SATURNINO OCAMPO V. JUDGE EPHREM ABANDO FACTS

P C/Insp. Almaden of the (PNP) Regional Office 8 and Army Captain Tiu of the 8th Infantry Division of the Philippine Army sent 12 undated letters to the Provincial Prosecutor of Leyte.

o The letters requested appropriate legal action on 12 complaint-affidavit accusing 71 named CPP/NPA/NDFP of murder.

o The letters narrated that on 26 August 2006, elements of the 43rd Infantry Brigade of the Philippine Army discovered a mass grave site of the CPP/NPA/NDFP at Sitio Sapang Daco, Barangay Kaulisihan, Inopacan, Leyte.

o The mass grave contained 67 skeletal remains of individuals believed to be victims of "Operation Venereal Disease" (Operation VD) launched by members of the (CPP/NPA/NDFP) to purge their ranks of suspected military informers.

o Attached to the letters were the affidavits of the former members of CPP/NPA/NDFP. According to them, Operation VD was ordered in 1985 by the CPP/NPA/NDFP Central Committee.

The PNP Scene of the Crime Operation (SOCO) Team conducted a crime investigation to collect, preserve and analyse the skeletal remains in the mass grave. An investigation team composed of intelligence officers, and medico-legal and DNA experts, conducted forensic crime analysis and collected from alleged relatives of the victims DNA samples for matching.

On the basis of the 12 letters and their attachments, Prosecutor Vivero issued a subpoena requiring, among others, petitioners to submit their counter-affidavits and those of their witnesses.

o Petitioner Ocampo submitted his counter-affidavit. o Petitioners Echanis and Baylosis did not file counter-affidavits because

they were allegedly not served the copy of the complaint and the attached documents or evidence.

o Counsel of petitioner Ladlad made a formal entry of appearance on 8 December 2006 during the preliminary investigation. However, Ladlad did not file a counter-affidavit because he was allegedly not served a subpoena.

Prosecutor Vivero recommended the filing of an Information for 15 counts of multiple murder against 54 named members of the CPP/NPA/NDFP.

o The Information was filed before the RTC Hilongos, Leyte presided by Judge Ephrem S. Abando.

o Petitioner Ocampo filed an Ex Parte Motion to Set Case for Clarificatory Hearing dated 5 March 2007 prior to receiving a copy of the Resolution recommending the filing of the Information.

On 6 March 2007, Judge Abando issued an Order finding probable cause and ordered the issuance of warrants of arrest against them with no recommended bail for their temporary liberty.

On 16 March 2007, petitioner Ocampo filed before the S.C. a special civil action for certiorari and prohibition under Rule 65 of the Rules of Court docketed as GR 176830 seeking the annulment of the 6 March 2007 Order of Judge Abando and the 16 February 2007 Resolution of Prosecutor Vivero.

o Petitioner Ocampo argued that a case for rebellion against him and 44 others (including petitioners Echanis and Baylosis and Ladlad) was then pending before the RTC Makati.

o Putting forward the political offense doctrine, petitioner Ocampo argues that common crimes, such as murder in this case, are already absorbed by the crime of rebellion when committed as a necessary means, in connection with and in furtherance of rebellion.

o The OSG was asked to comment on the petition and the case was set for oral arguments. Afterwards, the parties were ordered to submit their memoranda within 10 days.

o On 3 April 2007, the Court ordered the provisional release of petitioner Ocampo under a P100,000 cash bond.

The prosecution filed a Motion to Admit Amended Information and New Informations on 11 April 2007 based on the oral arguments that the single Information filed before the RTC Hilongos, Leyte was defective for charging 15 counts of murder.

o In an Order dated 27 July 2007, Judge Abando held in abeyance the resolution thereof and effectively suspended the proceedings during the pendency of G.R. No. 176830 in the SC.

While the proceedings were suspended, petitioner Echanis was arrested on 28 January 2008 by virtue of the warrant of arrest issued by Judge Abando on 6 March 2007.

On 1 February 2008, petitioners Echanis and Baylosis filed a Motion for Judicial Reinvestigation/ Determination of Probable Cause with Prayer to Dismiss the Case Outright and Alternative Prayer to Recall/ Suspend Service of Warrant.

o Judge Abando issued an Order denying the motion. o Petitioners Echanis and Baylosis filed a Motion for Reconsideration, but

before being able to rule thereon, Judge Abando issued an Order transmitting the records of Criminal Case to the Office of the Clerk of Court, RTC Manila.

o The case was re-raffled to RTC Manila, Branch 32 (RTC Manila) presided by Judge Thelma Bunyi-Medina (Judge Medina) and re-docketed as Criminal Case No. 08-262163.

o Petitioner Echanis was transferred to the PNP Custodial Center in Camp Crame, Quezon City.

o Petitioners Echanis and Baylosis filed their Supplemental Arguments to Motion for Reconsideration.

