G.R. Nos. L-61079-81 April 15, 1988 PEOPLE OF THE PHILIPPINES, appellee, vs. MARIA LOREN QUIZADA, appellant.

The argument of the accused was that the remarks allegedly made by her imputed to the complaining witness the crime of adultery, a private crime. Under Rule 110, Section 4 (now Section 5), of the Rules of Court and Article 360 of the Revised Penal Code, no criminal action for defamation imputing such offense "shall be brought except at the instance of and upon complaint filed by the offended party." The trial judge * agreed and granted the motion. 9 The charges were dismissed and the motion for reconsideration filed by the prosecution was denied. 10

CRUZ, J.: It is the interesting combination of double jeopardy and defamation that has brought this case all the way up and directly to this Court. In three separate complaints filed with the office of the provincial fiscal of Surigao del Sur, Cipriana B. Tranquilan accused Maria L. Quizada of having spoken of her, on the occasions therein mentioned, as follows: Si Nanie ka eyat, boring, bardot, kabiga-on kabit sa akong bana," which words when translated into English mean: "Nanie is a woman of ill repute, she has a love relationship with my husband, she has taken from me my husband that is the reason why she did not get married because she is a woman of bad reputation. 1 Si Nanie boring, bardal ka eyat, biga-on, dili na naminggo, nagtan-an sa sine, gikumot and iyang totoy sa akong bana," which words when translated into English mean: "Nanie is a woman of ill repute, she will not get married, she went to the show and her nipples had been squeezed by my husband. 2 Si Nanie boring, bardal ka eyat, biga-on dill na naminggo, nagtan-an sa sine, gikumot ang iyang totoy sa akong bana," which words when translated into English mean: "Nanie is a woman of ill repute, she will not get married, she went to the show and her nipples had been squeezed by my husband. 3 On the basis of these complaints, and after preliminary investigation, the assistant provincial fiscal filed in the Court of First Instance of Surigao del Sur, on September 14,1981, three separate informations for grave oral defamation against Quizada for having disparaged Tranquilan in the following language: Si Nanie ka eyat, boring, bardot, kabiga-on, kabit sa akong bana, nangilog sa aking bana ugsa wala na naminggo kay hugaw na babae," which words when translated into the English language mean: "Nanie is a flirt, a prostitute, a whore, a paramour of my husband, she grabbed my husband from me, that's why she is not married because she is a dirty woman. 4 Si Nanie boring, bardot, ka eyat, dili na maningyo, nagtan-an sa sine, gikumot ang iyong totoy sa akong bana," which words when translated into English mean: "Nanie is a prostitute, whore, flirt, she will not get married anymore, she went to the movies and her nipples were touched and squeezed by my husband. 5 Si Nanie, boring, bardot, ka eyat, biga-on dili na namingyot, nagtan-an sa sine, gikumot ang iyang totoy sa akong bana," which words when translated into English mean: "Nanie is a prostitute, whore, flirt, she will not get married anymore, she went to the movies and her nipples were touched and squeezed by my husband. 6 Upon arraignment on February 18, 1982, the accused pleaded not guilty to all the three informations. 7 Thereafter, she moved to quash the same on the ground that the charges should have been initiated not by the fiscal but upon complaint of the offended party herself. 8

The prosecution then came to this Court to challenge the dismissal, and that is how double jeopardy entered the picture. The private respondent now claims that reversal of the dismissal and reinstatement of the cases would violate her rights under Article IV, Section 22 (now Article III, Section 21) of the Constitution. Required to comment, the Solicitor General argued that the crime imputed by the alleged remarks was prostitution, a public offense. As such, it could be the basis of a prosecution for defamation through an information filed by the fiscal. 11 That is doubtless true. However, the Court notes that in addition to allegedly calling the complainant a whore the private respondent is also charged in one information with having described the former as "a paramour of my husband," which is a clear imputation of adultery. A paramour is "one who loves or is loved illicitly. One taking the place without the legal rights of a husband or wife. A mistress; called also lover." 12 Accordingly, that imputation was covered by the aforecited Rule 110. It is not denied that the charges were made through the informations filed by the assistant provincial fiscal and not formally commenced in court by the offended party. Nevertheless, it is also clear that these informations were based on the three criminal complaints earlier filed by Tranquilan with the fiscal's office, which conducted the corresponding preliminary investigation litigation thereon. Conformably to the procedural rules then in force, 13 the complaints and the records of the preliminary investigation were transmitted to the trial court upon the filing of the corresponding informations. Hence, although the charges were not initiated through complaint of the offended party and the informations did not state that they were based on her complaint, such circumstances did not deprive the respondent court of jurisdiction petition. A similar situation arose in People v. Rondina, 14 where the Court held: Under the rule prevailing at the time this case was commenced and tried in 1977, the complaint was considered part of the record at the preliminary investigation and had to be transmitted to the trial court upon the filing of the corresponding charge. Such complaint was in fact transmitted as required and could therefore be judicially noticed by the trial judge without the necessity of its formal introduction as evidence of the prosecution. This conclusion is in keeping with the doctrine embodied in People v. Perido, decided by the Court of Appeals through Justice Montemayor (later a member of this Court), who declared in part as follows: The complaint in the case at bar was duly signed by the mother of the offended party, but the prosecuting attorney during the trial, failed to introduce such complaint as part of the evidence of the prosecution. Subsequently, however, said complaint, which is part of the record of the justice of the peace court before whom the case was filed, was sent up to form part of the record in the appeal. This cured the deficiency in the evidence. Although not introduced in evidence, the complaint may be regarded as part of the record in the appellate court which can and does take judicial notice thereof. (Moran's Law of Evidence, p. 343 and Francisco's Evidence, p. 46, both citing the case of People v. Bautista, G.R. No. 40621 [unpublished]).' (Emphasis supplied.)

We note further that apart from the fact that the offended party's sworn complaint was among the papers elevated to the Court of First Instance that subsequently tried and decided the case, the information itself expressly stated that it was being filed 'upon a sworn complaint signed and filed by the offended woman. Parenthetically, it is worth observing that the original Rule 112, Section 12, of the Rules of Court, provided that upon the conclusion of the pre investigation the judge or corresponding officer shall transmit without delay to the clerk of the Court of First Instance having jurisdiction of the offense the records of the case . . .' By contrast, it is now provided in Section 8 of the same rule, as revised in 1985, that 'the record of the preliminary investigation whether conducted by a judge or a fiscall shalll not form part of the record of the case in the Regional Trial Court' The allegation of double jeopardy is plainly without merit. As we have repeatedly stressed, double jeopardy will attach if (a) a valid complaint or information (b) is filed before a competent court or tribunal, and (c) after the accused shall have been arraigned and entered a plea, (d) he is acquitted or convicted or the case is dismissed without his express consent. 15 The first three requisites are present in the case at bar but the fourth is not. It was the petitioner herself who moved to quash the charges against her on the ground that the trial court had no jurisdiction. The dismissal was made not only with her express consent but, indeed, upon her own motion. There are only two occasions when double jeopardy will attach even if the motion to dismiss the case is made by the accused himself. The first is when the ground is insufficiency of the evidence of the prosecution, and the second is when the proceedings have been unreasonably prolonged in violation of the right to a speedy trial. 16 None of these exceptions is present here. We hold in sum that the criminal informations were validly filed under the procedural rules in force at the time of such filing; that their dismissal for lack of jurisdiction was erroneous; and that their reinstatement willl not violate the prohibition against double jeopardy. ACCORDINGLY, this petition is GRANTED. The Orders of the respondent judge dated March 31, 1982, and March 24, 1982, are SET ASIDE. Criminal Cases Nos. 942, 943 and 944 are REINSTATED and REMANDED to the trial court for further proceedings. SO ORDERED. G.R. No. L-43790 December 9, 1976 PEOPLE OF THE PHILIPPINES, petitioner, vs. THE CITY COURT OF SILAY, ERNESTO DE LA PAZ, PACIFICO SENECIO, JR. y SEBUSA, ROMEO MILLAN y DELEJERO and WILFREDO JOCHICO y MAGALONA, respondents. Acting Solicitor General Hugo E. Gutierrez, Jr., Assistant Solicitor General Octavio R. Ramirez and Solicitor Enrique M. Reyes for petitioner. Hilado, Hagad & Hilado as private prosecutors. Benjamin Z. Yelo, Sr. for private respondent Romeo Millan. Ciceron Severino and Emeterio Molato for other private respondents.

