G.R. No. 102342 July 3, 1992

LUZ M. ZALDIVIA, petitioner, vs. HON. ANDRES B. REYES, JR., in his capacity as Acting Presiding Judge of the Regional Trial Court, Fourth Judicial Region, Branch 76, San Mateo, Rizal, and PEOPLE OF THE PHILIPPINES, respondents.

CRUZ, J.:

The Court is asked to determine the applicable law specifying the prescriptive period for violations of municipal ordinances.

The petitioner is charged with quarrying for commercial purposes without a mayor's permit in violation of Ordinance No. 2, Series of 1988, of the Municipality of Rodriguez, in the Province of Rizal.

The offense was allegedly committed on May 11, 1990. 1 The referral-complaint of the police was received by the Office of the Provincial Prosecutor of Rizal on May 30, 1990. 2 The corresponding information was filed with the Municipal Trial Court of Rodriguez on October 2, 1990. 3

The petitioner moved to quash the information on the ground that the crime had prescribed, but the motion was denied. On appeal to the Regional Trial Court of Rizal, the denial was sustained by the respondent judge. 4

In the present petition for review on certiorari, the petitioner first argues that the charge against her is governed by the following provisions of the Rule on Summary Procedure:

Sec. 1. Scope This rule shall govern the procedure in the Metropolitan Trial Courts, the Municipal Trial Courts, and the Municipal Circuit Trial Courts in the following cases:

xxx xxx xxx

B. Criminal Cases:

1. Violations of traffic laws, rules and regulations;

2. Violations of rental law;

3. Violations of municipal or city ordinances;

4. All other criminal cases where the penalty prescribed by law for the offenses charged does not exceed six months imprisonment, or a fine of one thousand pesos (P1,000.00), or both, irrespective of other imposable penalties, accessory or otherwise, or of the civil liability arising therefrom. . . . (Emphasis supplied.)

xxx xxx xxx

Sec. 9. How commenced. The prosecution of criminal cases falling within the scope of this Rule shall be either by complaint or by information filed directly in court without need of a prior preliminary examination or preliminary investigation: Provided, however, That in Metropolitan Manila and chartered cities, such cases shall be commenced only by information; Provided, further, That when the offense cannot be prosecuted de oficio,the corresponding complaint shall be signed and sworn to before the fiscal by the offended party.

She then invokes Act. No. 3326, as amended, entitled "An Act to Establish Periods of Prescription for Violations Penalized by Special Acts and Municipal Ordinances and to Provide When Prescription Shall Begin to Run," reading as follows:

Sec. 1. Violations penalized by special acts shall, unless provided in such acts, prescribe in accordance with the following rules: . . . Violations penalized by municipal ordinances shall prescribe after two months.

Sec. 2. Prescription shall begin to run from the day of the commission of the violation of the law, and if the same be not known at the time, from the discovery thereof and the institution of judicial proceedings for its investigation and punishment.

The prescription shall be interrupted when proceedings are instituted against the guilty person, and shall begin to run again if the proceedings are dismissed for reasons not constituting jeopardy.

Sec. 3. For the purposes of this Act, special acts shall be acts defining and penalizing violations of law not included in the Penal Code. (Emphasis supplied)

Her conclusion is that as the information was filed way beyond the two-month statutory period from the date of the alleged commission of the offense, the charge against her should have been dismissed on the ground of prescription.

For its part, the prosecution contends that the prescriptive period was suspended upon the filing of the complaint against her with the Office of the Provincial Prosecutor. Agreeing with the respondent judge, the Solicitor General also invokes Section 1, Rule 110 of the 1985 Rules on Criminal Procedure, providing as follows:

Sec. 1. How Instituted For offenses not subject to the rule on summary procedure in special cases, the institution of criminal action shall be as follows:

a) For offenses falling under the jurisdiction of the Regional Trial Court, by filing the complaint with the appropriate officer for the purpose of conducting the requisite preliminary investigation therein;

b) For offenses falling under the jurisdiction of the Municipal Trial Courts

and Municipal Circuit Trial Courts, by filing the complaint directly with the said courts, or a complaint with the fiscal's office. However, in Metropolitan Manila and other chartered cities, the complaint may be filed only with the office of the fiscal.

In all cases such institution interrupts the period of prescription of the offense charged. (Emphasis supplied.)

Emphasis is laid on the last paragraph. The respondent maintains that the filing of the complaint with the Office of the Provincial Prosecutor comes under the phrase "such institution" and that the phrase "in all cases" applies to all cases, without distinction, including those falling under the Rule on Summary Procedure.

The said paragraph, according to the respondent, was an adoption of the following dictum in Francisco v. Court of Appeals: 5

In view of this diversity of precedents, and in order to provide guidance for Bench and Bar, this Court has re-examined the question and, after mature consideration, has arrived at the conclusion that the true doctrine is, and should be, the one established by the decisions holding that the filing of the complaint in the Municipal Court, even if it be merely for purposes of preliminary examination or investigation, should, and does, interrupt the period of prescription of the criminal responsibility, even if the court where the complaint or information is filed can not try the case on its merits. Several reasons buttress this conclusion: first, the text of Article 91 of the Revised Penal Code, in declaring that the period of prescription "shall be interrupted by the filing of the complaint or information" without distinguishing whether the complaint is filed in the court for preliminary examination or investigation merely, or for action on the merits. Second, even if the court where the complaint or information is filed may only proceed to investigate the case, its actuations already represent the initial step of the proceedings against the offender. Third, it

is unjust to deprive the injured party of the right to obtain vindication on account of delays that are not under his control. All that the victim of the offense may do on his part to initiate the prosecution is to file the requisite complaint.

It is important to note that this decision was promulgated on May 30, 1983, two months before the promulgation of the Rule on Summary Procedure on August 1, 1983. On the other hand, Section 1 of Rule 110 is new, having been incorporated therein with the revision of the Rules on Criminal Procedure on January 1, 1985, except for the last paragraph, which was added on October 1, 1988.

That section meaningfully begins with the phrase, "for offenses not subject to the rule on summary procedure in special cases," which plainly signifies that the section does not apply to offenses which are subject to summary procedure. The phrase "in all cases" appearing in the last paragraph obviously refers to the cases covered by the Section, that is, those offenses not governed by the Rule on Summary Procedure. This interpretation conforms to the canon that words in a statute should be read in relation to and not isolation from the rest of the measure, to discover the true legislative intent.

As it is clearly provided in the Rule on Summary Procedure that among the offenses it covers are violations of municipal or city ordinances, it should follow that the charge against the petitioner, which is for violation of a municipal ordinance of Rodriguez, is governed by that rule and not Section 1 of Rule 110.

Where paragraph (b) of the section does speak of "offenses falling under the jurisdiction of the Municipal Trial Courts and Municipal Circuit Trial Courts," the obvious reference is to Section 32(2) of B.P. No. 129, vesting in such courts:

(2) Exclusive original jurisdiction over all offenses punishable with imprisonment of not exceeding four years and two months, or a fine of not more than four thousand pesos, or both such fine and imprisonment, regardless of other imposable accessory or other penalties, including the civil liability arising from such offenses or predicated

thereon, irrespective of kind, nature, value, or amount thereof; Provided, however, That in offenses involving damage to property through criminal negligence they shall have exclusive original jurisdiction where the imposable fine does not exceed twenty thousand pesos.

These offenses are not covered by the Rule on Summary Procedure.

Under Section 9 of the Rule on Summary Procedure, "the complaint or information shall be filed directly in court without need of a prior preliminary examination or preliminary investigation." 6 Both parties agree that this provision does not prevent the prosecutor from conducting a preliminary investigation if he wants to. However, the case shall be deemed commenced only when it is filed in court, whether or not the prosecution decides to conduct a preliminary investigation. This means that the running of the prescriptive period shall be halted on the date the case is actually filed in court and not on any date before that.

This interpretation is in consonance with the afore-quoted Act No. 3326 which says that the period of prescription shall be suspended "when proceedings are instituted against the guilty party." The proceedings referred to in Section 2 thereof are "judicial proceedings," contrary to the submission of the Solicitor General that they include administrative proceedings. His contention is that we must not distinguish as the law does not distinguish. As a matter of fact, it does.

At any rate, the Court feels that if there be a conflict between the Rule on Summary Procedure and Section 1 of Rule 110 of the Rules on Criminal Procedure, the former should prevail as the special law. And if there be a conflict between Act. No. 3326 and Rule 110 of the Rules on Criminal Procedure, the latter must again yield because this Court, in the exercise of its rule-making power, is not allowed to "diminish, increase or modify substantive rights" under Article VIII, Section 5(5) of the Constitution. Prescription in criminal cases is a substantive right. 7

Going back to the Francisco case, we find it not irrelevant to observe that the decision would have been conformable to Section 1, Rule 110, as the offense involved was grave oral defamation punishable under the Revised Penal Code with arresto mayor in its maximum period to prision

correccional in its minimum period. By contrast, the prosecution in the instant case is for violation of a municipal ordinance, for which the penalty cannot exceed six months, 8 and is thus covered by the Rule on Summary Procedure.