In an Order dated 27 October 2008, Judge Medina suspended the proceedings of the case pending the resolution of G.R. No. 176830 by this Court.

On 18 December 2008, petitioner Ladlad filed with the RTC Manila a Motion to Quash and/or Dismiss.

Petitioners Echanis (on Dec. 23,2008) and Baylosis (on Jan. 5, 2009) filed a before the S.C. a petition for a special civil action for Certiorari and prohibition under Rule 65 of the Rules of Court seeking the annulment of the 30 April 2008 Order of Judge Abando and the 27 October 2008 Order of Judge Medina .

o The petitions were consolidated on January 12, 2009. o The OSG was asked to comment on the prayer for petitioner Echaniss

immediate release. The OSG did not interpose any objection on these conditions: that the temporary release shall only be for the purpose of his attendance and participation in the formal peace negotiations between the Government of the Republic of the Philippines (GRP) and the CPP/NPA/NDFP, set to begin in August 2009; and that his temporary release shall not exceed six (6) months. The latter condition was later modified, such that his temporary liberty shall continue for the duration of his actual participation in the peace negotiations.

o On 11 August 2009, the Court ordered the provisional release of petitioner Echanis under a P100,000 cash bond, for the purpose of his participation in the formal peace negotiations.

Meanwhile, the DOJ filed its Opposition to petitioner Ladlads motion to quash before the RTC Manila.

o The motion to quash was denied by Judge Medina.

On 9 November 2009, petitioner Ladlad filed a special civil action for certiorari under Rule 65 of the Rules of Court seeking the annulment of the 6 May 2009 and 27 August 2009 Orders of Judge Medina. The petition was docketed as G.R. No. 190005.

o Petitioner Ladlad filed an Urgent Motion to Fix Bail. o Petitioner Baylosis filed A Motion to Allow Petitioner to Post Bail. o The OSG interposed no objection to the grant of a P100,000 cash bail to

them considering that they were consultants of the NDFP negotiating team, which was then holding negotiations with the GRP peace panel for the signing of a peace accord.

o The motions of Petitioners Ladlad and Baylosis to post bail (Php 100,000) was granted, subject to the condition that their temporary release shall be limited to the period of their actual participation in the peace negotiations.

ISSUES

1. Whether the Petitioners were accorded due process during the preliminary investigation and in the issuance of the warrants of arrest.

2. Whether the murder charges against the petitioners should be dismissed under the political offense doctrine.

HELD

1. The Petitioners were accorded due process during the Preliminary Investigation.

In the context of a preliminary investigation, the right to due process of law entails the opportunity to be heard.

The Petitioners were issued and served with Subpoena at their last known address for them to submit their counter-affidavits and that of their witnesses. This is sufficient for due process.

Section 3(d), Rule 112 of the Rules of Court, allows Prosecutor Vivero to resolve the complaint based on the evidence before him if a respondent could not be subpoenaed. As long as efforts to reach a respondent were made, and he was given an opportunity to present countervailing evidence, the preliminary investigation remains valid.

Having opted to remain passive during the preliminary investigation, petitioner Ladlad and his counsel cannot now claim a denial of due process, since their failure to file a counter-affidavit was of their own doing.

2. The determination of probable cause for the issuance of warrants of arrest against petitioners is addressed to the sound discretion of Judge Abando as the trial judge

As a general rule, the trial court's exercise of its judicial discretion should not be interfered with in the absence of grave abuse of discretion

Whether or not there is probable cause for the issuance of warrants for the arrest of the accused is a question of fact based on the allegations in the Informations, the Resolution of the Investigating Prosecutor, including other documents and/or evidence appended to the Information.

3. The political offense doctrine is not a ground to dismiss the charge against petitioners prior to a determination by the trial court that the murders were committed in furtherance of rebellion.

Political offense doctrine o common crimes, perpetrated in furtherance of a political offense, are

divested of their character as "common" offenses and assume the political complexion of the main crime of which they are mere ingredients, and, consequently, cannot be punished separately from the principal offense, or complexed with the same, to justify the imposition of a graver penalty

Any ordinary act assumes a different nature by being absorbed in the crime of rebellion.

A well-entrenched principle in criminal procedure: The institution of criminal charges, including whom and what to charge, is addressed to the sound discretion of the public prosecutor.