MUOZ PALMA, J.: This is a Petition for Review jointly filed by the City Fiscal of Silay City, Marcelino M. Paviera, and the Law Offices of Hilado, Hagad & Hilado, the latter as private prosecutors, praying that an order of the City Court of Silay dated December 19, 1975, issued by Judge Reynaldo M. Alon, dismissing Criminal Case No. 7124-C entitled "People vs. Ernesto de la Paz, et al." be set aside and that respondent court be directed to continue with the trial of the aforementioned case. * In compliance with Our Resolution of July 21, J976, the Office of the Solicitor General filed its comment on October 13, 1974, joining the Petitioner's prayer that the order of respondent court of December 19, 1975, be reversed and the case remanded for further proceedings. The record shows that private respondent herein, Ernesto de la Paz, Pacifico Senecio, Jr. y Sebusa Romeo Millan y Delejero and Wilfredo Jochico y Magalona, were charged with "falsification by private individuals and use of falsified document" under Par. 2, Article 172 of the Revised Penal Code, alleged to have been committed as follows. That sometime on January 4, 1974, at Hawaiian-Philippine Company, Silay City, Philippines, and within the jurisdiction of this Honorable Court, the accused Ernesto de la Paz, overseer of Hda. Malisbog belonging to Deogracias de la Paz, and the other three accused, scalers of Hawaiian-Philippine Company, with intent of gain and to cause damage by conniving, cooperating and mutually helping one another did then and there wilfully, unlawfully and feloniously alter or falsify the sugar cane weight report card or "tarjeta", a private document showing the weight of sugarcane belonging to Deogracias de la Paz, particularly those loaded in cane cars Nos. 1686, 1743 and 1022 by increasing the total actual weight of 22.005 tons to 27.160 tons for said three cane cars, thereby causing damage to the central and other cane planters of about 8.68 piculs of sugar valued in the total amount of P618.19, to the damage and prejudice of Hawaiian Central and other sugarcane planters adhered thereto in the aforestated amount of P618.19. IN VIOLATION OF PARAGRAPH 2, ART. 172, R.P.C. (p. 14, rollo) Evidence was presented by the prosecution showing that: On January 4, 1974, accused Pacifico Senecio, Jr. Romeo Millan and Wilfredo Jochico who were then scalers on duty that day at the Hawaiian-Philippine Company, weighed cane cars Nos. 1743,1686 and 1022 loaded with sugar canes belonging to Deogracias de la Paz. The weight of the sugar canes were reflected on the weight report cards (H.P. Co. Lab. Form No. 1) or "tarjetas" showing that for car No. 1743 8.920 tons (Exhibit "B1"), for Car No. 1686 8.970 tons (Exhibit "C-1") for car No. 1022 8.875 tons or a total weight of 26.765 tons. However, they did not submit said "tarjetas" to the laboratory section, instead, they substituted "tarjetas" showing a heavier weight for car No. 1743 10.515 tons (Exhibit "B"), car No. 1686 10.525 tons (Exhibit "C") and car No. 1022 10.880 tons (Exhibit "D") with a total of 27.160 tons or an additional of 5.155 tons. These were the "tarjetas" submitted to the laboratory section. Exhibits "B-1", "C-1" and "D-1" were taken later by the prosecution witness PC Sgt. Rogelio Sevilla from the wife of Pacifico Senecio, Jr. (pp. 15-16, rollo, Order of December 19, 1975). After the prosecution had presented its evidence and rested its case, private respondents moved to dismiss the charge against them on the ground that the evidence presented was not sufficient to establish their guilt beyond reasonable doubt. Acting on this motion, respondent court issued its order of December 19, 1975, dismissing the

case with costs de oficio principally on the ground that the acts committed by the accused as narrated above do not constitute the crime of falsification as charged. Reasoning out his order, Judge Alon said: To be convicted under paragraph 2, Article 172, an accused should have committed one of the eight acts of falsification enumerated under Article 171, R.P.C. Is the act of substituting the "tarjetas" with higher cane weight for the ones with lower cane weight fall under one of the acts enumerated. After going over the acts of falsification one by one and trying to correlate the act of the accused with each of them, the Court finds that the said act could not possibly be placed under any of them. Inclusio unius est exclusio alterius, the inclusion of one is the exclusion of the other. Following this maxim, we cannot just include the act of substitution as among those acts enumerated under Article 171. And, under the rule of statutory construction, penal laws should be liberally construed in favor of the accused. This Court, therefore, is of the opinion that the accused have not committed the act of falsification with which they are charmed. Obviously, it follows that there could be no use of falsified document since there is no falsified document. The imputed acts of the accused in making the substitution, if true, is repugnant to the human sense of right and wrong. But, however reprehensible the act may be, it is not punishable unless there is a showing that there is a law which defines and penalizes it as a crime. Unless there be a particular provision in the Penal Code or Special Law that punishes the act, even if it be socially or morally wrong, no criminal liability is incurred by its commission. (U.S. vs. Taylor, 28 Phil. 599) xxx xxx xxx

Fiscal but notwithstanding said opposition, the trial court dismissed the case on the ground that Pedro Miguel was a mere agent of the true owner of the ring and therefore not the real offended party. The Assistant Provincial Fiscal appealed to this Court, but the Solicitor General moved for the dismissal of the appeal on the ground that it would place the accused in double jeopardy, and the Court agreed with the Solicitor General, stating that it cannot be seriously questioned that the trial court had grievously erred in his conclusion and application of the law, and in dismissing outright the case; however, the error cannot now be remedied by an appeal because it would place the accused in double jeopardy. (per Eugenio Angeles, J., 25 SCRA 823,826) In the earlier case of Catilo vs. Hon. Abaya, May 14, 1954, petitioner Catilo was charged with murder before the Court of First Instance of Batangas presided by respondent Judge. Petitioner was arraigned and after the prosecution had rested its case petitioner moved for the dismissal of the charge for insufficiency of evidence. This motion was granted by the Judge and his order was promulgated in open court to the accused. Later in the day, Judge Abaya set aside his order of dismissal motu proprio and scheduled the case for continuation of the trial on specific dates. A motion for reconsideration was filed by the defense counsel but because respondent Judge failed to take action, the accused filed an original action for certiorari with this Court. In granting relief to petitioner Catilo, the Court, through Justice Marcelino R. Montemayor, held: From whatever angle we may view the order of dismissal Annex "A", the only conclusion possible is that it amounted to an acquittal. Whether said acquittal was due to some "misrepresentation of facts" as stated in the order of reconsideration, which alleged misrepresentation is vigorously denied by the defendant-petitioner, or to a misapprehension of the law or of the evidence presented by the prosecution, the fact is that it was a valid order or judgment of acquittal, and thereafter the respondent Judge himself advised the accused in open court that he was a free man and could not again be prosecuted for the same offense. The inherent powers of a court to modify its order or decision, under section 5, Rule 124 of the Rules of Court claimed for the respondent to set aside his order of dismissal, does not extend to an order of dismissal which amounts to a judgment of acquittal in a criminal case; and the power of a court to modify a judgment or set it aside before it has become final or an appeal has been perfected, under section 7, Rule 116 of the Rules of Court, refers to a judgment of conviction and does not and cannot include a judgment of acquittal. In conclusion, we hold that to continue the criminal case against the petitioner after he had already been acquitted would be putting him twice in jeopardy of punishment for the same offense. ... (94 Phil. 1017) The cases cited by the Acting Solicitor General are not applicable to the situation now before Us because the facts are different. In Co Te Hue vs. Judge Encarnacion , 94 Phil. 258, the case was dismissed provisionally with the express consent of the accused. The same occurred in People vs. Togle, 105 Phil. 126 there was a provisional dismissal upon express request of the counsel for the accused, In Gandicela vs. Lutero, 88 Phil. 299, it was the accused who asked for the dismissal of the case because the private prosecutor was not in court to present the prosecution's evidence and the Municipal Court of the City of Iloilo dismissed the case without prejudice to the refiling of the charge against the accused. 1 In People vs. Romero, 89 Phil. 672, the dismissal was made at the instance of the accused because the prosecution was also not ready with its evidence. The case of People vs. Belosillo, 9 SCRA 836, is not applicable either, because the order of dismissal of the Information was made before arraignment, hence, the accused was not yet placed in jeopardy of punishment for the offense charged. In the case of the herein respondents, however, the dismissal of the charge against them was one on the merits of the case which is to be distinguished from other dismissals at the instance of the accused. All the elements of double jeopardy are here present, to wit: (1) a valid information sufficient in form and substance to sustain a conviction of the crime charged, (2) a court of competent jurisdiction, and (3) an unconditional dismissal of the complaint after the prosecution had rested its case, amounting to the acquittal of the accused. The dismissal being one on the merits, the doctrine of waiver of the accused to a plea of double jeopardy cannot be invoked.

Wherefore, the motion is hereby granted and the case dismissed with costs de oficio ... (pp. 17-18, rollo) In their comment on this Petition, private respondents claim that there was no error committed by respondent court in dismissing the case against them for insufficiency of evidence and that for this Court to grant the present petition would place said respondents in double jeopardy. On the other hand, the People asserts that the plea of double jeopardy is not tenable inasmuch as the case was dismissed upon motion of the accused, and the dismissal having been made with their consent, they waived their defense of double jeopardy, citing various cases in support thereof. (pp. 58-59, rollo, Comment of the Solicitor General) We disagree with the position taken by the Acting Solicitor General Hugo E. Gutierrez, Jr. that the plea of double jeopardy is not available in the instant situation. It is true that the criminal case of falsification was dismissed on motion of the accused; however, this was a motion filed after the prosecution had rested its case, calling for an appreciation of the evidence adduced 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. Thus, in People vs. Acosta, L-23657, October 29, 1968, this Court dismissed an appeal taken by the People against an order of the Court of First Instance of Ilocos Norte dismissing a criminal case upon motion of the accused after the presentation of evidence by the prosecution as such appeal if allowed would place the accused in double jeopardy. There the accused was charged with estafa by obtaining from Pedro Miguel a ring valued at P16,500.00 and issuing a check for $5,000.00 in Payment thereof which turned out later to be counterfeit to the damage and prejudice of said Pedro Miguel in the aforementioned amount of P16,500.00. After the presentation of the evidence of the prosecution, the accused moved to dismiss the case on the ground that the evidence showed that the ring belonged to somebody else, Banang Jaramillo, and not to Pedro Miguel as alleged in the information and that the element of damage was absent. This motion was opposed by the Assistant Provincial