The Court realizes that under the above interpretation, a crime may prescribe even if the complaint is filed seasonably with the prosecutor's office if, intentionally or not, he delays the institution of the necessary judicial proceedings until it is too late. However, that possibility should not justify a misreading of the applicable rules beyond their obvious intent as reasonably deduced from their plain language. The remedy is not a distortion of the meaning of the rules but a rewording thereof to prevent the problem here sought to be corrected.

Our conclusion is that the prescriptive period for the crime imputed to the petitioner commenced from its alleged commission on May 11, 1990, and ended two months thereafter, on July 11, 1990, in accordance with Section 1 of Act No. 3326. It was not interrupted by the filing of the complaint with the Office of the Provincial Prosecutor on May 30, 1990, as this was not a judicial proceeding. The judicial proceeding that could have interrupted the period was the filing of the information with the Municipal Trial Court of Rodriguez, but this was done only on October 2, 1990, after the crime had already prescribed.

WHEREFORE, the petition is GRANTED, and the challenged Order dated October 2, 1991 is SET ASIDE. Criminal Case No. 90-089 in the Municipal Trial Court of Rodriguez, Rizal, is hereby DISMISSED on the ground of prescription. It is so ordered.

Narvasa, C.J., Gutierrez, Jr., Paras, Feliciano, Padilla, Bidin, Grio-Aquino, Medialdea, Regalado, Davide, Jr., Romero, Nocon and Bellosillo, JJ., concur.

G.R. No. 167571 November 25, 2008

LUIS PANAGUITON, JR., petitioner vs. DEPARTMENT OF JUSTICE, RAMON C. TONGSON and RODRIGO G. CAWILI, respondents.

D E C I S I O N

TINGA, J.:

This is a Petition for Review1 of the resolutions of the Court of Appeals dated 29 October 2004 and 21 March 2005 in CA G.R. SP No. 87119, which dismissed Luis Panaguiton, Jr.'s (petitioner's) petition for certiorari and his subsequent motion for reconsideration.2

The facts, as culled from the records, follow.

In 1992, Rodrigo Cawili (Cawili) borrowed various sums of money amounting to P1,979,459.00 from petitioner. On 8 January 1993, Cawili and his business associate, Ramon C. Tongson (Tongson), jointly issued in favor of petitioner three (3) checks in payment of the said loans. Significantly, all three (3) checks bore the signatures of both Cawili and Tongson. Upon presentment for payment on 18 March 1993, the checks were dishonored, either for insufficiency of funds or by the closure of the account. Petitioner made formal demands to pay the amounts of the checks upon Cawili on 23 May 1995 and upon Tongson on 26 June 1995, but to no avail.3

On 24 August 1995, petitioner filed a complaint against Cawili and Tongson4 for violating Batas Pambansa Bilang 22 (B.P. Blg. 22)5 before the Quezon City Prosecutor's Office. During the preliminary investigation, only Tongson appeared and filed his counter-affidavit.6 Tongson claimed that he had been unjustly included as party-respondent in the case since petitioner had lent money to Cawili in the latter's personal capacity. Moreover, like petitioner, he had lent various sums to Cawili and in appreciation of his services, he was

offered to be an officer of Roma Oil Corporation. He averred that he was not Cawili's business associate; in fact, he himself had filed several criminal cases against Cawili for violation of B.P. Blg. 22. Tongson denied that he had issued the bounced checks and pointed out that his signatures on the said checks had been falsified.

To counter these allegations, petitioner presented several documents showing Tongson's signatures, which were purportedly the same as the those appearing on the checks.7 He also showed a copy of an affidavit of adverse claim wherein Tongson himself had claimed to be Cawili's business associate.8

In a resolution dated 6 December 1995,9 City Prosecutor III Eliodoro V. Lara found probable cause only against Cawili and dismissed the charges against Tongson. Petitioner filed a partial appeal before the Department of Justice (DOJ) even while the case against Cawili was filed before the proper court. In a letter-resolution dated 11 July 1997,10 after finding that it was possible for Tongson to co-sign the bounced checks and that he had deliberately altered his signature in the pleadings submitted during the preliminary investigation, Chief State Prosecutor Jovencito R. Zuo directed the City Prosecutor of Quezon City to conduct a reinvestigation of the case against Tongson and to refer the questioned signatures to the National Bureau of Investigation (NBI).

Tongson moved for the reconsideration of the resolution, but his motion was denied for lack of merit.

On 15 March 1999, Assistant City Prosecutor Ma. Lelibet S. Sampaga (ACP Sampaga) dismissed the complaint against Tongson without referring the matter to the NBI per the Chief State Prosecutor's resolution. In her resolution,11 ACP Sampaga held that the case had already prescribed pursuant to Act No. 3326, as amended,12 which provides that violations penalized by B.P. Blg. 22 shall prescribe after four (4) years. In this case, the four (4)-year period started on the date the checks were dishonored, or on 20 January 1993 and 18 March 1993. The filing of the complaint before the Quezon City Prosecutor on 24 August 1995 did not interrupt the running of the prescriptive period, as the law contemplates judicial, and not administrative proceedings. Thus, considering that from 1993 to 1998, more than four (4) years had already elapsed and no information had as yet been filed against Tongson, the alleged violation of B.P. Blg. 22 imputed to him

had already prescribed.13 Moreover, ACP Sampaga stated that the order of the Chief State Prosecutor to refer the matter to the NBI could no longer be sanctioned under Section 3, Rule 112 of the Rules of Criminal Procedure because the initiative should come from petitioner himself and not the investigating prosecutor.14 Finally, ACP Sampaga found that Tongson had no dealings with petitioner.15

Petitioner appealed to the DOJ. But the DOJ, through Undersecretary Manuel A.J. Teehankee, dismissed the same, stating that the offense had already prescribed pursuant to Act No. 3326.16Petitioner filed a motion for reconsideration of the DOJ resolution. On 3 April 2003,17 the DOJ, this time through then Undersecretary Ma. Merceditas N. Gutierrez, ruled in his favor and declared that the offense had not prescribed and that the filing of the complaint with the prosecutor's office interrupted the running of the prescriptive period citing Ingco v. Sandiganbayan.18 Thus, the Office of the City Prosecutor of Quezon City was directed to file three (3) separate informations against Tongson for violation of B.P. Blg. 22.19 On 8 July 2003, the City Prosecutor's Office filed an information20 charging petitioner with three (3) counts of violation of B.P. Blg. 22.21

However, in a resolution dated 9 August 2004,22 the DOJ, presumably acting on a motion for reconsideration filed by Tongson, ruled that the subject offense had already prescribed and ordered "the withdrawal of the three (3) informations for violation of B.P. Blg. 22" against Tongson. In justifying its sudden turnabout, the DOJ explained that Act No. 3326 applies to violations of special acts that do not provide for a prescriptive period for the offenses thereunder. Since B.P. Blg. 22, as a special act, does not provide for the prescription of the offense it defines and punishes, Act No. 3326 applies to it, and not Art. 90 of the Revised Penal Code which governs the prescription of offenses penalized thereunder.23 The DOJ also cited the case of Zaldivia v. Reyes, Jr.,24 wherein the Supreme Court ruled that the proceedings referred to in Act No. 3326, as amended, are judicial proceedings, and not the one before the prosecutor's office.

Petitioner thus filed a petition for certiorari25 before the Court of Appeals assailing the 9 August 2004 resolution of the DOJ. The petition was dismissed by the Court of Appeals in view of petitioner's failure to attach a proper verification and certification of non-forum

shopping. The Court of Appeals also noted that the 3 April 2003 resolution of the DOJ attached to the petition is a mere photocopy.26 Petitioner moved for the reconsideration of the appellate court's resolution, attaching to said motion an amended Verification/Certification of Non-Forum Shopping.27Still, the Court of Appeals denied petitioner's motion, stating that subsequent compliance with the formal requirements would not per se warrant a reconsideration of its resolution. Besides, the Court of Appeals added, the petition is patently without merit and the questions raised therein are too unsubstantial to require consideration.28

In the instant petition, petitioner claims that the Court of Appeals committed grave error in dismissing his petition on technical grounds and in ruling that the petition before it was patently without merit and the questions are too unsubstantial to require consideration.

The DOJ, in its comment,29 states that the Court of Appeals did not err in dismissing the petition for non-compliance with the Rules of Court. It also reiterates that the filing of a complaint with the Office of the City Prosecutor of Quezon City does not interrupt the running of the prescriptive period for violation of B.P. Blg. 22. It argues that under B.P. Blg. 22, a special law which does not provide for its own prescriptive period, offenses prescribe in four (4) years in accordance with Act No. 3326.

Cawili and Tongson submitted their comment, arguing that the Court of Appeals did not err in dismissing the petition for certiorari. They claim that the offense of violation of B.P. Blg. 22 has already prescribed per Act No. 3326. In addition, they claim that the long delay, attributable to petitioner and the State, violated their constitutional right to speedy disposition of cases.30

The petition is meritorious.

First on the technical issues.