When the political offense doctrine is asserted as a defense in the trial court, it becomes crucial for the court to determine whether the act of killing was done in furtherance of a political end, and for the political motive of the act to be conclusively demonstrated.

Any amendment before plea, which downgrades the nature of the offense charged in or excludes any accused from the complaint or information, can be made only upon motion by the prosecutor, with notice to the offended party and with leave of court. The court shall state its reasons in resolving the motion and copies of its order shall be furnished all parties, especially the offended party.

If it appears at any time before judgment that a mistake has been made in charging the proper offense, the court shall dismiss the original complaint or information upon the filing of a new one charging the proper offense in accordance with Section 19, Rule 119, provided the accused shall not be placed in double jeopardy. The court may require the witnesses to give bail for their appearance at the trial.

A first jeopardy attaches only after the accused has been acquitted or convicted, or the case has been dismissed or otherwise terminated without his express consent, by a competent court in a valid indictment for which the accused has entered a valid plea during arraignment.

o Petitioners were never arraigned in Criminal Case No. 06-944. Even before the indictment for rebellion was filed before the RTC Makati, petitioners Ocampo, Echanis and Ladlad had already filed a petition before this Court to seek the nullification of the Orders of the DOJ denying their motion for the inhibition of the members of the prosecution panel due to lack of impartiality and independence.

o When the indictment was filed, petitioners Ocampo, Echanis and Ladlad filed supplemental petitions to enjoin the prosecution of Criminal Case No. 06-944.131 and the rebellion case was dismissed. It is clear then that a first jeopardy never had a chance to attach.

PEOPLE OF THE PHILIPPINES VS. EDGARDO ODTUHAN

GR. NO. 191566

July 17, 2013

FACTS:

In 1980, Odtuhan, respondent, married Jasmin Modina.

In 1993, he married Evelyn Alagon, private complainant.

In 1994, Odtuhan filed a petition for annulment of his marriage with Molina which

was granted by the RTC of Pasig in 1999 for lack of a valid marriage license.

In 2003, Alagon filed a Complaint-Affidavit charging Odtuhan with bigamy. An

Infomartion was filed in 2005.

In 2008, Odtuhan filed an Omnibus Motion praying for the quashal of the

infomation based on the following grounds:

o that the facts do not charge the offense of bigamy

o that the criminal action or liability has been extinguished by the declaration

of nullity of the first marriage

RTC of Manila denied Odtuhan's Omnibus Motion, stating:

o that the facts alleged constitute the crime of bigamy

o the declaration of nullity of the first marriage is not one of the modes of

extinguishing criminal liability

On appeal via a special civil action on certiotari under Rule 65 of the Rules of

Court, the CA reversed and set aside the decision of the RTC, stating:

o one essential element of the crime of bigamy is wanting: valid first

marriage (Morigo case application)

o the Odtuhan was in a better position than Morigo since the declaration of

nullity was obtained before the complaint was filed against him

ISSUES:

WON the motion to quash the information is proper

WON the declaration of nullity of the first marriage extinguished the criminal

liability of Odtuhan which already attached prior to such declaration.

HELD:

Motion to quash the information is NOT proper.

As defined in the Antone case, "a motion to quash information is the mode by

which an accused assails the validity of a criminal complaint or information filed

against him for insufficiency on its face in point of law, or for defects which are

apparent in the face of the information."

A motion to quash should be based on a defect in the information which is

evident on its fact.

If the defect can be cured by amendment or if it is based on the ground that the

facts charged do not constitute an offense, prosecution is given by the court the

opportunity to correct the defect by amendment. If the motion to quash is

sustained, the court may order that another complaint or information be filed

except when the information is quashed on the ground of extinction of criminal

liability or double jeopardy.

SC held that the information against Odtuhan is sufficient to constitue the crime

of bigamy.

o The declaration of nullity of the first marriage is only an evidence that

seeks to establish a fact contrary to that alleged in the information. This is

a matter of defense and cannot be raised in a motion to quash.

The declaration of nullity of the first marriage DID NOT extinguish the criminal liability of

Odtuhan for bigamy.

Odtuhan's criminal liability has already attached because when he contracted the

second marriage with Alagon, his first marriage with Modina is still validly

subsisting. The declaration of nullity was only obtained in 1999 whereas the

second marriage was contracted in 1993.

A judicial declaration of nullity of the first marriage is required BEFORE a valid

subsequent marriage can be contracted.