It is clear to Us that the dismissal of the criminal case against the private respondents was erroneous. As correctly stated in the Comment of the Acting Solicitor General, the accused were not charged with substitution of genuine "tarjetas" with false ones. The basis for the accusation was that the accused entered false statements as to the weight of the sugar cane loaded in certain cane cars in "tarjetas" which were submitted to the laboratory section of the company. The act of making a false entry in the "tarjetas" is undoubtedly an act of falsification of a private document, the accused having made untruthful statements in a narration of facts which they were under obligation to accomplish as part of their duties- Ernesto de la Paz, as overseer of Hda. Malisbog, and the other accused as scalers of the offended party, the Hawaiian-Philippine Company, thereby causing damage to the latter. However erroneous the order of respondent Court is, and although a miscarriage of justice resulted from said order, to paraphrase Justice Alex Reyes in People vs. Nieto, 103 Phil, 1133, such error cannot now be righted because of the timely plea of double jeopardy. In Nieto, the background of the case is as follows: On September 21, 1956, an Information for homicide was filed with the Court of First Instance of Nueva Ecija against Gloria Nieto who, upon arraignment pleaded guilty to the charge but -notwithstanding that plea, the trial judge acquitted her on the Page 254 ground that although the accused was a minor "over 9 and under 15 years old" the Information failed to allege that she acted with discernment. Thereafter the prosecution filed another Information for the same offense stating therein that the accused Gloria Nieto was "a child between 9 and 15 years" and alleging in express terms that she acted with discernment. The defense filed a motion to quash this second Information on grounds of double jeopardy, and the trial court already presided by another Judge, Hon. Felix V. Makasiar, now Justice of this Court, granted the motion. The prosecution appealed to this Court from said order. In its Decision, the Court dismissed the appeal and sustained the order of then Judge Makasiar, deploring that as a result of a mistaken view taken by the trial judge who acquitted the accused Gloria Nieto despite her plea of guilty there was a miscarriage of justice which cannot be righted and which leaves the Court no choice bat to affirm the dismissal of the second Information for reasons of double jeopardy. 2 We cannot but express Our strong disapproval of the precipitate action taken by Judge Alon in dismissing the criminal case against the private respondents at that stage of the trial. A thorough and searching study of the law, the allegations in the Information, and the evidence adduced plus a more circumspect and reflective exercise of judgment, would have prevented a failure of justice in the instant case. We exhort Judge Alon to take into serious consideration what We have stated so as to avoid another miscarriage of justice. IN VIEW OF THE FOREGOING, We are constrained to DISMISS this Petition of the People. Without pronouncement as to costs. Let copy of this Decision be entered in the personal file of Judge Reynaldo Alon. So Ordered. Teehankee (Chairman), Makasiar, Concepcion, and Martin, JJ., concur.

2 Because People v. Nieto is an unpublished decision and the facts of the case are of unusual interest, We are quoting herein portions of the Decision of the Court: It appears that on September 21, 1956 an information for homicide was filed in said court against Gloria Nieto alleging That on or about the 7th day of May, 1956, in the Municipality of Pearanda, Province of Nueva Ecija, Republic of the Philippines, and within the jurisdiction of this Honorable Court, the above named accused Gloria Nieto, with the intent to kill, did then and there wilfully, criminally and feloniously push one Lolita Padilla, a child eight and one half (8-1/2) years of age, into a deep place of the Pearanda River and as a consequence thereof Lolita Padilla got drowned and died right then and there. Contrary to the provisions of Article 249 of the Revised Penal Code. Upon arraignment, the accused, who was assisted by counsel de oficio, entered a plea of guilty, but the trial judge nevertheless acquitted her of the crime charged on the grounds that she was a minor "over nine and under fifteen years old" and the information failed to allege that she acted with discernment. The prosecution thereafter filed another information for the same offense, the said information stating that the accused Gloria Nieto was "a child between 9 and 15 years old" and alleging in express terms that she acted with discernment. But the defense filed a motion to quash on the ground of double jeopardy, and the court, now presided by another judge, granted the motion. The prosecution appealed; We find the appeal to be without merit. The pivotal question is whether the accused could on her unqualified plea of guilty to the first information, be rightly held answerable for the offense therein charged. Undoubtedly, she could. For the said information avers facts constituting the said offense with nothing therein to indicate that she, as the perpetrator thereof, was exempt from criminal liability because of her age, and her plea of guilty to the information is an unqualified admission of all its material averments. And, indeed, even under the view taken by the trial judge who acquitted her that because she was between the ages of 9 and 15 although that fact does not appear in the information to which she pleaded guilty an allegation that she acted with discernment must be required, that requirement should be deemed amply met with the allegation in the information that she, the accused Gloria Nieto, with the intent to kill, did then and there wilfully, criminally and feloniously push one Lolita Padilla, a child eight and one half (8-1/2) years of age, into a deep place of the Pearanda River and as a consequence thereof Lolita Padilla got drowned and died right then and there. ... As the learned trial judge, Hon. Felix V. Makasiar, who quashed the second information, says in his order: The allegations in the information that the accused "with intent to kill, did then and there wilfully, criminally and .feloniously push one Lolita Padilla ... into a deep place in Pearanda River and that as a consequence thereof, Lolita Padilla got drowned and died right then and there", and her plea of guilty thereto, preclude the existence of any one of the justifying or exempting circumstances enumerated in Article 11 and 12 of the Revised Penal Code including Paragraph 3 of Article 12. The said allegation can only mean that the accused, who is over 9 but below 15 years of age, was not justified in killing the victim nor was she exempted from any criminal responsibility therefor. Otherwise, the term 'criminal and feloniously would have no meaning at all. To require the addition of the ritualistic phrase 'that she acted with discernment' would be superfluous. Under a different view, substances would sacrificed to the tyranny of form.

Footnotes * We treated this Petition as a Special Civil Action after all parties concerned had submitted their respective pleadings as comments to the Petition. 1 See People vs. Salico, 84 Phil. 722 & People vs. Obsania, 23 SCRA 1249.

... To insist on the necessary of including the phrase 'she acted with discernment in the information for the purpose of conveying said in order to make the information sufficient, is to confess a bankcruptcy is language or vocabulary and to deny that the same Idea can be expressed in other terms. One need not a dabbler in philology or semantics to be able to appreciate the import or connotation or significance of the phrase "with intent to kill ... wilfully, criminally and feloniously" made more emphatic by "contrary to the provisions of Article 249." The contrary view nullifies the existence or value or utility of synonymous in the communication of Ideas.'" See also People vs. Inting, L-41959, March 31, 1976 70 SCRA 289. G.R. No. L-54110 February 20, 1981 GENEROSO ESMEA and ALBERTO ALBA, petitioners, vs. JUDGE JULIAN B. POGOY, City Court of Cebu City, Branch III, PEOPLE OF THE PHILIPPINES and RICARDO B. TABANAO, as Special Counsel, Office of the City Fiscal, Cebu City, respondents.

Respondent judge provisionally dismissed the case as to the four accused who were present because it "has been dragging all along and the accused are ready for the hearing" but the fiscal was not ready with his witness. The court noted that there was no medical certificate indicating that the complainant was really sick. The case was continued as to the fifth accused who did not appear at the hearing. His arrest was ordered (p. 23, Rollo). Twenty-seven days later, or on September 12, 1979, the fiscal filed a motion for the revival of the case. He attached to his motion a medical certificate under oath attesting to the fact that Father Tibudan was sick of influenza on August 16, 1979. The fiscal cited the ruling that a provisional dismissal with the conformity of the accused lacks the impress of finality and, therefore, the case could be revived without the filing of a new information (Lauchengco vs. Alejandro, L-49034, January 31, 1979, 88 SCRA 175). The accused did not oppose the motion. Respondent judge granted it in his order of October 8, 1979 (p. 26, Rollo). On October 24, 1979, Esmea and Alba filed a motion to dismiss the case on the ground of double jeopardy. They pointed out that they did not consent to the provisional dismissal of the case. Hence, the provisional dismissal amounted to an acquittal which placed them in jeopardy. Its revival would place them in double jeopardy. The fiscal opposed the motion. He called the court's attention to the fact that Father Tibudan had appeared in court several times but the hearing was not held. The court denied the motion to dismiss. That order denying the motion to dismiss is assailed in this special civil action of certiorari. The Solicitor General agrees with the petitioners that the revival of the case would place the accused in double jeopardy since the provisional dismissal of the case without their consent was in effect an acquittal. The rule on double jeopardy (non bis in Idem or not twice for the same) is found in section 22, Article IV Bill of Rights) of the Constitution which provides that "no person shall be twice put in jeopardy of punishment for the same offense." This is complemented by Rule 117 of the Rules of Court which provides as follows: SEC. 9. Former conviction or acquittal or former jeopardy. When a defendant shall have been convicted or acquitted, or the case against him dismissed or otherwise terminated without the express consent of the defendant, by a court of competent jurisdiction, upon a valid complaint or information or other formal charge sufficient in form and substance to sustain a conviction, and after the defendant had pleaded to the charge, the conviction or acquittal of the defendant or the dismissal of the case shall be a bar to another prosecution for the offense charged, or for any attempt to commit the same or frustration thereof, or for any offense which necessarily includes or is necessarily included in the offense charged in the former complaint or information. In order that legal jeopardy may exist, there should be (a) a valid complaint or information (b) before a court of competent jurisdiction and (c) the accused has been arraigned and has pleaded to the complaint or information. When these three conditions are present, the acquittal or conviction of the accused or the dismissal or termination of the case without his express consent constitutes res judicata and is a bar to another prosecution for the offense charged, or for any attempt to commit the same or frustration thereof, or for any offense which necessarily includes or is included therein (4 Moran's Comments on the Rules of Court, 1980 Ed., p. 240). Previous acquittal (autrefois acquit), previous conviction (autrefois convict) or the dismissal or termination of the case without his consent precludes his subsequent indictment for the same offense as defined in section 9.