Petitioner submits that the verification attached to his petition before the Court of Appeals substantially complies with the rules, the verification being intended simply to secure an assurance that the allegations in the pleading are true and correct and not a product of the imagination or a matter of speculation. He points out that this Court has held in a number of cases that

a deficiency in the verification can be excused or dispensed with, the defect being neither jurisdictional nor always fatal. 31

Indeed, the verification is merely a formal requirement intended to secure an assurance that matters which are alleged are true and correctthe court may simply order the correction of unverified pleadings or act on them and waive strict compliance with the rules in order that the ends of justice may be served,32 as in the instant case. In the case at bar, we find that by attaching the pertinent verification to his motion for reconsideration, petitioner sufficiently complied with the verification requirement.

Petitioner also submits that the Court of Appeals erred in dismissing the petition on the ground that there was failure to attach a certified true copy or duplicate original of the 3 April 2003 resolution of the DOJ. We agree. A plain reading of the petition before the

Court of Appeals shows that it seeks the annulment of the DOJ resolution dated 9 August 2004,33 a certified true copy of which was attached as Annex "A."34 Obviously, the Court of Appeals committed a grievous mistake.

Now, on the substantive aspects.

Petitioner assails the DOJ's reliance on Zaldivia v. Reyes,35 a case involving the violation of a municipal ordinance, in declaring that the prescriptive period is tolled only upon filing of the information in court. According to petitioner, what is applicable in this case is Ingco v. Sandiganbayan,36 wherein this Court ruled that the filing of the complaint with the fiscal's office for preliminary investigation suspends the running of the prescriptive period. Petitioner also notes that the Ingco case similarly involved the violation of a special law, Republic Act (R.A.) No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act, petitioner notes.37 He argues that sustaining the DOJ's and the Court of Appeals' pronouncements would result in grave injustice to him since the delays in the present case were clearly beyond his control.38

There is no question that Act No. 3326, appropriately entitled An Act to Establish Prescription for Violations of Special Acts and Municipal Ordinances and to Provide When Prescription Shall Begin, is the law

applicable to offenses under special laws which do not provide their own prescriptive periods. The pertinent provisions read:

Section 1. Violations penalized by special acts shall, unless otherwise provided in such acts, prescribe in accordance with the following rules: (a) x x x; (b) after four years for those punished by imprisonment for more than one month, but less than two years; (c) x x x

Sec. 2. Prescription shall begin to run from the day of the commission of the violation of the law, and if the same be not known at the time, from the discovery thereof and the institution of judicial proceedings for its investigation and punishment.

The prescription shall be interrupted when proceedings are instituted against the guilty person, and shall begin to run again if the proceedings are dismissed for reasons not constituting jeopardy.

We agree that Act. No. 3326 applies to offenses under B.P. Blg. 22. An offense under B.P. Blg. 22 merits the penalty of imprisonment of not less than thirty (30) days but not more than one year or by a fine, hence, under Act No. 3326, a violation of B.P. Blg. 22 prescribes in four (4) years from the commission of the offense or, if the same be not known at the time, from the discovery thereof. Nevertheless, we cannot uphold the position that only the filing of a case in court can toll the running of the prescriptive period.

It must be pointed out that when Act No. 3326 was passed on 4 December 1926, preliminary investigation of criminal offenses was conducted by justices of the peace, thus, the phraseology in the law, "institution of judicial proceedings for its investigation and punishment,"39 and the prevailing rule at the time was that once a complaint is filed with the justice of the peace for preliminary investigation, the prescription of the offense is halted.40

The historical perspective on the application of Act No. 3326 is illuminating.41 Act No. 3226 was approved on 4 December 1926 at a time when the function of conducting the preliminary investigation of criminal offenses was vested in the justices of the peace. Thus, the prevailing rule at

the time, as shown in the cases of U.S. v. Lazada42 and People v. Joson,43 is that the prescription of the offense is tolled once a complaint is filed with the justice of the peace for preliminary investigation inasmuch as the filing of the complaint signifies the

institution of the criminal proceedings against the accused.44 These cases were followed by our declaration in People v. Parao and Parao45 that the first step taken in the investigation or examination of offenses partakes the nature of a judicial proceeding which suspends the prescription of the offense.46 Subsequently, in People v. Olarte,47 we held that the filing of the complaint in the Municipal Court, even if it be merely for purposes of preliminary examination or investigation, should, and does, interrupt the period of prescription of the criminal responsibility, even if the court where the complaint or information is filed cannot try the case on the merits. In addition, even if the court where the complaint or information is filed may only proceed to investigate the case, its actuations already represent the initial step of the proceedings against the offender,48 and hence, the prescriptive period should be interrupted.

In Ingco v. Sandiganbayan49 and Sanrio Company Limited v. Lim,50 which involved violations of the Anti-Graft and Corrupt Practices Act (R.A. No. 3019) and the Intellectual Property Code (R.A. No. 8293), which are both special laws, the Court ruled that the

prescriptive period is interrupted by the institution of proceedings for preliminary investigation against the accused. In the more recent case of Securities and Exchange Commission v. Interport Resources Corporation, et al.,51 the Court ruled that the nature and purpose of the investigation conducted by the Securities and Exchange Commission on violations of the Revised Securities Act,52 another special law, is equivalent to the preliminary investigation conducted by the DOJ in criminal cases, and thus effectively interrupts the prescriptive period.

The following disquisition in the Interport Resources case53 is instructive, thus:

While it may be observed that the term "judicial proceedings" in Sec. 2 of Act No. 3326 appears before "investigation and punishment" in the old law, with the subsequent change in set-up

whereby the investigation of the charge for purposes of prosecution has become the exclusive function of the executive branch, the term "proceedings" should now be understood either executive or judicial in character: executive when it involves the investigation phase and judicial when it refers to the trial and judgment stage. With this clarification, any kind of investigative proceeding instituted against the guilty person which may ultimately lead to his prosecution should be sufficient to toll prescription.54

Indeed, to rule otherwise would deprive the injured party the right to obtain vindication on account of delays that are not under his control.55 A clear example would be this case, wherein petitioner filed his complaint-affidavit on 24 August 1995, well within the four (4)-year prescriptive period. He likewise timely filed his appeals and his motions for reconsideration on the dismissal of the charges against

Tongson. He went through the proper channels, within the prescribed periods. However, from the time petitioner filed his complaint-affidavit with the Office of the City Prosecutor (24 August 1995) up to the time the DOJ issued the assailed resolution, an aggregate period of nine (9) years had elapsed. Clearly, the delay was beyond petitioner's control. After all, he had already initiated the active prosecution of the case as early as 24 August 1995, only to suffer setbacks because of the DOJ's flip-flopping resolutions and its misapplication of Act No. 3326. Aggrieved parties, especially those who do not sleep on their rights and actively pursue their causes, should not be allowed to suffer unnecessarily further simply because of circumstances beyond their control, like the accused's delaying tactics or the delay and inefficiency of the investigating agencies.

We rule and so hold that the offense has not yet prescribed. Petitioner 's filing of his complaint-affidavit before the Office of the City Prosecutor on 24 August 1995 signified the commencement of the proceedings for the prosecution of the accused and thus effectively interrupted the prescriptive period for the offenses they had been charged under B.P. Blg. 22. Moreover, since there is a definite finding of probable cause, with the debunking of the claim of prescription there is no longer any impediment to the filing of the information against petitioner.

WHEREFORE, the petition is GRANTED. The resolutions of the Court of Appeals dated 29 October 2004 and 21 March 2005 are REVERSED and

SET ASIDE. The resolution of the Department of Justice dated 9 August 2004 is also ANNULLED and SET ASIDE. The Department of Justice is ORDERED to REFILE the information against the petitioner.

No costs.

SO ORDERED.

G.R. No. L-32849 July 31, 1984

QUIRICO A. ABELA, petitioner, vs. HONORABLE CESARIO C. GOLEZ, Judge, Court of First Instance of Capiz, Branch I, and AGUSTIN ALMALBIS respondents.

RELOVA, J.:

Direct appeal by City Fiscal Quirico A. Abela, of Roxas City, from a decision dated August 27, 1970 of then Court of First Instance Judge Cesario C. Golez, compelling him to "file the proper action for estafa arising from the bouncing check Exhibit B. Without pronouncement as to costs." (p. 41, Rollo)

On December 28, 1968, private respondent Agustin Almalbis filed with the Office of the City Fiscal of Roxas City a complaint for estafa against one Virginia Anisco. After conducting a preliminary investigation, herein petitioner Quirico A. Abela dismissed the complaint "for lack of merit." Thereafter, private respondent Almalbis commenced the action for mandamus in the Court of First Instance of Roxas City against herein petitioner Quirico A. Abela. In due course said court rendered the above-mentioned decision. Hence, this appeal.

The findings of the petitioner are contained in his Order, from which we quote:

It appeared from the testimony of the complainant, that sometime in 1967, the complainant entered into a business arrangement with the respondent, Virginia P. Anisco. The former, who is both owner and operator of several fishing boats and fishponds, sends fish by the tons to the respondent to be sold at the Manila Divisoria Market. From the proceeds of such sales, which were entirely supervised and controlled by the respondent, respondent got four per cent (4%) commission from the gross proceeds plus whatever expenses she has

advanced as expenses in the process. Respondent in turn has the obligation to remit the balance of the proceeds to the complainant.

This business arrangement had continued for sometime at a more or less irregular interval of two weeks to the satisfaction of both parties, until the respondent later became late and irregular in her remittances of the balance of the proceeds due the complainant.

