABLE ELEMENTS OF DETENTION AND LOCK UP.[20] (Emphasis and
underscoring supplied)

As for Maritess, she faulted the trial court for:

A. x x x Discharging Sumipo as State Witness and in Relying on His Testimony for

the Conviction of Appellant Ang.[21]
xxx
B. x x x Finding That There was Kidnapping with Murder and That Appellant Ang is
Guilty Thereof.
C. x x x Not Concluding that the Crime Committed was Plain Homicide, and That
Accused Estacio is Solely Responsible Therefor.[22] (Emphasis and underscoring in
the original)

By Decision[23] of May 12, 2005, the Court of Appeals affirmed, with modification, the trial courts
decision, disposing as follows:

WHEREFORE, in view of all the foregoing, the decision of the Regional Trial Court of
Quezon City in Criminal Case No. Q-95-63818 finding accused-appellants Maritess Ang and
Pablo Estacio, Jr. guilty beyond reasonable doubt of the crime of kidnapping with murder and
sentencing them to each suffer the penalty of DEATH, is AFFIRMED with
MODIFICATION. Accused-appellants are ordered to pay, jointly and severally, the heirs of
the deceased the amounts of P50,000.00 as civil indemnity; P25,000.00 as exemplary
damages and P500,000.00 as moral damages.

In view of the death penalty imposed, let the entire records of this case be forwarded
to the Honorable Supreme Court for further review.

SO ORDERED.[24] (Emphasis and underscoring supplied)

Appellants manifested before this Court that supplemental pleadings would not be necessary, all
relevant matters having already been taken up.[25]

Findings of fact of the trial court, its calibration of the testimonies of witnesses, and its assessment of the
probative weight thereof, as well as its conclusions anchored on said findings are accorded high respect, if not
conclusive effect, by this Court because of the trial courts unique advantage in observing and monitoring at
close range the demeanor, deportment, and conduct of the witnesses as they testify.[26] This Court need not
thus pass upon the findings of fact of the trial court, especially if they have been affirmed on appeal by the
appellate court, as in the present case.[27] Nevertheless, the Court combed through the records of the case and
found no ground to merit a reversal of appellants conviction.

The Court finds, however, that the offense of which appellants were convicted was erroneously
designated.

Appellants were eventually charged with and convicted of the special complex crime of kidnapping with
murder, defined in the last paragraph of Article 267 of the Revised Penal Code. In a special complex crime, the
prosecution must prove each of the component offenses with the same precision that would be necessary if
they were made the subject of separate complaints.[28]

In the case at bar, kidnapping was not sufficiently proven. Although appellants bound and gagged Chua
and transported him to Bulacan against his will, they did these acts to facilitate his killing, not because they
intended to detain or confine him. As soon as they arrived at the locus criminis, appellants wasted no time in
killing him. That appellants intention from the beginning was to kill the victim is confirmed by the conversation
which Sumipo heard in the car in which Maritess said that a knife would be used to kill him so that it would not
create noise.[29] The subsequent demand for ransom was an afterthought which did not qualify appellants prior
acts as kidnapping.

People v. Padica[30] instructs:

We have consistently held that where the taking of the victim was incidental to the
basic purpose to kill, the crime is only murder, and this is true even if, before the killing but
for purposes thereof, the victim was taken from one place to another. Thus, where the
evident purpose of taking the victims was to kill them, and from the acts of the accused it
cannot be inferred that the latters purpose was actually to detain or deprive the victims of
their liberty, the subsequent killing of the victims constitute the crime of murder, hence the
crime of kidnapping does not exist and cannot be considered as a component felony to
produce the complex crime of kidnapping with murder. In fact, as we held in the aforecited
case of Masilang, et. al., although the accused had planned to kidnap the victim for ransom
but they first killed him and it was only later that they demanded and obtained the money,
such demand for ransom did not convert the crime into kidnapping since no detention or
deprivation of liberty was involved, hence the crime committed was only murder.