AQUINO, J.: This case poses the issue of whether the revival of a grave coercion case, which was provisionally dismissed (after the accused had been arraigned) because of complainant's failure to appear at the trial, would place the accused in double jeopardy, considering their constitutional right to have a speedy trial. Petitioners Generoso Esmea and Alberto Alba and their co-accused, Genaro Alipio, Vicente Encabo and Bernardo Villamira were charged with grave coercion in the city court of Cebu City for having allegedly forced Reverend Father Tomas Tibudan of the Jaro Cathedral, Iloilo City to withdraw the sum of five thousand pesos from the bank and to give that amount to the accused because the priest lost it in a game of cards. The case was calendared on October 4, 1978 presumably for arraignment and trial. Upon the telegraphic request of Father Tibudan the case was reset on December 13, 1978. Because Esmea and Alba were not duly notified of that hearing, they were not able to appear. The two pleaded not guilty at their arraignment on January 23, 1979. No trial was held after the arraignment because complainant Father Tibudan requested the transfer of the hearing to another date. In the meantime, the fiscal lost his record of the case. So, the hearing scheduled on June 18, 1979 was cancelled at his instance. On that date, respondent judge issued an order setting the trial "for the last time on August 16, 1979, at 8:30 o'clock in the morning" (p. 21, Rollo). When the case was called on that date, the fiscal informed the court that the private prosecutor received from complainant Father Tibudan a telegram stating that he was sick. The counsel for petitioners Esmea and Alba opposed the cancellation of the hearing. They invoked the right of the accused to have a speedy trial. Their counsel told the court: " ... we are now invoking the constitutional right of the accused to a speedy trial of the case. ... We are insisting on our stand that the case be heard today; otherwise, it will (should) be dismissed on the ground of invoking (sic) the constitutional right of the accused particularly accused Alberto Alba and Generoso Esmea (pp. 50 and 52, Rollo).

In the instant case, we hold that the petitioners were placed in jeopardy by the provisional dismissal of the grave coercion case. That provisional dismissal would not have place the petitioners in jeopardy if respondent judge had taken the precaution of making sure that the dismissal was with their consent. In this case, it is not very clear that the petitioners consented to the dismissal of the case. It is the practice of some judges before issuing an order of provisional dismissal in a case wherein the accused had already been arraigned to require the accused and his counsel to sign the minutes of the session or any available part of the record to show the conformity of the accused or his lack of objection to the provisional dismissal. The judge specifies in the order of provisional dismissal that the accused and his counsel signified their assent thereto. That procedure leaves no room for doubt as to the consent of the accused and precludes jeopardy from attaching to the dismissal. The petitioners were insisting on a trial. They relied on their constitutional right to have a speedy trial. The fiscal was not ready because his witness was not in court. Respondent judge on his own volition provisionally dismissed the case. The petitioners did not expressly manifest their conformity to the provisional dismissal. Hence, the dismissal placed them in jeopardy. Even if the petitioners, after invoking their right to a speedy trial, moved for the dismissal of the case and, therefore, consented to it, the dismissal would still place them in jeopardy. The use of the word "provisional" would not change the legal effect of the dismissal (Esguerra vs. De la Costa, 66 Phil. 134; Gandicela vs. Lutero, 88 Phil. 299). If the defendant wants to exercise his constitutional right to a speedy trial, he should ask, not for the dismissal, but for the trial of the case. After the prosecution's motion for postponement of the trial is denied and upon order of the court the fiscal does not or cannot produce his evidence and, consequently, fails to prove the defendant's guilt, the court upon defendant's motion shall dismiss the case, such dismissal amounting to an acquittal of the defendant" (4 Moran's Comments on the Rules of Court, 1980 Ed., p. 202, citing Gandicela vs. Lutero, 88 Phil. 299, 307 and People vs. Diaz, 94 Phil. 714-717). The dismissal of a criminal case upon motion of the accused because the prosecution was not prepared for trial since the complainant and his witnesses did not appear at the trial is a dismissal equivalent to an acquittal that would bar further prosecution of the defendant for the same offense (Salcedo vs. Mendoza, L-49375, February 28, 1979, 88 SCRA 811; Lagunilia vs. Hon. Reyes, etc. and Motas, 111 Phil. 1020 citing People vs. Tacneng, 105 Phil. 1298 and People vs. Robles, 105 Phil. 1016. See Taladua vs. Ochotorena, L-25595, February 15, 1974, 55 SCRA 528; Acebedo vs. Sarmiento, L-28025, December 16, 1970, 36 SCRA 247; Baesa vs. Provincial Fiscal of Camarines Sur, L-30363, January 30, 1971, 37 SCRA 437; People vs. Cloribel, 120 Phil. 775; People vs. Abao 97 Phil. 28; People vs. Labatete, 107 Phil. 697). WHEREFORE, the order of respondent judge dated October 8, 1979, reviving the criminal case against the petitioners, and his order of December 14, 1979, denying petitioners' motion to dismiss, are reversed and set aside. No costs. SO ORDERED. Facts: Petitioners Esmea and Alba were charged with grave coercion in the Court of Cebu City for allegedly forcing Fr. Thomas Tibudan to withdraw a sum of money worth P5000 from the bank to be given to them because the priest lost in a game of chance. During arraignment, petitioners pleaded Not Guilty. No trial came in after the arraignment due to the priests request to move it on another date. Sometime later Judge Pogoy

issued an order setting the trial Aug.16,1979 but the fiscal informed the court that it received a telegram stating that the complainant was sick. The accused invoked their right to speedy trial. Respondent judge dismissed the case because the trial was already dragging the accused and that the priests telegram did not have a medical certificate attached to it in order for the court to recognize the complainants reason to be valid in order to reschedule again another hearing. After 27 days the fiscal filed a motion to revive the case and attached the medical certificate of the priest proving the fact that the priest was indeed sick of influenza. On Oct.24,1979, accused Esmea and Alba filed a motion to dismiss the case on the ground of double jeopardy.

Issue: Whether or Not the revival of grave coercion case, which was dismissed earlier due to complainants failure to appear at the trial, would place the accused in double jeopardy

Held: Yes, revival of the case will put the accused in double jeopardy for the very reason that the case has been dismissed already without the consent of the accused which would have an effect of an acquittal on the case filed. The dismissal was due to complainants incapability to present its evi dence due to non appearance of the witnesses and complainant himself which would bar further prosecution of the defendant for the same offense. For double jeopardy to exist these three requisites should be present, that one, there is a valid complaint or information filed second, that it is done before a court of competent jurisdiction and third, that the accused has been arraigned and has pleaded to the complaint or information. In the case at bar, all three conditions were present, as the case filed was grave coercion, filed in a court of competent jurisdiction as to where the coercion took place and last the accused were arraigned and has pleaded to the complaint or the information. When these three conditions are present then the acquittal, conviction of the accused, and the dismissal or termination of the case without his express consent constitutes res judicata and is a bar to another prosecution for the offense charged. In the case, it was evidently shown that the accused invoked their right to a speedy trial and asked for the trial of the case and not its termination which would mean that respondents had no expressed consent to the dismissal of the case which would make the case filed res judicata and has been dismissed by the competent court in order to protect the respondents as well for their right to speedy trial which will be equivalent to acquittal of the respondents which would be a bar to further prosecution. G.R. No. L-69270 October 15, 1985 GERRY TOYOTO, EDDIE GONZALES, DOMINADOR GABIANA AND REY CINCO, petitioners, vs. HON. FIDEL RAMOS, CAPTAIN ALVAREZ AND CAPTAIN BALLEN, respondents.

ABAD SANTOS, J: This is a petition for habeas corpus and the problem posed is whether the State can "reserve" the power to rearrest the petitioners even after they had been acquitted by a court of competent jurisdiction for the offense for which they had been previously arrested. The following are taken from the petition and have not been contradicted by the respondents: Gerry Toyoto, Eddie Gonzales and Dominador Gabiana belong to a group called the "Urban Poor" which conducted a march, demonstration and rally along Northbay Boulevard in Navotas, Metro Manila, on October 23, 1983.