Remittances of the net proceeds were mostly done by respondent by sending her personal checks and later, when respondent had been late in her remittances, complainant proposed that respondent give him a check book, each and every check of which is presigned in blank. The blanks corresponding to the amount and the payee to be filled in later by the complainant as the value of the shipment is determined after each sale. This was done and the business again continued under the above arrangement. Then Checks Nos. 378389 dated September 16, 1968, 392377 dated October 20, 1968, 392379 dated October 29, 1968, 392380 dated October 30, 1968, and 392381 dated October 30, 1968 drawn on the Prudential Bank and Trust Company of Manila as prepared and filled in by the complainant were all dishonored for lack of funds, when presented for payments by the complainant through the Roxas City Branch of the Philippine National Bank.

The foregoing is the summary of the testimony of complainant, Agustin Almalbis. and with the submission of his aforementioned exhibits, rested his case.

Respondent failed to appear on the dates scheduled for her turn and was considered to have waived her rights to present evidence in her defense.

THE ISSUE

The question is, has the respondent committed Estafa by giving, presigned blank checks to the complainant which were later dishonored by the bank for lack of funds, as defined under Art. 315 paragraph 2-d of the Revised Penal Code.

xxx xxx xxx

There is a deceit when one is misled, either by guile or trickery or by other means, to believe to be true what is really false.

When, therefore, the parties agreed to the arrangement, that the respondent give a check book, all the individual checks contained therein already signed by the respondent as drawer in blank, leaving the complainant to fill in the payee and the amount to be drawn later after the amount is determined after the sale of each shipment of fish consigned to the respondents such arrangement can only be considered as an agreement for business convenience between those concerned and no more.

Certainly, deceit can not be attributed to the respondent if the checks from the aforesaid check book under the control of the complainant, prepared and filled in by him as to the date, the payee and amount, turned out to be dishonored as it did due to lack of funds for the simple reason, that except for presigning the checks the respondent had no hand in the preparation of the same thereby giving her no chance to determine the sufficiency of her original bank deposit or the necessary amount for replenishment of such deposit.

xxx xxx xxx

Considering, further, the element mentioned herein before, that the check dishonored must have been issued in payment of an obligation contracted at the same time without which the transaction would not have been

consummated as held in the case of People vs. Obieta et al. (CA-52 O.G. 065224), the inapplicability of the penal provision relied upon by the complainant becomes glaringly clear.

That act of the respondent in signing the checks in blank, delivering the same to the complainant to be filled in later by the latter as to the date indicating the date of the issuance, the name of the payee and the amount to be drawn, in payment for the costs of future shipments of fish to be sold at the Manila Market, can never be interpreted or considered as checks issued in the payment of an obligation contracted at, the same time even by the wildest stretch of imagination. The law contemplates, as ruled in the case of People vs. Obieta aforecited, of one uninterrupted transaction. The consummation of the transaction and the issuance must be concurrent. (pp. 17, 20, 21, 22, Rollo)

The Honorable Judge Golez overruled petitioner, saying:

The first check so issued is PBTC (Prudential Bank and Trust Company) Check AD No. 378389, dated September 16, 1968, payable to the order of Mr. Agustin Almalbis in the amount of P6,000.00 and signed by Virginia P. Anisco (Exhibit B).

The second check issued was PBTC Check AD No. 392377, dated October 20, 1968, payable to the order of Cash in the amount of P3,637.05 and signed by Virginia P. Anisco. (Exhibit C).

The third check issued was PBTC Check No. 392379, dated October 29, 1968, payable to the order of Agustin Almalbis in the amount of P3,426.85 and signed by Virginia P. Anisco. (Exhibit D).

The fourth and fifth checks issued were PBTC Check AD No. 392381, and PBTC Check AD No. 392380, both dated

October 30, 1968, in the amount of P1,360.50 and P3,000.00, respectively, both payable to Cash both signed by Virginia P. Anisco. (Exhibits E and F).

It also appears that Virginia P. Anisco, the respondent mentioned in the aforementioned letter-complaint Exhibit A, was handling the sales of the fish which the petitioner in Roxas City was shipping from time to time to Manila where the said fish was sold by Virginia P. Anisco in the Divisoria Market for which service Anisco was paid by Almalbis a commission of 4% on the gross proceeds of the sales.

According to Almalbis it was their agreement that Anisco would remit to him here in Roxas City the net proceeds of the sales of fish made by Anisco in Manila after deducting her commission and other incidental expenses therefrom.

The five checks Exhibits B, C, D, E and F adverted to elsewhere above represented the net proceeds realized from the sales made by Virginia P. Anisco of the fish of Agustin Almalbis.

The petitioner Agustin Almalbis further narrated that the PBTC Check AD No. 378389, dated September 16, 1968 (Exhibit B), was hand-carried by Amador Anisco, from Manila to Roxas City where Amador delivered the said check Exhibit B to the said petitioner. Then Almalbis indorsed the check Exhibit B to the Philippine National Bank, Roxas City Branch, where it was accepted for deposit only. Later on the check Exhibit E was returned to Almalbis, dishonored by the Prudential Bank and Trust Company against which it had been drawn, for lack of funds. When the check Exhibit B had found its way back to Almalbis, the latter left for Manila to inquire from Virginia why the said check bounced back. Virginia begged of him to give her a little more time to get sufficient funds for The said check Exhibit B. But the funds never came.

Meanwhile, and upon the plea of Virginia, the petitioner continued to make shipments of fish to her, and as part of this new understanding, Virginia agreed to sign, as she signed, checks in blank which she delivered to petitioner who was to fill the blanks therein with the amount and date corresponding to the sales of fish made by Virginia and reported by her by telegram to said petitioner. By virtue of this arrangement the checks Exhibits C, D, E and F were made out by Almalbis himself by filling up the pre-signed blank checks provided him by Virginia. But the said checks Exhibits C, D, E and F also bounced back for lack of funds or for the reason of "Exceeds Arrangements" (Exhibit D-5 and E-5).

Almalbis declared that he placed all of the foregoing facts at the disposal of the respondent City Fiscal Quirico Abela who conducted the preliminary investigation on his within mentioned letter-complaint of 26th December 1968.

xxx xxx xxx

The instant petition is also a two-fold action, firstly, for certiorari upon the ground that the respondent Fiscal gravely abused his discretion in dismissing the within mentioned complaint with the result that the petitioner herein has been deprived of his right as the aggrieved party in a criminal transaction-and,secondly, for mandamus to compel the said respondent to bring the corresponding criminal action. The second phase of the action, i.e., mandamus, depends entirely upon the success or failure of the first phase of the action, i.e., certiorari, in the sense that should it be found that the respondent herein did gravely abuse his discretion in dismissing petitioner's complaint mandamus would lie to rectify his error. (Bonilla, et al., vs. Sec. of Agriculture & Natural Resources, L-20083, April 27, 1967).

In the given state of facts such as spelled out elsewhere above the right of the petitioner, with specific reference to the check Exhibit B, cannot be said to be dubious,

uncertain or nebulous, but in fact well- defined, clear and certain, not at all found within the sphere of speculation or probability, but is firmly secured within the realm of certainty, and this condition should entitle the petitioner herein to a relief for official inaction obtainable through the extraordinary remedy of mandamus. (See the following cases: Aquino v. General Manager, GSIS, L-24859, Jan. 31, 1968; Aprueba et al. v. Ganzon, et al., L-20867, Sept. 3, 1966; Kwok Kam Lien v. Vivo, L-22354, Mar. 31, 1965; Alzate v. Aldana L-18085, May 1963; Villamor, et al. v. Lacson, et al., L-15945, Nov. 28, 1964; People v. Orais, 65 Phil. 744, 747.)

While as already shown the discretion of the court will not ordinarily be controlled by mandamus, it is not universally true that the writ will not issue to control such discretion or to require a judicial tribunal to act in a particular way. Where the discretion of the court can be legally exercised in only one way, mandamus will lie to compel the court to exercise it; and in some cases has been employed to correct the errors of inferior tribunals and to prevent a failure of justice or irreparable injury where there is a clear right, and there is an absence of any adequate remedy, as for instance where no appeal lies, or where the remedy by appeal is inadequate. It may also be employed to prevent an abuse of discretion or to correct an arbitrary action which does not amount to the exercise of discretion. (Corpus Juris, sec. 85, pp. 608-609, as quoted in People v. Orais, supra)

So that where the fiscal filed an information for homicide over the insistence of the aggrieved party that the crime committed was murder as shown by the declaration of witnesses disclosing the presence of qualifying circumstances the Supreme Court ruled that his failure to file the proper information rendered the Fiscal subject to the writ of mandamus. (Bernabe v. Bolinas, et al., L-22000, Nov. 29, 1966.) " (pp. 33, 35, 39, 4 1, Rollo)

There is merit in the appeal. The public prosecutor is entitled to use his judgment and discretion in the appreciation of evidence presented to him and, in the exercise thereof, he may not be controlled by mandamus. Whether an information should be filed in court is a matter address to the sound discretion of the fiscal according to whether the evidence is in his opinion sufficient to establish the guilt of the accused beyond a reasonable doubt.