ISABELO A. BRAZA v. THE HON. SANDIGANBAYAN (1ST DIVISION)

GR. NO. 195032, FEB. 20, 2013

This is a petition for certiorari filed by Braza seeking to reverse and set aside the two Resolutions of the

Sandiganbayan.

FACTS

In preparation for the 12th ASEAN Leaders Summit in December 2006 held in the province of

Cebu, the DPWH identified projects relative to the improvement and rehabilitation of roads and

installation of traffic safety devices and lighting facilities.

4 out of 11 street lighting projects were awarded to FABMIK Construction and Equipment Supply

Company, Inc. in which Braza is the president. The 3 other projects were bidded out only on November

28, 2006 or less than 2 weeks before the scheduled start of Summit. Thereafter, the DPWH and FABMIK

executed a Memorandum of Agreement (MOA) whereby FABMIK obliged itself to implement the

projects at its own expense and the DPWH to guarantee the payment of the work accomplished.

FABMIK was able to complete these projects within the deadline of 10 days utilizing its own resources

and credit facilities. The schedule of the ASEAN Leaders Summit, however, was moved by the national

organizers to January 9-15, 2007 due to typhoon Seniang.

TIMELINE OF THE CASE

After the summit, a letter-complaint was filed before Public Assistance and Corruption

Prevention Office (PACPO), Ombudsman Visayas, alleging that the ASEAN Summit street lighting

projects were overpriced.

March 16, 2007 - Ombudsman directed the DBM and the DPWH to cease and desist from

releasing or disbursing funds for the projects in question.

March 23, 2007 - The fact-finding body issued its Evaluation Report recommending the filing of

charges for violation of Sec 3(e) of RA 3019, otherwise known as the Anti-Graft and Corrupt

Practice Act against the DPWH officials and Employees in Region VII and thee cities of Mandaue

and Lapu-lapu, and the private ontractors FABMIK and GAMPIK Construction and Development,

Inc.

This report was filed before the Office of the Ombudsman-Visayas (OMB-

Visayas) for the conduct of preliminary investigation.

January 24, 2008 - After the P.I., the OMB-Visayas issued its Resolution finding probable cause to

indict the concerned respondents for violation of Section 3(g) of RA 3019. It was found that the

lampposts and other lighting facilities installed were indeed highly overpriced and that the

contracts entered into between the govt officials and the private contractors were manifestly

and grossly disadvantageous to the government.

OMB-Visayas filed several informations before the Sandiganbayan for violation of Sec.

3(g) of RA 3019 against the officials of DPWH Region VII, the officials of the cities of Mandaue

and Lapu-lapu and private contractors, FABMIK President Braza and GAMPIK Board Chairman

Surla.

1st information - which involved the street lighting project covered by Contract I.D. No.

06H00050 with FABMIK, was raffled to the First Division of the Sandiganbayan. It was alleged

therein that Braza acted in conspiracy with the public officials and employees in the commission

of the crime charged.

2nd information is dated May 4, 2009.

June 6, 2008 - Braza was arraigned as a precondition to his authorization to travel abroad. He

entered a plea of not guilty.

August 14, 2008 - motions for reinvestigation filed by Radaza (Mayor) and the DPWH officials were

denied by the Sandiganbayan for lack of merit. Consequently, they moved for the

reconsideration of the resolution.

August 27, 2008 - Braza filed a motion for reinvestigation anchored on the following ground:

(1) The import documents relied upon by the OMB-Visayas were spurious and falsified.

(2) Consiituted new evidence, if considered, would overturn the finding of probable

cause

(3) The finding of overpricing was bereft of factual and legal basis.

He prayed for suspension of the proceedings of the case pending such

reinvestigation. The Sandiganbayan treated Brazas motion as his motion for

reconsideration of its August 14, 2008 Resolution.

November 3, 2008 - the Sandiganbayan reconsidered its August 14,2008 resolution and directed a

reinvestigation of the case.

November 13, 2008 - Braza filed a manifestation to make of record that he was maintaining his

previous plea of not guilty without any condition.

February 2, 2009 - Braza filed his manifestation informing the Sandiganbayan of his intention to

abandon his previous motion for reinvestigation. He opined that the prosecution would merely

use the reinvestigation proceedings as a means to engage in a second unbridled fishing

expedition to cure the lack of probable cause.

March 23, 2009 - Braza filed a motion in support of the abandonment of reinvestigation with a

plea to vacate Information, insisting that the further reinvestigation of the case would only

afford the prosecution a second round preliminary investigation which would be vexatious,

oppressive and violative of his constitutional right to a speedy disposition of his case,

warranting its dismissal with prejudice.