Subsequently, Toyoto, Gonzales and Gabiana (among others) were accused of violating Presidential Decree No. 1835 (Codifying the Various Laws on Anti-Subversion and Increasing the Penalties for Membership in Subversive Organizations [January 16, 1981]) in Criminal Case No. 1496-MN of the Regional Trial Court of Malabon. No bail was recommended for their provisional liberty. On July 9, 1984, the petitioners were arraigned and they pleaded not guilty to the offense charged. The prosecution was able to present only one witness despite repeated postponements. This prompted the accused to move for the dismissal of the case. In granting the motion, Judge Vicente B, Echaves, Jr. said inter alia: 1. Since on cross-examination, prosecution witness Dagui testified that the primary reason of the marching group was to air their grievances to the government to allow them to transfer to the Dagat- dagatan government project for squatters, it is doubtful that the marchers had, as alleged in the information, the 'intention to undermine the faith of the people in the duly constituted government and authorities of the Republic of the Philippines'; 2. Since Dagui testified on cross-examination that before the dispersal of the marchers there were no speeches, and he did not see accused Toyoto, Gabiana or Gonzales deliver speeches, there is no proof at all of the allegation in the information that the accused "uttered speeches tending to discredit the government; 3. Considering the testimony of witness Dagui on direct examination that during that rally, accused Eddie Boy Gonzales was holding a placard, but that he did not remember the words thereon, and that he did not see co- accused Dominador Gabiana and Gerry Toyoto holding a placard, there is no proof of the allegation in the information that said accused did 'use and display placards, banners and other subversive leaflets; 4. It is alleged IN the information that the accused held a public rally 'without securing the necessary permit from the proper authorities' but the 'proper authorities' were not presented to prove this allegation. In any event, considering that, as admitted by witness Dagui, the primary purpose of the marchers was to air their grievances to the government to allow them to transfer to the Dagat-dagatan government project for squatters, it is doubtful if the 'proper authorities' could withhold the permit for such a rally and thereby render violence to the Constitutional 'right of the people peaceably to assemble and petition the government for redress of grievances. (Rollo, pp. 8-9.) The order of dismissal was dated November 9, 1984, but on December 5, 1984, when the petition for habeas corpus was filed, the respondents had not released and they refused to release the petitioners on the ground that a Preventive Detention Action had been issued against them. It is to be noted that the petitioners had been in detention for over one year for they were arrested on October 23, 1983. We thus have the sorry spectacle of persons arrested, charged and tried for merely exercising their constitutional rights. And the injury was compounded when the over zealous minions of the government refused to release them even after they had been acquitted by a court of competent jurisdiction because they were covered by a PDA. To be sure it cannot be denied that there was a flagrant violation of human rights. The return filed by the respondents states that petitioners Toyoto, Gonzales and Gabiana were released to their relatives on December 8, 1984, pursuant to the order of the Minister of National Defense. The order (Annex 1) is dated November 30, 1984, and orders the "temporary release" of the petitioners. The respondents pray that the petition be dismissed for having become moot and academic in view of the release of the petitioners from detention.

The petitioners would have their case considered moot and academic only "if their release would be permanent." We sustain the petitioners. Ordinarily, a petition for habeas corpus becomes moot and academic when the restraint on the liberty of the petitioners is lifted either temporarily or permanently. We have so held in a number of cases. But the instant case presents a different situation. The question to be resolved is whether the State can reserve the power to rearrest a person for an offense after a court of competent jurisdiction has absolved him of the offense. An affirmative answer is the one suggested by the respondents because the release of the petitioners being merely "temporary" it follows that they can be re-arrested at anytime despite their acquittal by a court of competent jurisdiction. We hold that such a reservation is repugnant to the government of laws and not of men principle. Under this principle the moment a person is acquitted on a criminal charge he can no longer be detained or rearrested for the same offense. This concept is so basic and elementary that it needs no elaboration. WHEREFORE, the petition is granted; the release of the petitioners is hereby declared to be permanent. No costs. SO ORDERED. G.R. No. 136258

October 10, 2001

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. CARLOS FELICIANO, accused-appellant. VITUG, J.: From being the subject of moral condemnation, the "Kiss of Judas" appears to attain a different dimension in criminal procedure. Indeed, by entering into a "unholy" contract with an accused, so that the latter might betray his partner in crime in exchange for an acquittal, the State demonstrates how far its efforts could go to vindicate crime. That the State should agree to become a party to setting up a premium on "treachery," and that it should reward conduct from which an honorable man would ordinarily recoil with aversion, paradoxically illustrates the perceived necessity of such kind of an arrangement in criminal procedure.1 It is this doggedness of purpose on the part of the State which herein accused-appellant, in one of his assignment of errors, decries "The trial court [has] erred in discharging accused Rodel de la Cruz to be the state witness against co-accused Carlos Feliciano despite strong objections from the defense."2 The accused-appellant, Carlos Feliciano, was a security guard detailed by the Atlantic Security Agency at the Kingsmen building, also popularly known in the small community as the hub of four disco pubs located on four floors of the edifice, in Kalibo, Aklan. He was assigned to the "Superstar" disco pub and his duties ranged from refusing entry to dubious characters to making certain that no customer would leave without first paying his bill. Rodel de la Cruz, a security guard from another agency, the Rheaza Security Agency, was stationed at the parking lot of the same building. In keeping with the nocturnal business hours of the establishments at Kingsmen, the two security guards would report for duty at 7:00 in the evening until the wee hours of the next morning or when the last customer would have by then left the premises. In the early morning of 05 June 1995, Feliciano and de la Cruz centrally figured in the investigation over the grisly death of an unidentified woman whose body was found sprawled in Barangay New Buswang, Kalibo, Aklan.

Finding a dead body at 5:30 in the morning in nearby Barangay Buswang was big news to the small community of Kalibo The radio news about an unidentified lifeless female lying in the Sampaton Funeral Parlor caught the curiosity of Rosalie Ricarto. The dead woman, so described as wearing a red jacket emblazoned with the words "El-Hassan, Kingdom of Saudi Arabia" and maong pants, fit the description of Teresita Fuentes. Rosalie, a rice retailer, shared a stall with Teresita, a vendor of spices, condiments and fruits, at the Yambing Building. Rosalie last saw Teresita on the afternoon of 04 June 1995. Teresita, who regularly went to twice a week to buy goods to sell, was scheduled to leave the following morning of 05 June 1995. According to Rosalie, Teresita, who normally would take the 2:00 a.m. trip to Iloilo, should already be back at Kalibo by about 4:00 p.m. of the same day. But Teresita did not return that afternoon. Rosalie said that Teresita wore pieces of jewelry a necklace, a pair of earrings, a bracelet, four rings and a Seiko wristwatch all of which, except for the timepiece, were eventually recovered. Anna Liza Pronton Fuentes, the daughter of Teresita, was able to identify the bag recovered by Myca Banson from the crime scene, as well as all its t contents, to be those belonging to her mother. Likewise, recovered at the crime scene were twelve P100.00 bills, seven P5.00 bills and the broken windshield of the tricycle owned by Ruben Barte. Turned over to the police by the manager of the Superstar Disco Club was the sum of P1,000.00. The autopsy report showed that whoever bludgeoned the hapless Teresita Fuentes to death had used a blunt instrument, inflicting twelve different wounds on her head and face. The cause of death was noted to be severe hemorrhage secondary to lacerated wounds and skull fracture. On 02 August 1995, an Information was filed against Rodel de la Cruz and Carlos Feliciano 'That on or about the 5th day of June 1995, in the early morning, in Barangay New Buswang, Municipality of Kalibo, Province of Aklan, Republic of the Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating together and mutually helping one another, while armed with a handgun, by means of force and violence, and with intent of gain and without the consent of the owner thereof, did then and there willfully, unlawfully and feloniously take, steal, rob and carry away cash money in the amount of TEN THOUSAND PESOS (P10,000.00), Philippine currency, more or less, belonging to TERESITA FUENTES Y OSORIO, to the damage and prejudice of the owner in the aforesaid amount; that by reason or in the occasion of said robbery, and for the purpose of enabling the accused to take, steal and carry away the aforesaid amount, the above-named accused with intent to kill and conspiring with one another, did then and there willfully, unlawfully and feloniously and with evident premeditation and under the cover of darkness, treacherously attack, assault and wound TERESITA FUENTES Y OSORIO, thereby inflicting upon her mortal wounds, to wit: 1. 2. 3. 4. 5. 6. 7. 8. Lacerated wound about 1 inches in length left chin. Lacerated wound about 1 inch in length left lower lip. Fracture of the left mandible. Fracture of the left upper lateral incisor and the left upper canine. Lacerated wound about 1 inches in length and about 1 in depth left face. Punctured wound in diameter and about 1 inches in depth mid-portion base nose bridge left. Lacerated wound about 2 inches in length and about 1 inches in depth left cheek. Lacerated wound about 1 inch in length left ear medially.

9. 10. 11. 12.

Lacerated wound about inch in length left face near the left ear. Lacerated wound about 1 in length below the left eyebrow. Punctured wound about 1 inch in diameter and about 5 inches in depth left parietal. Skull fracture occiput right.