Otherwise stated, the fiscal can not be compelled to act in a distinct manner whether to prosecute or not to prosecute and, instead, is allowed to stand on his opinion and conviction, "reserving only to the Secretary, in any appropriate case when the latter believes public interest impels that a different course of action should be taken, to temporarily relieve the fiscal of the duty to act by designating somebody else to take his place solely and only for the purpose of such particular case. ... Under Sections 1679 and 1689 of the Revised Administrative Code, in any instance where a provincial or city fiscal fails, refuses or is unable, for any reason, to investigate or prosecute a case and, in the opinion of the Secretary of Justice it is advisable in the public interest to take a different course of action, the Secretary may either appoint as acting provincial or city fiscal, to handle the investigation or prosecution exclusively and only for such case, any practicing attorney or some competent officer of the Department of Justice or office of any city or provincial fiscal, with complete authority to act therein in all respects as if he were the provincial or city fiscal himself, or appoint any lawyer in the government service or not in the government service, temporarily to assist such city or provincial fiscal in the discharge of his duties, with the same complete authority to act independently of and for such city or provincial fiscal, provided that no such appointment may be made without first hearing the fiscal concerned and never after the corresponding information has already been filed with the court by the corresponding city or provincial fiscal without the conformity of the latter, except when it can be patently shown to the court having cognizance of the case that said fiscal is intent on prejudicing the interest of justice. The same sphere of authority is true with the prosecutor directed and authorized under Section 3 of Republic Act 3783, as amended and/or inserted by Republic Act 5184." (Estrella vs. Orendain Jr., 37 SCRA 640)

However, the matter of instituting an information should be distinguished from a motion by the fiscal for the dismissal of a case already filed in court. The judge may properly deny the motion where, judging from the record of the preliminary investigation, there appears to be sufficient evidence to

sustain the prosecution. This is, as it should be, because the case is already in court and, therefore, within its discretion and control.

But then, the question may be asked: What are the remedies of the offended party or complainant when the prosecuting officer refuses or fails to file an information or to prosecute the criminal action? As stated above, "[i]n case the provincial fiscal should fail or refuse to act even when there is sufficient evidence on which action may be taken, the offended party may take up the matter with the Secretary of Justice who may then take such measures as may be necessary in the interest of justice under Section 1679 of the Revised Administrative Code. (Pagan vs. Pasicolan, 103 Phil. 1143). " He may also file with the proper authorities or courts criminal and administrative charges against the prosecuting officer. As held in Bagatua vs. Revilla, 104 Phil. 393, "[w]hile it is the duty of the fiscal or the City Attorney, as prosecuting officer, to prosecute persons who, according to the evidence received from the complainant; are shown to be guilty of a crime, said officer is likewise bound by his oath of office to protect innocent persons from groundless, false or malicious prosecution. The prosecuting officer would be committing a serious dereliction of duty if he files the information based upon a complaint, where he is not convinced that the sufficiency and strength of the evidence would warrant the filing of the action in court against the accused. This duty of the prosecuting officer involves discretion, hence, it cannot be controlled by mandamus unless there has been a grave abuse thereof which is not shown in the case at bar." Or, he may file a civil action for damages under Article 27 of the New Civil Code.

WHEREFORE, the decision, dated August 27, 1970, of respondent judge is hereby SET ASIDE.

SO ORDERED.

Concepcion, Jr., Guerrero, Abad Santos, Melencio-Herrera, Plana, Gutierrez, Jr., De la Fuente and Cuevas, JJ., concur.

Makasiar, J., concurs in the result.

Fernando, C.J., Escolin, Teehankee, JJ., took no part.

Separate Opinions

AQUINO, J., concurring:

I concur. As a general rule, mandamus does not lie to compel the fiscal to file an information because that duty involves the exercise of discretion and judgment. It is not ministerial (Gonzales vs. Serrano, L-25791, September 23, 1968, 25 SCRA 64; Vda. de Bagatua vs. Revilla, 104 Phil. 392; Gonzales vs. Court of First Instance of Bulacan, 63 Phil. 846; People vs. Natoza 100 Phil. 533, 536; Alberto vs. De la Cruz, L-31839, June 30, 1980, 98 SCRA 406; Aquino vs. Mariano, L-30485, May 31, 1984).

It is not fair to compel the fiscal to prosecute a person whose guilt may not, in his opinion, be established with the evidence submitted to him (People vs. Santos, L-25413, October 31, 1969,30 SCRA 100).

But if the fiscal acts with grave abuse of discretion in not prosecuting the accused, he may be compelled by mandamus to file the proper information.

For example, it is grave abuse of discretion on the fiscal's part to file an information for homicide only when the evidence presented before him warrants the firing of a murder charge because the killing was treacherous. He may be compelled by mandamus to file a charge for murder (Bernabe vs. Bolinas, Jr., L-22000, November 29,1966. 18 SCRA 812).

Against the unjust action or inaction of a fiscal, the remedy is an appeal to the Minister of Justice who has control of fiscals, or to file an administrative charge against him. (Presidential Decree No. 1275, Reorganizing the Prosecution Staff; Circular No. 36 dated July 1, 1980, Ministry of Justice; Estrella vs. Orendain Jr., L-19611, February 27, 1971, 37 SCRA 640; Noblejas vs. Salas, L-31788, September 15, 1975, 67 SCRA 47; Caeg vs. Abad Santos, L-40044, March 10, 1975, 63 SCRA 96; Pangan vs. Pasicolan, 103 Phil. 1143 unpublished.)

Separate Opinions

AQUINO, J., concurring:

I concur. As a general rule, mandamus does not lie to compel the fiscal to file an information because that duty involves the exercise of discretion and judgment. It is not ministerial (Gonzales vs. Serrano, L-25791, September 23, 1968, 25 SCRA 64; Vda. de Bagatua vs. Revilla, 104 Phil. 392; Gonzales vs. Court of First Instance of Bulacan, 63 Phil. 846; People vs. Natoza 100 Phil. 533, 536; Alberto vs. De la Cruz, L-31839, June 30, 1980, 98 SCRA 406; Aquino vs. Mariano, L-30485, May 31, 1984).

It is not fair to compel the fiscal to prosecute a person whose guilt may not, in his opinion, be established with the evidence submitted to him (People vs. Santos, L-25413, October 31, 1969,30 SCRA 100).

But if the fiscal acts with grave abuse of discretion in not prosecuting the accused, he may be compelled by mandamus to file the proper information.

For example, it is grave abuse of discretion on the fiscal's part to file an information for homicide only when the evidence presented before him warrants the firing of a murder charge because the killing was treacherous. He may be compelled by mandamus to file a charge for murder (Bernabe vs. Bolinas, Jr., L-22000, November 29,1966. 18 SCRA 812).

Against the unjust action or inaction of a fiscal, the remedy is an appeal to the Minister of Justice who has control of fiscals, or to file an administrative charge against him. (Presidential Decree No. 1275, Reorganizing the Prosecution Staff; Circular No. 36 dated July 1, 1980, Ministry of Justice; Estrella vs. Orendain Jr., L-19611, February 27, 1971, 37 SCRA 640; Noblejas vs. Salas, L-31788, September 15, 1975, 67 SCRA 47; Caeg vs. Abad Santos, L-40044, March 10, 1975, 63 SCRA 96; Pangan vs. Pasicolan, 103 Phil. 1143 unpublished.)

G.R. No. L-39962 April 7, 1976

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RICARDO BERIALES, BENEDICTO CUSTODIO and PABLITO CUSTODIO, accused-appellants.

Francisco D. Abas for appellants.

Solicitor General Estelito P. Mendoza, Assistant Solicitor General Alicia V. Sempio-Diy and Solicitor Amado D. Aquino for appellee.

CONCEPCION JR., J.:

Appeal from the decision of the Court of First Instance of Leyte, Branch V, Ormoc City, in Criminal Case No. 562-0, convicting the accused Ricardo Beriales Benedicto Custodio and Pablito Custodio of the crime of murder, sentencing each one of them to the penalty of reclusion perpetua, and to jointly and severally pay the heirs of Saturnina Gonzales Porcadilla the sum of P12,000.00 and to pay the costs. 1

It appears that in Criminal Case No. 562-0 the herein appellants were charged with the crime of murder in an information filed by the City Fiscal of Ormoc City on November 22, 1974, allegedly committed as follows:

That on or about the 13th of September, 1974, at around 9:00 o'clock in the morning at Barrio Mahayahay, this city, and within the jurisdiction of this Honorable Court, the above-named accused, RICARDO BERIALES BENEDICTO CUSTODIO and PABLITO CUSTODIO, conspiring together, confederating with and mutually helping and aiding one another, with treachery and evident premeditation and with intent to kill, did then and there wilfully, unlawfully and feloniously attack, assault, strike and stab the person of SATURNINA PORCADILLA, without giving the latter sufficient time to defend herself,

thereby inflicting upon the latter mortal wounds which caused her death. ... 2

At the hearing of November 26, 1974, appellants' counsel moved for a reinvestigation of said ease, along with two other related cases 3 which the court a quo granted, in its Order reading as follows:

On motion of Atty. Abas counsel for the accused and without objection on the part of Fiscal Ramon So Jr., let the reinvestigation of this case immediately take place at the Office of the City Fiscal and let the arraignment and trial be postponed until December 5 and 6, 1974 at 7:30 a.m. of each day, if and when the Fiscal shall recommend that the case shall proceed after it shall have been reinvestigated, with notice to Attys. Abas and Cornejos as well as Fiscal Solis in open court. 4

On December 3, 1974, the trial court postponed the hearing of the case to December 17 and 18, 1974. 5 in view of the City Fiscal's motion "for a deferment of the hearing or trial set for December 5 and 6, 1974 until such time the REINVESTIGATION shall have been terminated for which the result of said reinvestigation will be submitted to this Honorable Court for its resolution in the premises." 6

On December 6, 1974, however, the trial court, motu proprio cancelled the aforesaid hearings on December 17, and 18, 1974, and, instead, reset the arraignment and trial of the case to December 10 and 11, 1974. 7

At the hearing of December 10, 1974, appellants counsel manifested to the court that pursuant to its approval of his motion for reinvestigation, the City Fiscal had set the reinvestigation for December 12, 1974 and had already issued the corresponding subpoena to secure the attendance of the witnesses. 8 Nevertheless, the court a quo, issued an order setting the hearing of the case to the next day, December 11, 1974, 9 at which hearing, appellants' counsel reiterated his manifestation that since the City Fiscal had already ordered the reinvestigation on December 12, 1974, the said reinvestigation should first be finished and the corresponding resolution rendered thereon and submitted to the court before any trial of the case should take place. 10

The trial court, however, relying on the mandate of the New Constitution that "All persons shall have the right to a speedy disposition of their cases before all judicial, quasi-judicial, or administrative bodies" 11 re-scheduled the hearing to December 13, 1974. 12 Immediately thereafter, Special Counsel Rosario R. Polines, in representation of the City Fiscal, manifested that the private prosecutor, Atty. Procadilla, be authorized to conduct the case for the prosecution.

When the case was called for hearing on December 13, 1974, counsel for the appellant asked the court to wait for the City Fiscal to appear, since the reinvestigation of the case had already been terminated and the Fiscal, if given a chance, might be able to report on said reinvestigation. 14 The trial court, however, insisted in arraigning the appellants.15 When arraigned, the three appellants declined to plead, saying: "I am not going to answer the question because the Fiscal is not yet around." 16 Thereupon, the trial court entered a plea of "Not Guilty" for each of them. 17

Thereafter, appellants' counsel again manifested that the City Fiscal was absent and that they could not go to trial without the fiscal and his report on the reinvestigation conducted by him. 18 Nonetheless, the trial court, ordered the presentation of evidence by the private prosecutor since he had been previously authorized by the City Fiscal to handle the case. 19

After the direct examination of the witnesses presented by the private prosecutor, the trial court asked the counsel for the defense if he desired to cross-examine the witnesses. Appellants' counsel, however, reiterated his manifestation that they would not go to trial until the City Fiscal shall have submitted the result of the reinvestigation to the court, and the court each time ruled that it considered such manifestation as a waiver on the part of the appellants to cross-examine the witnesses. 20

Thereafter, the private prosecutor rested the case for the prosecution and the court called for the evidence of the defense. Again, appellants' counsel manifested that the appellants were not agreeing to the trial of the case unless they first received the result of the reinvestigation conducted by the City Fiscal. 21 Whereupon, the court considered the case submitted for decision and announced the promulgation of the decision on December 17, 1974. 22

When the case was called on December 17, 1974, appellants' counsel manifested that the accused were not in conformity with the promulgation of the decision on the ground that they did not agree to the trial of the case. 23Nonetheless, the trial court promulgated its judgment on the same day. 24

Hence, the appellants interpose this appeal, upon the principal ground that they were denied due process of law. 25The Solicitor General agrees with such contention and recommends that the judgment under review be set aside and the case remanded to the lower court for another arraignment and trial. 26

We sustain the appellants. After the trial court granted the appellants' motion for reinvestigation, it became incumbent upon the court to hold in abeyance the arraignment and trial of the case until the City Fiscal shall have conducted and made his report on the result of such reinvestigation. That was a matter of duty on its part, not only to be consistent with its own order but also to do justice aid at the same time to avoid a possible miscarriage of justice. It should be borne in mind, that the appellants herein were charged with the serious crime of murder, and considering that their motion for reinvestigation is based upon the ground that it was Felipe Porcadilla (husband and father, respectively, of the two deceased, Saturnina Porcadilla and Quirino Porcadilla) who was the aggressor for having attacked and seriously wounded appellant Pablito Custodio 27 it was entirely possible for the City Fiscal to modify or change his conclusion after conducting the reinvestigation. When the trial court, therefore, ignored the appellants' manifestations objecting to the arraignment and the trial of the case, until after the City Fiscal shall have rendered a resolution on his reinvestigation, but instead considered such manifestations on their part as a plea of riot guilty and proceeded to try the case, received the evidence for the prosecution, and then rendered judgment against them on the basis thereof, it committed a serious irregularity which nullifies the proceedings below because such a procedure is repugnant to the due process clause of the Constitution. 28

Besides, as correctly pointed out by the Solicitor General, "what is more deplorable and which renders patently irregular all the proceedings taken in this case, was the total absence of the City Fiscal and/or any of his assistants or special counsel on December 13, 1974, when the appellants

were arraigned and when the private prosecutor presented evidence and rested the case supposedly for the People.

Under the Rules of Court, "All criminal actions either commenced by complaint or by information shall be prosecuted under the direction and control of the fiscal." 29 In the trial of criminal cases, it is the duty of the public prosecutor to appeal for the government. 30 As stated by this Court, "once a public prosecutor has been entrusted with the investigation of a case and has acted thereon by filing the necessary information in court he is b law in duty bound to take charge thereof until its finally termination, for under the law he assumes full responsibility for his failure or success since he is the one more adequately prepared to pursue it to its termination." 31 While there is nothing in the rule of practice and procedure in criminal cases which denies the right of the fiscal, in the exercise of a sound discretion, to turn over the active conduct of the trial to a private prosecutor, 32 nevertheless, his duty to direct and control the prosecution of criminal cases requires that he must be present during the proceedings. Thus, in the case of People vs. Munar 33 this Court upheld the right of the private prosecutor therein to conduct the examination of the witnesses because the government prosecutors were present at the hearing; hence, the prosecution of the case remained under their direct supervision and control.

In the present case, although the private prosecutor had previously been authorized by the special counsel Rosario R. Polines to present the evidence for the prosecution, nevertheless, in view of the absence of the City Fiscal at the hearing on December 13, 1974, it cannot be said that the prosecution of the case was under the control of the City Fiscal. It follows that the evidence presented by the private prosecutor at said hearing could not be considered as evidence for the plaintiff, the People of the Philippines. There was, therefore, no evidence at all to speak of which could have been the basis of the decision of the trial court.

Moreover, as aptly observed by the Solicitor General, "to permit such prosecution of a criminal case by the private prosecutor with the fiscal in absentia can set an obnoxious precedent that can be taken advantage of by some indolent members of the prosecuting arm of the government as well as those who are oblivious of their bounden duty to see to it not only that the guilty should be convicted, but that the innocent should be acquitted a duty that can only be effectively and sincerely performed if they actively

participate in the conduct of the case, especially in the examination of the witnesses and the presentation of documentary evidence for both parties." 34

WHEREFORE, the decision appealed from is hereby set aside and the case remanded to the trial court for another arraignment and trial. Costs de oficio.

SO ORDERED.

Barredo, Antonio, Aquino and Martin, JJ., concur.

G.R. No. 116237 May 15, 1996

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. FE ARCILLA y CORNEJO, accused-appellant.

PUNO, J.:p

In an Information, dated August 5, 1992, 1 accused FE ARCILLA y CORNEJO was charged with Parricide before the Regional Trial Court of Daraga, Albay, viz:

That on or about 9:00 A.M. of May 1, 1992, at Brgy. Namantao, Daraga, Albay, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with intent to kill and while armed with a fan knife, did then and there willfully, unlawfully and feloniously attack and stab her husband, ANTONIO F. ARCILLA, hitting and inflicting upon the latter fatal wound on his left chest, which injury directly caused and resulted to the death of said Antonio F. Arcilla, all to the damage and prejudice of the heirs of the deceased.

CONTRARY TO LAW.

Accused pleaded not guilty 2 and underwent trial.

The evidence for the prosecution shows that accused Fe Arcilla y Cornejo and the victim, Antonio Arcilla, were married in Goa, Camarines Sur, on April 19, 1975. 3 They had five (5) children.

Accused was a teacher while Antonio was an employee of National Power Corporation in Daraga, Albay. In 1983, she left her family to work in Singapore. Her children remained in their conjugal home in Camarines Sur. Antonio, on the other hand, stayed most of the time in Albay.

Unknown to the accused, Antonio developed an illicit affair with Lilia Lipio. The house of Lilia's parents in barangay Namantao, Daraga, Albay, served as their lovenest. Antonio sired two (2) children during his amorous union with Lilia.

Eventually, the accused learned of her husband's infidelity. She returned to the country in 1988 but her return did not stop the illicit relationship between Lilia and Antonio.