That from the beginning of their criminal venture appellant and his brothers intended
to kill the victim can be readily deduced from the manner by which they swiftly and cold-
bloodedly snuffed out his life once they reached the isolated sugarcane plantation in
Calamba, Laguna. Furthermore, there was no evidence whatsoever to show or from which it
can be inferred that from the outset the killers of the victim intended to exchange his freedom
for ransom money. On the contrary, the demand for ransom appears to have arisen and was
consequently made as an afterthought, as it was relayed to the victims family very much later
that afternoon after a sufficient interval for consultation and deliberation among the felons
who had killed the victim around five hours earlier.

x x x The fact alone that ransom money is demanded would not per se qualify the act
of preventing the liberty of movement of the victim into the crime of kidnapping, unless the
victim is actually restrained or deprived of his liberty for some appreciable period of time or
that such restraint was the basic intent of the accused.Absent such determinant intent and
duration of restraint, the mere curtailment of freedom of movement would at most constitute
coercion.[31] (Underscoring supplied)

The crime committed was thus plain Murder. The killing was qualified by treachery. The victim was
gagged, bound, and taken from Quezon City to an isolated place in Bulacan against his will to prevent him from
defending himself and to facilitate the killing.

This Courts finding that the offense committed is Murder notwithstanding, the resulting penalty is the
same. Under Article 248 of the Revised Penal Code, murder shall be punished by reclusion perpetua to
death. The use of a motor vehicle, having been alleged in the Information and proven, can be appreciated as a
generic aggravating circumstance. There being one generic aggravating circumstance, the resulting penalty is
death. In view, however, of the enactment of Republic Act No. 9346 on June 24, 2006 prohibiting the imposition
of death penalty, the penalty is reduced to reclusion perpetua, without eligibility for parole.

Respecting the assigned error in discharging Sumipo as a state witness, the same does not lie.

The conditions for the discharge of an accused as a state witness are as follows:

(a) There is absolute necessity for the testimony of the accused whose discharge is
requested;
(b) There is no other direct evidence available for the proper prosecution of the
offense committed, except the testimony of said accused;
(c) The testimony of said accused can be substantially corroborated in its material
points;
(d) Said accused does not appear to be the most guilty; and
(e) Said accused has not at any time been convicted of any offense involving moral
turpitude.[32]

These conditions were established by the prosecution. Sumipo was the only person other than
appellants who had personal knowledge of the acts for which they were being prosecuted. Only he could
positively identify appellants as the perpetrators of the crime. He does not appear to be the most guilty. He did
not participate in planning the commission of the crime. He in fact at first thought that Maritess was joking when
she said, Diretsong dukot na rin kay Charlie. He tried to dissuade appellants from pursuing their plan. He did
not participate in the actual stabbing. And he tried to extricate himself from the attempts to extract ransom from
the victims family.
Sumipos testimony was corroborated on material points. The victims mother testified regarding the
demands for ransom.[33] Cesar Moscoso, an employee of Casa Leonisa, testified to seeing the victim, Estacio,
and Maritess at the bar-restaurant on the day and at the time in question.[34] Henry Hong, the victims cousin
who arrived at Pizza Hut, Greenhills ahead of the victims brother during the scheduled delivery of the ransom,
testified to seeing Estacio there with companions.[35] And the victims skeletal remains were found at the scene
of the crime upon Estacios information and direction.

And there is no proof that Sumipo had, at any time, been convicted of a crime involving moral turpitude.

Even assuming arguendo that the discharge of Sumipo as a state witness was erroneous, such error
would not affect the competency and quality of his testimony.[36]

Finally, the Court brushes aside Maritess disclaimer of participation in killing the victim. It was she who
bound the hands and gagged the victim. When Estacio, in Maritess company, brought the victim to the scene of
the crime and thereafter returned to the car, her and Estacios hands were bloodied.

Parenthetically, prosecution witness Arlene Francisco, Maritess friend who visited her in prison, testified
that Maritess admitted having killed Chua.[37] And the prosecution presented letters from Maritess to Estacio,
written from prison, where she admitted the deed.[38]

WHEREFORE, the Decision of the Court of Appeals of May 12, 2005 is AFFIRMED with MODIFICATION. The
Court finds appellants Maritess Ang and Pablo Estacio, Jr. guilty beyond reasonable doubt of Murder, with the
generic aggravating circumstance of use of motor vehicle. And in view of the enactment of Republic Act No.
9346 on June 24, 2006, the penalty is reduced to reclusion perpetua without eligibility for parole.