"as per autopsy report of Dr. Agrelita D. Fernandez, of the Rural Health Unit, Kalibo, Aklan, hereto attached and forming an integral part hereof which wounds directly caused the death of said TERESITA FUENTES Y OSORIO. "That as a result of the criminal acts of the accused, the heirs of the victim suffered actual and compensatory damages in the amount of FIFTY THOUSAND (P50,000.00) PESOS."3 The prosecution sought the discharge of accused Rodel de la Cruz so that the latter could testify against his coaccused Carlos Feliciano. Pending resolution by the trial court on the motion, Carlos Feliciano and Rodel de la Cruz were arraigned on 08 February 1996. The two accused entered a plea of not guilty. On 18 June 1996, the court a quo granted the motion of the prosecution and the name of Rodel de la Cruz, an accused turned state witness, was forthwith stricken off from the Information.4 A detailed account of the incident presented at the trial by the prosecution was narrated by the Office of the Solicitor General. "In the early morning of June 5, 1995, before 2 o'clock, appellant went to the guard post of Dela Cruz to tell the latter to assist him in going after a customer who did not pay the bill. It was not the first time that they had to run after a non-paying customer. Dela Cruz thus accompanied appellant who rented for the purpose a tricycle from its driver, Ruben Barte, who stayed behind. Appellant initially drove but about twenty meters past Kingsmen Building, he asked Dela Cruz to take over while he stayed inside the passenger sidecar of the tricycle. Somewhere between the Ceres and Libacao terminals, appellant alighted from the tricycle after instructing Dela Cruz to stop and wait for him. Appellant subsequently informed Dela Cruz that they shall wait there for the customer they were after. About a half hour later, however, appellant decided to leave the place, apparently because the person he was looking for was nowhere in sight. As they passed Banga, New Washington crossing, they saw a woman walking alone. Appellant waved at her, giving Dela Cruz the impression that they knew each other. Dela Cruz stopped the vehicle, as he was told by appellant, who then jumped out. Drawing his service gun, appellant suddenly held the woman by the neck and at the same time poked his gun at her face. He dragged her towards the tricycle and ordered her to board it. The woman would later be identified as Teresita Fuentes. Dela Cruz was shocked with what appellant did and was at a loss on what to do. Still stricken with panic, Dela Cruz asked appellant what was going on and said he was leaving as he did not want to be part of whatever plans appellant had. Appellant retorted that Dela Cruz was already involved. Dela Cruz was about to alight from the tricycle when appellant poked his gun at him and ordered him to drive. Thinking that appellant was in a position to easily shoot him, Dela Cruz did as he was ordered. "Appellant then instructed Dela Cruz to drive back to the public market. When they reached the junction of Toting Reyes and Roxas Avenues, appellant told Dela Cruz to turn right at Rizal Memorial College of Arts and Trade (RMCAT) They noticed at this point that another tricycle, which came from the direction of Kingsmen Building, was following them. This prompted appellant to order Dela Cruz to turn left at Magdalena Village instead and to drive faster. During the ride, appellant held Fuentes, who was crouching, by her hair, pressing her head down. He also kicked her and struck her head with the butt of his gun whenever she struggled. Dela Cruz

asked appellant to stop hurting Fuentes and to have pity but his entreaties fell on deaf ears. Appellant even threatened to shoot Dela Cruz if he does not stop complaining. 'When they reached New Buswang, they noticed that the other tricycle they saw earlier was still trailing them by about 15 meters. As they approached Magdalena Village after passing Camp Martelino, Fuentes struggled so appellant hit her again. Dela Cruz told appellant to desist from striking her. Appellant did not take kindly to the unsolicited advice and fired his gun in the air. Seeing an opportunity for escape, Dela Cruz suddenly swerved the tricycle towards Magdalena Village until the vehicle toppled over. When the tricycle was lifted from its fallen state, Dela Cruz immediately jumped out of it and ran towards a feeder road leading to the Cooperative Rural Bank. He was resting at the back of the bank for a few minutes when appellant also arrived. Enraged, Dela Cruz this time drew his service firearm and aimed it at appellant, demanding from the latter an explanation why he had to involve him (Dela Cruz). With an assurance that he would own up the responsibility for everything that had happened, appellant was able to calm Dela Cruz down. After returning his service gun to the holster, Dela Cruz headed back to the road. Behind him following was appellant. Then, they saw Barte, from whom appellant rented the tricycle earlier, trying to start the engine thereof. It turned out that it was Barte who was in the other tricycle, driven by Ramon Yael. Appellant assured Barte that he will pay for all the damages of the rented tricycle. "Meanwhile, Dela Cruz went back to Kingsmen Building aboard Yael's tricycle to look for his dancer girlfriend, Myka (or Mika) Banzon (or Vanson), but she was not there. Dela Cruz, with Yael in his tricycle, were about to go to Banzon's boarding house when appellant approached them, insisting that Yael take him first to Magdalena Village. Afraid of appellant, Yael agreed. When they got there, particularly where Barte's tricycle turned over earlier, appellant walked towards a mango tree. Curious, Dela Cruz followed him. Dela Cruz saw appellant hitting Fuentes on the head with his gun. She was lying down face up, groaning. Dela Cruz admonished and pushed appellant away, telling him to have pity on Fuentes. Since he did not want to get involved further nor did he want to. see any more of what appellant was up to, Dela Cruz walked back to the tricycle He took a last look back and saw appellant getting something from the pocket of Fuentes and putting it inside the pocket of his chaleco. Soon enough, appellant caught up with Dela Cruz and Yael as they were about to leave and they all went back to Kingsmen Building. "Dela Cruz finally found Banzon at the third floor of the building and informed her that he was going to bring her home already. She passed by the ladies' room while he stood watch outside. Appellant arrived and told Dela Cruz and Banzon that they had to talk inside the ladies' room. He was giving Dela Cruz and Banzon P600.00 each, but they declined to accept the money. Appellant threatened Dela Cruz not to squeal whatever he knows or appellant will kill him and his family. When appellant insisted in giving the money, Dela Cruz took it only to place it on the sink, then, he and Banzon left. "Dela Cruz and Banzon were leaving for her boarding house aboard Yael's tricycle when appellant caught up with them again and ordered Yael to first take him to Ceres terminal. As they passed the Tumbokan Memorial Hospital, they came across Barte driving his tricycle. After signaling for Barte to stop, appellant gave him money. Dela Cruz and Banzon quickly transferred to Barte's tricycle since Yael still had to take appellant to the terminal. In the course of the transfer to the other tricycle, appellant placed something inside the pocket of Dela Cruz who thought nothing of it as he was in a hurry to go home. In Banzon's boarding house, Dela Cruz found out that what appellant had put in his pocket was a blood-stained necklace wrapped in a piece of paper. Banzon also showed him a bag she found at the place where Barte's tricycle turned turtle. Dela Cruz planned to return the necklace and the bag the next day. "In the evening of June 5, 1995, Dela Cruz reported for work. Appellant asked him for the necklace so that he could pawn it. Dela Cruz, however, was unable to give the necklace back because in the morning of June 6, 1995, the police raided the boarding house of Banzon. Among those confiscated by the police was his wallet where he placed the necklace. The police invited Dela Cruz to the police station to shed light on what he knew

about a murder committed in Magdalena Village. The police had earlier confirmed an anonymous call that a dead woman was found at New Buswang. Twelve 100-peso bills were found at the scene, as well as a broken windshield that was traced to the tricycle rented by Barte to appellant. The dead person was identified as Fuentes by her daughter, Analiza Fuentes Pronton. Thus, Dela Cruz revealed everything that appellant had done. The police asked Dela Cruz to go with them to Lalab, Bataan where appellant was arrested. Appellant was then brought to the Kalibo Police Station for investigation."5 Carlos Feliciano, in his testimony, denied the asseverations of state witness de la Cruz. He claimed that the accusations were motivated out of pure spite and revenge borne of the hostility between them due to workrelated differences. An altercation arose between him and de la Cruz two months before the incident, on 06 April 1995, when a customer had complained to the Kingsmen Building manager that the toolbox of his tricycle, parked near the building, was missing. The manager then ordered Feliciano to go to the parking lot and summon de la Cruz. Feliciano r reported back to say that he did not find de la Cruz in his designated post, a fact that de la Cruz later resented. The next incident happened the following month. On the evening of 01 May 1995, Myca Banson, the live-in girlfriend of de la Cruz, was to be "taken out" by a customer. Feliciano upon orders of the management, refused de la Cruz entry within the premises of the pub house, in order to avoid any possible trouble, which culminated in a physical tussle between the two men and ended with de la Cruz aiming his gun at Feliciano. The third incident occurred when a motorcycle parked at the Kingsmen parking lot could not be located and de la Cruz again was not at his post. Feliciano reported the matter to the manager and, two days later, de la Cruz was fired from work. Feliciano admitted having seen de la Cruz at about 9:30 on the evening of 04 June 1995 escorting Myca Banson to the pubhouse. De la Cruz stayed at the billiard house fronting Kingsmen, while waiting for Myca to finish work, often at 4:00 in the early morning of the next day. Feliciano said that he knew Ramon Barte, the driver, being a habitue of the Kingsmen premises. It was Barte who would often fetch Rodel de la Cruz and Myca Banson from work during early mornings. The defense placed at the stand two additional witnesses. Eduardo Magsangya, a cigarette vendor at the Ceres terminal, testified that on the late evening of 04 June 1995, de la Cruz went to see him at the Ceres Terminal to inquire whether Teresita Fuentes had already arrived. Magsangya responded in the negative. De la Cruz returned to the terminal looking for Teresita four times that night. Magsangya knew Teresita as being a biweekly passenger of the 2:00 a.m. bus for Iloilo and de la Cruz as a security guard at Kingsmen where he would at times sell his wares. Jefferson Arafol, a pahinante of Ideal Trucking, testified that at approximately 2:30 on the early morning of 05 June 1995, he and truck driver "Oca"," were transporting coconut lumber to Iloilo, when, at the vicinity of Magdalena Village, they spotted a tricycle running at high speed, eventually overtaking them. Its fast pace caused the vehicle to turn turtle. When Arafol approached, the tricycle diver, Rodel de la Cruz, pointed a gun at him and told him not to come any closer. Arafol was acquainted with Rodel de la Cruz and Carlos Feliciano because he frequented Kingsmen on Sundays after getting his salary. The pahinante saw two more persons with de la Cruz, one male and the other female Arafol was certain that the male companion of de la Cruz was not Carlos Feliciano. While de la Cruz was pointing his gun at him, his male companion was dragging an unidentified woman towards the nearby mango tree. When the trial concluded, the Regional Trial Court of Kalibo, Aklan, found for the prosecution and pronounced accused Carlos, Feliciano guilty beyond reasonable doubt of the crime of Robbery with Homicide and r sentenced him to suffer the extreme penalty of death "WHEREFORE, finding the accused CARLOS FELICIANO Y MARCELINO guilty beyond reasonable doubt as principal by direct participation of the crime of Robbery with Homicide defined and penalized under paragraph 1 of Article 294 x x x, with three aggravating circumstances, the court hereby imposes upon the said accused the supreme penalty of DEATH and to indemnify the heirs of Teresita Fuentes the sum of P50,000.00. "The caliber .38 revolver Squires Bingham with SN #14223 (Exhibit J) used by Feliciano is hereby forfeited and confiscated in favor of the government to be disposed in accordance with law.