The illicit relationship came to a tragic end on May 1, 1992. At about 9:00 A.M. of said date, accused went to Lilia's residence in Namantao, Daraga, Albay looking for Antonio. It was the barangay's feast day and Lilia's family had a lot of guests. The accused found Antonio having a drinking spree with his friends in a kiosk, just a few meters away from Lilia's house.

The meeting immediately started to be violent. Accused approached Antonio and slapped him. She then went inside Lilia's house and instructed Antonio to tell Lilia to join them. The three proceeded to the bedroom where the three (3) year-old son of Lilia and Antonio was sleeping. A heated altercation between accused and Antonio followed. Lilia left the bedroom and sat on a sofa in the receiving room. The sofa was about two (2) meters away and she could see the bickering couple through the bedroom's door which was then half-closed.

At the height of their arguments, the accused took a fan knife from her shoulder bag and stabbed Antonio on the chest, causing him to embrace her tightly. Lilia barged back to the room, held Antonio's belt at the back and pulled him away from accused. Accused was able to pull out the knife from Antonio's chest and she delivered a second thrust to Antonio. She hit him on the left thigh. Accused then fled with the fan knife. Blood stained her clothes.

Antonio was rushed to the hospital where he died due to "hypovolemic shock due to massive hemorrhage secondary, to stab wound."

Accused gave a different version.

She testified that she received an urgent letter from her eldest daughter asking for money to pay her tuition fees. Thus, in the early morning of May 1, 1992, she went to see her husband in his office in Daraga, Albay. The

security guard told her that Antonio was in Namantao. She proceeded to Lilia's residence and found Antonio drinking with some friends. Antonio advised her up go home and not to make a scene. Irked, she slapped him and then went inside Lilia's house. Antonio followed her up the bedroom where the three-year old son of Lilia was sleeping. Lilia joined the couple in the bedroom. Accused then asked them if the child was theirs. Lilia denied the accusation but Antonio boldly admitted that the boy was theirs. The admission provoked a heated verbal exchange between the accused and Antonio while Lilia brought the child outside the bedroom. The altercation became violent when Antonio pushed the accused and she hit the concrete wall and felt dizzy. Seeing a fan knife in a cabinet, she held it with her right hand and warned Antonio not to go near her or she would stab him. Antonio did not heed her warning. They grappled for the knife until Antonio was able to twist her left arm at her back. She managed to free her left arm and held the knife with both hands. However, Antonio moved behind her, wrapped his arms around her, held her hands and tried to force the knife towards her. She twisted her body and the knife struck Antonio's left thigh. Undaunted, Antonio tried to direct the knife towards her a second time. She bit his arm but his grip even tightened. Again, she twisted her body and, in the process, the knife struck Antonio. When his embrace loosened, she ran away.

She chanced upon a barangay tanod who helped her surrender to the barangay captain of Namantao. She was then taken to the police headquarters in Daraga, Albay.

The trial court gave more credence to the testimony of prosecution witness Lilia Lipio and convicted the accused. The dispositive portion of the trial court's Decision, dated May 27, 1994, 4 states:

CONSIDERING THE FOREGOING RATIOCINATION, the court hereby finds the accused FE ARCILLA Y CORNEJO to have committed beyond reasonable doubt the act of stabbing her lawfully wedded husband ANTONIO ARCILLA, resulting to the latter's untimely death. Accused is therefore declared GUILTY of the crime of parricide as defined and penalized under Article 246 of the Revised Penal Code. She is hereby sentenced to suffer the penalty of RECLUSION PERPETUA and the accessory penalties provided by law.

Having been found (guilty) of the capital offense, the bail bond filed for her provisional liberty is hereby cancelled and accused is ordered committed to the provincial jail.

Accused is likewise hereby ordered to pay the heirs of the deceased victim ANTONIO ARCILLA, the sum of FIFTY THOUSAND (P50,000.00) PESOS for the fact of death; TWENTY THOUSAND ONE HUNDRED (P20,100.00) PESOS, as actual or compensatory damages; and another TWENTY THOUSAND (P20,000.00) PESOS, as moral damages.

Costs against the accused.

Subsequently, the trial court amended the dispositive portion of its Decision. Treating reclusion perpetua as a divisible penalty under Republic Act No. 7659, the trial court sentenced the accused as follows:

CONSIDERING THE FOREGOING RATIOCINATION, the Court finds the accused FE ARCILLA Y CORNEJO to have committed beyond reasonable doubt the act of stabbing her lawfully wedded husband ANTONIO ARCILLA, resulting to the latter's untimely death. Accused is therefore truly and truthfully guilty of the crime of parricide. There being no aggravating or mitigating circumstance and after applying the Indeterminate Sentence Law, she is hereby sentenced to suffer the penalty of FOURTEEN (14) YEARS, EIGHT (8) MONTHS AND ONE (1) DAY OF RECLUSION TEMPORAL as minimum, to TWENTY-EIGHT (28) YEARS, (8) MONTHS AND ONE (1) DAY OF RECLUSION PERPETUA, as maximum, and all the accessory penalties provided by law.

xxx xxx xxx 5

Hence, this appeal where appellant contends:

FIRST ASSIGNED ERROR

THE TRIAL COURT ERRED IN ADMITTING THE TESTIMONY OF LILIA LIPIO DESPITE THE ABSENCE OF A PUBLIC PROSECUTOR IN THE TAKING THEREOF.

SECOND ASSIGNED ERROR

THE TRIAL COURT ERRED IN GIVING CREDENCE TO THE TESTIMONY OF LILIA LIPIO RELATIVE TO THE CIRCUMSTANCES WHICH LED TO THE DEATH OF ANTONIO ARCILLA.

THIRD ASSIGNED ERROR

THE TRIAL COURT ERRED IN NOT GIVING CREDENCE TO THE TESTIMONY OF THE ACCUSED-APPELLANT RELATIVE TO THE CIRCUMSTANCES WHICH LED TO THE DEATH OF HER HUSBAND ANTONIO ARCILLA.

The appeal lacks merit.

We reject the first contention of the appellant. The records do not show that the entire testimony of the prosecution star witness, Lilia Lipio, was given in the absence of the prosecuting fiscal. As explicitly stated by the trial judge in his Decision, viz:

xxx xxx xxx

From the records of Branch I of the Regional Trial Court, Prosecutor de Joya only attended the pre-trial of the case. The pre-trial was, however, waived by the defense. It appears that Prosecutor de Joya, after the pre-trial went back to Branch 2, as in fact he cross-examined a witness for the defense inPeople vs. Rogelio Andez. This case was heard after the hearing in instant case. So Prosecutor de Joya was absent for only a few minutes. He was not

absent for all the time that Lilia Lipio took the witness stand.

The Presiding Judge had a chance to talk to Prosecutor de Joya. According to him, he stayed at Branch I for not more than five (5) minutes, then, returned to Branch 2. When he returned to Branch 2, the private prosecutor was still conducting his direct examination on Lilia. (Emphasis supplied)

The fleeting absence of Fiscal de Joya is not a sufficient ground to invalidate the testimony of Lilia Lipio as urged by appellant. To begin with, appellant herself did not object to the continuation of the testimony of Lipio despite the momentary absence of the prosecutor. Appellant has not also shown any prejudice caused to her by the incident. Through counsel, she was able to fully cross-examine Lipio and test her credibility. To be sure, appellant misappreciates the reason requiring the public prosecutor to be present in the trial of criminal cases. A crime is an offense against the State, and hence is prosecuted in the name of the People of the Philippines. 6 For this reason, section 5 of Rule 110 provides that "all criminal actions either commenced by complaint or by information shall be prosecuted under the direction and control of the fiscal. . . ." Only private crimes like adultery, concubinage, seduction, abduction, rape or acts of lasciviousness can be prosecuted at the instance of the offended party. 7 The presence of a public prosecutor in the trial of criminal cases is necessary to protect vital state interests at stake in the prosecution of crimes, fore most of which is its interest to vindicate the rule of law, the bedrock of peace of the people. As the representative of the State, the public prosecutor has the right and the duty to take all steps to protect the rights of the People in the trial of an accused. It ought to be self evident that the right belongs to the public prosecutor and not to the accused. The absence of a prosecutor cannot therefore be raised by an accused to invalidate the testimony of a state witness if he cannot prove personal prejudice as in the case at bar.

In her second assignment of error, appellant assails the credibility of Lilia Lipio. The records will show that Lilia Lipio was clear and categorical when she testified on how Antonio was stabbed by accused. She declared: 8

ATTY. NINOFRANCO:

What happened when you entered the room?

(LILIA LIPIO)

After I entered the room Fe Arcilla asked Antonio Arcilla whether the child who was sleeping is the child of Antonio Arcilla with me?

Q What did Antonio Arcilla answer or what was the answer of Antonio Arcilla?

A Antonio Arcilla said: "yes, is it not that you knew it already."

xxx xxx xxx

Q How far were you from Antonio and Fe when you seated yourself in the receiving room?

A More or less two meters.

Q What happened while you were already seated in the receiving room.

A Fe Arcilla asked Antonio Arcilla: "what do you like me to do, do I have to kill you."

Q What was the answer of Antonio Arcilla?