"Costs against the accused."6 In an automatic review before this tribunal, appellant Carlos Feliciano raised the following assignment of errors "I. "THE TRIAL COURT ERRED IN DISCHARGING THE ACCUSED RODEL DE LA CRUZ TO BE THE STATE WITNESS AGAINST CO-ACCUSED CARLOS FELICIANO DESPITE STRONG OBJECTIONS FROM THE DEFENSE. "II. "THE TRIAL COURT ERRED IN RELYING HEAVILY ON THE WELL-REHEARSED TESTIMONY OF PROSECUTION WITNESSES. "III 'THE TRIAL COURT ERRED IN CONVICTING ACCUSED-APPELLANT CARLOS FELICIANO FOR THE CRIME CHARGED IN THE INFORMATION DESPITE THE INSUFFICIENCY OF EVIDENCE AGAINST HIM."7 The Court is inclined to agree with appellant that state witness Rodel de la Cruz appears to be far from being the inculpable young man who has simply been an unwitting and reluctant accomplice to a gruesome crime. Several incidents militate against his innocence. The events, related by him, make tenuous the purported threat and intimidation exerted by appellant over him. The behavior of Rodel de la Cruz during and immediately after the crime could not be that of a threatened, frightened man. If he indeed wanted to escape, he had in his possession his own service gun, and he was in control of the tricycle. He had enough advantage and chances to escape, if he really wanted to, from Feliciano who was at that time engrossed at restraining a struggling victim. In fact, it was de la Cruz who was caught in the possession of the dead woman's necklace. Another damning evidence against de la Cruz was the letter introduced by police inspector Winnie Jereza, Chief of Intelligence of the Philippine National Police of Kalibo, Aklan, who, after taking the witness stand for the prosecution, testified for the defense. The letter, dated 02 June 1995, came from one Roger R. Zaradulla, proprietor of the Rheaza Security Agency, addressed to SPO3 Gregorio F. Ingenerio of the Kalibo Police Station, to the effect that the detail order of Rodel de la Cruz to the Kingsmen Disco pub had expired as of 31 May 1995. According to Zaradulla, de la Cruz was nowhere to be found and his whereabouts were unknown. Apprehensive that de la Cruz had gone on AWOL without first surrendering to the agency the firearm issued to him, Zaradulla sought the arrest of de la Cruz by the police. The evident attempt, nevertheless, of the accused turned state witness to mitigate his own culpability did not adversely affect his discharge nor did it render completely weightless the evidentiary value of his testimony. The rules of procedure allowing the discharge of an accused to instead be a witness for the state8 is not a home grown innovation but is one with a long and interesting history. It has its origins in the common law of ancient England where faithful performance of such an agreement with the Crown could entitle a criminal offender to an equitable right to a recommendation for executive clemency. The practice, soon recognized through widespread statutory enactments in offer jurisdictions, finally has found its way to our own criminal procedure in a short and compact military General Order No. 58 issued in 1900. Its adoption highlights the emphasis

placed by the new system on the presumption of innocence in favor of the accused, on the requirement that the State must first establish its case beyond a reasonable doubt before an accused can be called upon to defend himself, and on the proscription against compelling an accused to be a witness against himself as well as against drawing inferences of guilt from his silence.9 Underlying the rule is the deep-lying intent of the State not to let a crime that has been committed go unpunished by allowing an accused who appears not to be the most guilty to testify, in exchange for an outright acquittal, against a more guilty co accused. It is aimed at achieving the greater purpose of securing the conviction of the most guilty and the greatest number among the accused for an offense committed.10 In this jurisdiction, it is the trial court judge who has the exclusive responsibility of ensuring that the conditions prescribed by the rules exist.11 This grant is not one of arbitrary discretion but rather a sound judicial prerogative to be exercised with due regard to the proper and correct dispensation of criminal justice.12 But that there would be the possibility of error on the part of the judge is understandable. A trial judge cannot be expected or required to inform himself with absolute certainty at the outset of the trial as to everything which may develop in the course of the trial in regard to the guilty participation of the accused in the commission of the crime charged in the complaint.13 If that were possible, the judge would conveniently rely on large part upon the suggestion and the information furnished by the prosecuting officer in coming to the conclusion as to the "necessity for the testimony of the accused whose discharge is requested, as to the "availability of other direct or corroborative evidence," and as to who among the accused is the "most guilty," and so the like.14 Then, there would be little need for the formality of a trial.15 Thus, here, even while one might be convinced that state witness Rodel de la Cruz would, on the basis of evidence ultimately submitted, appear to be equally as, and not less than, guilty in conspiracy with appellant Carlos Feliciano, the hands of the State are now stayed and the Court must assure the exemption of the witness from punishment. It is widely accepted that the discharge of an accused to become a state witness has the same effect as an acquittal. The impropriety of the discharge would not have any effect on the competency and quality of the testimony, nor would it have the consequence of withdrawing his immunity from prosecution.16 A discharge, if granted at the stage where jeopardy has already attached, is equivalent to an acquittal, such that further prosecution would be tantamount to the state reneging on its part of the agreement and unconstitutionally placing the state witness in doubt jeopardy. The rule, of course, is not always irreversible. In an instance where the discharged accused fails to fulfill his part of the bargain and refuses to testify against his co-accused, the benefit of his discharge can be withdrawn and he can again be prosecuted for the same offense. In US vs. de Guzman,17 one of the earlier cases discussing this issue, Justice Carson had occasion to briefly touch on the immunity clauses in the Acts of the United States Congress and some States. In Wisconsin, the immunity clause contained a proviso providing that persons committing perjury when called upon to testify could be punished therefor.18 Oklahoma law suffered from the absence of any reservation; thus observed Justice Carson "x x x We have no such reservation in our constitutional provision; and, as before said, if we should follow the precedents, when the witness does not speak the truth, the State would be left without redress, although the witness had violated the purpose and spirit of the constitution. We cannot believe that it was the purpose of the intelligent and justice-loving people of Oklahoma, when they voted for the adoption of the constitution, to grant immunity to any man, based upon a lie, or, in other words, that they intended that the commission of perjury should atone for an offense already committed. It is a familiar rule of common law, common sense, and common justice that a legal right cannot be based upon fraud. We therefore hold that the witness who claims immunity on account of self-incriminatory testimony which he had been compelled to give must act in good faith with the State, and must make truthful replies to the questions which are propounded to him, and which he had been compelled to answer, and that any material concealment or suppression of the truth on his part will deprive him of the immunity provided by the constitution; and the witness must testify to something which, if true, would tend to criminate him. This immunity is only granted to those who earn it by testifying in good

faith. In our judgment any other construction would be an insult to and a libel upon the intelligence of the people of Oklahoma, an outrage on law, and a prostitution of justice."19 Despite an obvious attempt to downgrade his own participation in the crime, state witness de la Cruz, nevertheless, did not renege from his agreement to give a good account of the crime, enough to indeed substantiate the conviction of his co-accused, now appellant Carlos Feliciano, by the trial court. On significant points, the damaging testimony of de la Cruz against appellant was corroborated by Ruben Barte and Ramon Yael. On the night of the incident, Feliciano hired his vehicle and drove it himself while De la Cruz was seated on its passenger seat. When the two did not return at the appointed time, Barte asked Ramon Yael, another tricycle driver who happened to be at the Kingsmen parking area, to accompany him to look for them. Myca Banson decided to come with them. After a while, the trio spotted Barte's tricycle being driven by de la Cruz, and followed it. Barte testified how the first tricycle turned turtle at the junction towards Magdalena Village. When the tricycle tilted, he saw a person in red falling from the vehicle, while another person who was in white, lifted the first person. When the first tricycle precariously lurched, its occupants hurriedly abandoned the vehicle. The obfuscating foliage, however, blocked his view so Barte was not able to identify who was with appellant and de la Cruz nor ascertain where the two men were later headed. When the three of them approached the overturned tricycle they found no one. Near the vehicle, they saw an abandoned bag which Myca Banson hastily retrieved. While Barte struggled to turn his vehicle upright, Myca left with Ramon Yael. Later, while riding his vehicle on his way back, Ruben Barte was forced to stop because its engine stalled. While inspecting the tricycle engine, appellant and de la Cruz approached him, and the former told him not to worry as he would pay for the damages. After a while, at the parking lot of the Kingsmen Building, appellant told him to take his vehicle to a dark place where he wiped off the blood from the tricycle's seats. When they met again several hours later, appellant gave him P450.00 for the damages sustained by the vehicle. Much later, Yael handed him another P250.00 given by appellant as additional payment. Ruben Barte kept quiet about the incident because appellant warned him against reporting the matter to anyone. Ramon Yael corroborated the testimony of Barte, adding that while they were chasing appellant and de la Cruz, one of the two fired a gun in the air, constraining them to decrease their speed. Militating against the unbiased nature of the testimony of these two witnesses was their admission of having willingly accepted the blood money which appellant gave them that could well qualify them as being themselves accessories to the crime.20 Appellant Carlos Feliciano was not able to sufficiently dispute his participation therein. Neither his blanket denial nor his alibi, both inherently weak defenses, was amply proved. Article 294(1) of the Revised Penal Code as amended by Republic Act No. 7659, provides "1. The penalty of reclusion perpetua to death [shall be imposed], when by reason or on occasion of the robbery, the crime of homicide shall have been committed, or when the robbery shall have been accompanied by rape or intentional mutilation or arson." (Emphasis supplied.) Given the evidence in this case, heretofore narrated, the Court is not convinced that the prosecution has succeeded in establishing beyond reasonable doubt any of the aggravating circumstances alleged in the information that can warrant the imposition of the maximum of the penalty prescribed by law. Evidence is wanting that appellant has especially sought nighttime to perpetrate the crime or that the criminal act has been preceded, required in evident premeditation, by cool thought and reflection. Not only is treachery an aggravating circumstance merely applicable to crimes against persons but neither also has the mode of attack on the victim of the robbery been shown to have been consciously adopted. WHEREFORE, the judgment of the court a quo is AFFIRMED except insofar as it imposed on appellant Carlos Feliciano the penalty of death which is hereby reduced to reclusion perpetua. Costs de oficio. SO ORDERED.