A Antonio Arcilla answered, "just do it."

Q What else happened after that?

A Antonio Arcilla was standing fronting Fe Arcilla.

Q Where was he facing, was he looking at Fe Arcilla when he said that?

A Yes, sir, but his face was a little bit lower.

Q With that position of Antonio Arcilla so, what did Fe Arcilla do?

A I saw Fe Arcilla opened her shoulder bag.

Q What did he get from that bag?

A That fan knife.

Q What did she do with the fan knife?

A She immediately stabbed Antonio Arcilla.

Q Was Antonio Arcilla hit by that stabbing?

A Yes, sir.

Q Where, on what part of his body?

A At this juncture witness pointing to her left breast.

xxx xxx xxx

Q Now, after Fe Arcilla stabbed Antonio Arcilla on the left breast what else happened?

A Antonio Arcilla was able to embrace Fe Arcilla.

Q What did you do?

A Inasmuch as the hands of Fe Arcilla could not extricate from the body of Antonio Arcilla what I did was to grab Antonio Arcilla by his belt on his back as there was blood oozing from his body.

Q What happened when you grabbed Antonio Arcilla at his belt?

A Fe Arcilla was able to pull the knife and stabbed Antonio Arcilla again for the second time.

Q Where was Antonio Arcilla hit with the second stab?

A On the left thigh.

(Witness pointing to his left thigh).

Q After the second stab what did Fe Arcilla do?

A She hurriedly went out of the house.

xxx xxx xxx

During her cross-examination, Lipio remained firm and certain on what transpired that fateful day. She testified: 9

ATTY. JACOB:

Before Fe Arcilla stabbed Antonio Arcilla, nothing happened as to any conversation which took place between the two?

(LILIA LIPIO)

Only that altercation and Fe Arcilla even asked Antonio Arcilla: "What do you want me to do, do I have to kill you now?"

Q That child who was sleeping inside the room was he awakened?

A No, sir, my, child was not awakened but I told somebody to get my son and brought (sic) him to me.

Q You mean after the stabbing incident, your son was still sleeping?

A Yes, sir.

xxx xxx xxx

Q You did not witness any commotion before the stabbing incident?

A No, sir, only the door was moved by them. Why, were they grappling for something?

A No, sir, but Antonio Arcilla was able to embrace Fe Arcilla when Antonio Arcilla was stabbed by Fe Arcilla.

Q And you witnessed all these?

A Yes, sir and even my other child was able to witness it. My other child fainted.

Q The one who was not asleep?

A Yes, sir, my daughter.

Q And you said that Fe Arcilla again stabbed Antonio Arcilla for the second time hitting him on the left thigh?

A When Fe Arcilla pulled the knife from Antonio Arcilla's breast and then she thrust (sic) it again on the left thigh.

Q How, will you demonstrate?

A At this juncture witness demonstrated how Antonio Arcilla was stabbed for the second time on the left thigh. Probably the intention of Fe Arcilla was to stab the genitals of Antonio Arcilla.

Q But she failed?

A Antonio Arcilla was hit on the left thigh.

Q And he was facing Fe Arcilla?

A Yes, sir, that is why he was able to embrace Fe Arcilla and even had a hard time in pulling the knife that is why I grabbed Antonio Arcilla on his back by pulling his belt.

Q And so, you were at the back of Antonio Arcilla when he was stabbed for the second time?

A Yes, sir, going out of the sala because Fe Arcilla passed by the sala as she was going out of the room Fe Arcilla passed by the right side.

Q And so, let us get this clear Fe Arcilla stabbed Antonio Arcilla for the second time using the same hand?

A Yes, sir, the same hand, the right hand.

Q And it was done in the same manner by which she made the first thrust?

A When she pulled the knife and made a thrust and he was hit on the left thigh.

Q But by then Fe Arcilla was closer to Antonio Arcilla than when she made the first thrust?

A Yes, sir, because I was able to grab him and she was able to pull the knife and made the second thrust.

Q Romeo Lipio your brother was inside the compound of your parent's house at that time of the incident?

A Yes, sir, because he was in-charge of the cooking of the food.

The records show that the demeanor of Lipio while on the witness stand impressed the trial judge . In his Decision, the trial judge declared:

xxx xxx xxx

The court is then called upon (to) choose between these two . . . opposing actions of incompatibles. The court is wary and conscious of this state of things, so that it was quite critical and keen in the observation of the witnesses when they took the witness stand. The court was then particularly watchful and paid strict attention when prosecution witness Fe Arcilla, the accused herself, testified. Lilia may be considered a biased witness considering that she was the other woman in the life of Antonio. They have lived together for quite a number of years and in fact begotten two children out of their relation. Fe Arcilla, however, could not be far behind. She may likewise be considered as a biased witness on the footing and level as Lilia, as she is the accused in this case. . . .

As seen and sensed by the court through a careful analytic attention, Lilia was quite honest and sincere when she took the witness stand. She was emphatic in her testimony and straightforward. The court could not detect any evasiveness in her testimony. She was composed and cool.

The court, on the other hand, could feel any (sic) perceived that the accused was not disturbed by the incident which is quite unnatural. At times, she seemed to he amused and would smile, although there was nothing funny about the matter.

For the nth time, we reiterate that the trial court's assessment of the credibility of witnesses deserves great respect since it has the important opportunity to observe first-hand the expression and demeanor of the witnesses at the trial. 10 We find no cogent reason to depart from this well settled rule.

Anent the third assignment of error, we have examined the testimony of appellant and we are not convinced that the stabbing at bar was merely accidental and through the own doing of the victim. The location of the victim's wounds, the position of the accused and the victim, and their relative strength negate the credence of appellant's story. Indeed, her claim that she twisted her body at an angle that allowed the knife to pass just below her armpit and pierce the victim's chest and left thigh, is incredulous. Evidence to be believed must not only come from the mouth of a credible witness but must also be credible in itself. 11

We also reject the contention of the accused that she was forced to use the knife to resist the victim's assault. While the estranged couple had a heated argument before the stabbing incident, the evidence shows that it was the accused who provoked the victim. By her own admission, the victim initially dissuaded her from making a scene. Nonetheless, she could not control her emotion and she slapped the victim in front of his friends. Even assumingarguendo, that the victim harmed her prior to the stabbing, there was no reasonable necessity for her to use the knife as there were many people outside the house who could readily render assistance to her.

We now come to the penalty imposed by the trial court in its amended decision. In an on bane resolution, 12 dated January 9, 1995, this Court clarified its earlier 13 held that "although ruling in People v. Lucas and section 17 of R.A. 7659 has fixed the duration of reclusion perpetua from twenty years (20) and one (1) day to forty (40) years, there was no clear legislative intent to alter its original classification as an indivisible penalty." In accord with this clarification, the proper penalty to be imposed on the appellant is reclusion perpetua without any divisible period. It is then needless to address appellant's plea that the mitigating circumstance of voluntary surrender be considered in her favor. appellant's voluntary surrender will not alter her penalty of reclusion perpetua, the same being a single and indivisible penalty.

WHEREFORE, premises considered, the assailed amended decision is AFFIRMED, with modification that accused FE ARCILLA y CORNEJO is sentenced to suffer the penalty of reclusion perpetua. No costs.

SO ORDERED.

Regalado, Romero, Mendoza and Torres, Jr., JJ., concur.

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

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

Honorio Makalintal, Jr. for petitioner.

Pasay City Fiscal Gregorio Pineda for respondent.

CASTRO, J.:

The petitioner Leonardo Almeda (alias Nardong Paa) was charged, together with five others, with the crime of qualified theft of a motor vehicle (criminal case 285-Pasay) in the Circuit Criminal Court of Pasig, Rizal, presided by the respondent Judge Onofre Villauz. The amount of the bond recommended for the provisional release of Almeda was P15,000, and this was approved by the respondent judge with a direction that it be posted entirely in cash.

At the hearing of February 18, 1970, Almeda asked the trial court to allow him to post a surety bond in lieu of the cash bond required of him. This request was denied, and so was an oral motion for reconsideration, on the ground that the amended information imputed habitual delinquency and recidivism on the part of Almeda.

At the same hearing, the respondent city fiscal, thru his assistant, reiterated his oral motion made at a previous hearing for amendment of the information so as to include allegations of recidivism and habitual delinquency in the particular case of Almeda. The latter vigorously objected, arguing that (a) such an amendment was premature since no copies of prior conviction could yet be presented in court, (b) the motion to amend should have been made in writing in order to enable him to object formally, and (c) the proposed amendment would place him in double jeopardy considering that he had

already pleaded not guilty to the information. The trial court nevertheless granted the respondent fiscal's motion in open court. An oral motion for reconsideration was denied.

Immediately thereafter, the assistant fiscal took hold of the original information and, then and there, entered his amendment by annotating the same on the back of the document. The petitioner forthwith moved for the dismissal of the charge on the ground of double jeopardy, but this motion and a motion for reconsideration were denied in open court.

Hence, the present special civil action for certiorari with preliminary injunction.

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

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

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

Coming to the issue at hand, the amount fixed for bail, while reasonable if considered in terms of surety or property bonds, may be excessive if demanded in the form of cash. A surety or property bond does not require an actual financial outlay on the pa