PEOPLE OF THE PHILIPPINES and VILMA CAMPOS, Petitioners, -versusLOUEL UY, TEOFILO PANANGIN, HON. JUDGE MAMINDIARA P. MANGOTARA, Acting Judge, Br. 44, Initao, Misamis Oriental, Respondents. G.R. No. 158157 Present: PANGANIBAN, J., Chairman, SANDOVAL-GUTIERREZ, CORONA, CARPIO MORALES, and GARCIA, JJ. Promulgated: September 30, 2005 xx------------------------------------------------------------------------------xx

DECISION

CARPIO MORALES, J.:

The Decision dated April 7, 2003 of the Regional Trial Court of Misamis Oriental, Branch 44, granting the separate demurrer to evidence of accused Louel Uy and Teofilo Panangin resulting in their acquittal for murder due to insufficiency of evidence, but nevertheless holding them jointly and severally liable to pay P35,000 to the heirs of the victim Rabel Campos representing vigil and burial expenses is being assailed in the present petition for certiorari under Rule 65 of the Revised Rules of Court by the People and the mother of the victim. The victim, Rabel Campos, was found dead with several stab wounds in the morning of March 23, 2001 along the National Highway of Maputi, Naawan, Misamis Oriental. A suspect in the commission of the crime, Teofilo Panangin (Panangin), was arrested on January 22, 2002 by elements of the Special Operation Group and Police Community Precinct 1 of Iligan City. During the investigation conducted by the National Bureau of Investigation-Iligan District Office (NBIILDO) on January 23, 2002, Panangin executed a Sworn Statement[1] with the assistance of Atty. Celso Sarsaba of the Public Attorneys Office (PAO). In his January 23, 2002 Sworn Statement, Panangin related as follows:

On March 22, 2001, around 8:00 p.m., while he was at the Justy Inn, Tibanga, Iligan City, his former employer Louel Uy (Uy), in whose house he stayed from 1993 to 1997, arrived, telling him that he had a problem and that it was he (Panangin) who could help him. He and Uy thereafter repaired to the Sanitarium Hospital where Uys grandmother had just died, after which they proceeded to the house of Uy where the latter gave him a stainless steel knife, instructing him to keep it as they had work to do. Later that night, he and Uy, on board a red Isuzu vehicle, proceeded to Quezon Avenue near the Cathedral where they stopped. Uy then called by cellular phone his live-in partner Rabel, who later was to be the victim of a gruesome death, and instructed her to proceed to where they were. As instructed, Rabel repaired to where they were and joined them on board the vehicle. The three of them thereupon proceeded to the direction of Pagahan, Initao, Misamis Oriental and on reaching this place, Uy negotiated a U-turn. Upon reaching the National Highway in Naawan, Misamis Oriental, Uy stopped the vehicle and alighted. Uy then forcibly pulled Rabel out of the vehicle and as Uy was holding Rabel tightly, he instructed him to stab her. Albeit he was hesitant, as Uy shouted at him and threatened to shoot him with his cal. 45 pistol tucked at his waist, he had no choice but to follow Uys instruction. He thus stabbed Rabel once at the stomach. After he stabbed Rabel, she was able to run away. Uy, however, took the knife from him and chased Rabel. On catching up with her, Uy dragged her to the ground and stabbed her several times until she expired. He and Uy then left for Iligan City, arriving thereat at 1:30 a.m. of March 23, 2001. At the time Panangin gave his Sworn Statement, he was shown a pair of sandals, found and taken by the police at the scene of the crime, bearing the markings Neckersman Switzerland which he confessed to be his, he adding that it was given to him by Edgar Uy, a cousin of Uy. He was also shown a pair of sandals, also recovered from the crime scene, bearing the markings WAGON & RACKS, which he identified to be Rabels. Following the execution by Panangin of his sworn statement-extrajudicial confession on January 23, 2002, Atty. Patricio S. Bernales, Jr., District Agent-in-Charge of the NBI-ILDO, filed on even date a case for murder against Panangin and Uy before the 10th Municipal Circuit Trial Court (MCTC) of Lugait-ManticaoNaawan. During the preliminary investigation before the MCTC, Panangins sworn statement and witnesses were presented. After the preliminary investigation of Panangin was concluded or on January 24, 2002, MCTC Investigating Judge Jose U. Yamut, Sr. issued a Resolution,[2] the pertinent portions of which read: From the evidence adduced or submitted, we are of the OPINION that the killing of CAMPOS was attended by (a) craft; (b) superior strength and evident premeditation (For UY x x x). The OVERT ACTS OF UY AND PANANGIN show that BOTH had the UNITY OF DESIGN and both agreed to kill CAMPOS and decided to kill CAMPOS. IN VIEW OF THE ABOVE, let a WARRANT OF ARREST issue against TEOFILO PANANGIN, for the FELONY of MURDER with NO BAILBOND RECOMMENDED. PANANGIN is principal by direct participation in the killing of CAMPOS. (Citations omitted)

xxx

The investigating judge then directed the issuance of subpoena to Louel Uy for him to appear at a preliminary investigation scheduled on February 4, 2002. The records do not show if the preliminary investigation scheduled on February 4, 2002 pushed through and if it did, what the result was. The records, however, show that Assistant Provincial Prosecutor Mayorico M. Bodbod found the evaluation of the investigating judge to be in order, hence, he affirmed the same by Resolution[3] dated March 19, 2002 and recommended the indictment of Uy and Panangin for murder. An Information[4] was thus filed on April 5, 2002 charging Uy and Panangin with murder as follows: That on March 22, 2001 at around 11:30 oclock more or less in the evening at Maputi, Nawan, Misamis Oriental, Philippines and within the jurisdiction of this Honorable Court the above-named accused, Louel Uy and Teofilo Panangin with intent to kill and treachery, evident premeditation and abuse of superior strength did then and there, willfully, unlawfully and feloniously stab one Rabel Campos, several times which resulted to her untimely death. CONTRARY TO and in violation of Article 248 of the Revised Penal Code in relation to Republic Act No. 7659.

When arraigned, both accused entered a plea of not guilty.[5] Aside from the sworn statement-extrajudicial confession of Panangin and photographs[6] of the victim Rabel taken when she was found dead lying on a grassy area, the prosecution presented 11 witnesses, the most vital of which insofar as the resolution of the petition at bar is concerned are the testimonies of PAO Atty. Celso Sarsaba, NBI agent Gerardo Tamayo, Uys girlfriend Iris Paumar and her moth er Julieta Paumar which follow after their respective names. Atty. Celso Sarsaba[7] of the PAO: He assisted Panangin during the investigation conducted on January 23, 2002 at Police Station I. Before Panangin gave a statement, Gerardo Tamayo (Tamayo) of the NBI informed him of his constitutional rights and warned him that his statement might be used against him, but Panangin went ahead and gave his statement. Tamayo then proceeded to investigate Panangin who was handcuffed at the inception of the investigation, although in the course thereof his handcuffs were removed as he was allowed to smoke. The investigation was in the form of question and answer, and Panangin had the opportunity to review every item thereof which was translated into the Visayan dialect. After the interview, he asked Panangin whether he had something to replace or amend or substitute in his statement to which Panangin replied in the negative. Panangin thereafter affixed his signature on his statement in his presence. NBI agent Gerardo Tamayo:[8] He investigated Panangin who informed him that he had no counsel to assist him. He thus requested PAO lawyer Atty. Sarsaba to assist Panangin who had earlier been arrested not in connection with the death of Rabel but with another case. In apprising Panangin of his constitutional rights, he spoke to him in Visayan.

Iris Paumar:[9] Echoing the contents of her affidavit executed on May 2, 2001,[10] she related that Uy, with whom she had a five-month romantic relationship, together with Panangin, went to her house on March 23, 2001 for her birthday. A few weeks before Rabels death, she and Rabel figured in a slapping incident. Julieta Paumar:[11] Her daughter Iris had a romantic relationship with Uy who, together with Panangin, went to their house at Purok 8, Tipanoy, Iligan City at dawn of March 23, 2001 for her daughters birthday. She affirmed the contents of her affidavit[12] dated April 10, 2001 which she executed in connection with the case. Following the filing and the subsequent adm