May 4, 2009 - OMB-Visayas issued Supplemental Resolution (2nd Information) which upheld

the finding of probable cause but modified the charge from violation of Sec 3(g) of RA 3019 to

violation of Sec 3(e) of same law.

July 1, 2009 - Braza filed his Comment with Plea for Discharge and/or Dismissal of the Case.

He claimed that the first information had been rendered ineffective or had been deemed

vacated by the issuance of the Supplemental resolution and, hence, his discharge from the first

information was in order. By way of an alternative prayer, Braza sought the dismissal of the case

with prejudice claiming that his right to speedy disposition of the case had been violated.

Braza averred that he could not be arraigned under the second information

without violating the constitutional prohibition against double jeopardy.

October 12, 2009 - the Sandiganbayan issued the first assailed Resolution admitting the Ammended

Information, dated May 4, 2009, (2nd Information) and denying Brazas plea for dismissal of the

criminal case. The Sandiganbayan ruled that Braza would not be placed in double jeopardy

should he be arraigned anew under the 2nd information because previous arraignment was

conditional (a precondition to Brazas request to travel).

Sandiganbayan continued that even if he was regularly, arraigned, double

jeopardy would still not set in because the 2nd information charged an offense different from,

and which did not include or was necessarily included in, the original offense charged.

Lastly, it found that delay in the reinvestigation proceedings could not be

characterized as vexatious, capricious or oppressive and that it could not be attributed to the

prosecution.

Consequently, Sandiganbayan DENIED Brazas Alternative Relief for Dismissal of

the Case and set the arraignment on November 18, 2009.

November 6, 2009 - Braza moved for reconsideration with alternative motion to quash the

information reiterating his arguments that his right against double jeopardy and his right to a

speedy disposition of the case were violated warranting the dismissal of the criminal case with

prejudice.

In the alternative, Braaza moved for the quashal of the second information

vigorously asserting that the same was fatally defective for failure to allege any actual, specified

and quantifiable injury sustained by the government as required by law for indictment under

Sec 3(e) of RA 3019, and that the pricing was unfounded.

October 22, 2010 - Sandiganbayan issued the second assailed resolution which denies Brazas

Motion to Quash the information. The anti-graft court ruled that the Ammended Information

was sufficient in substance as to inform the accused of the nature and causes of the accusations

against them.

The Sandiganbayan deemed it proper that a new preliminary investigation be

conducted under the new charge. Accordingly, the case was remanded to the Office of the

Ombudsman/Special Prosecutor for P.I. of violation 3(e) of RA 3019.

ISSUE

WON the Sandiganbayan acted with grave abuse of discretion in denying Brazas plea for the

dismissal of the case and his subsequent motion to quash the Second Information, particularly

on the grounds of:

1. double jeopardy,

2. violation of his right to a speedy disposition of the case,

3. failure of the information to state every single fact to constitute all the elements of

the offense charged.

RULING

The petition is devoid of merit. The Sandiganbayan did not commit grave abuse of discretion

amounting to lack or excess of jurisdiction, much less did it gravely err, in denying Brazas motion to

quash the information/dismiss the case.

1. Constitutional right under Double Jeopardy Clause

Brazas assertion: his arraignment under the first information was simple and

unconditional and, thus, an arraignment under the second

information would put him in double jeopardy.

Courts ruling: the arraignment of the accused was conditional (a precondition

for Brazas request to travel) in the sense that if Information will

be amended as a result of the pending incidents, he cannot

invoke his right against double jeopardy and he shall submit

himself to arraignment anew under such Ammended

Information.

On the other hand, his conditional arraignment shall not

prejudice his right to question such Ammended information.

Note: The practice of the Sandiganbayan of conducting provisional or conditional

arraignment of the accused is NOT specifically sanctioned by

the Revised Internal Rules of the Procedure of the

Sandiganbayan or by the regular Rules of Procedures.

The court had tangentially recognized such practice in People v.

Espinosa, provided that the alleged conditions attached to the

arraignment should be unmistakable, express, informed and

enlightened. The Court further required that the conditions

must be expressly stated in the order disposing of arraignment,

otherwise, it should be deemed simple and unconditional.

The arraignment of Braza under the 1st information was conditional in nature as it was a

mere accommodation in his favor to enable him to travel abroad without the Sandiganbayan losing its

ability to conduct trial in absentia in case he would abscond. The Sandiganbayans Order clearly and

unequivocally states that if the information would be amended, he shall waive his constitutional right to

be protected against double jeopardy and shall allow himself to be arraigned on the amended

information without losing his right to question the same. Such waiver was clear, categorical and

intelligent. Braza is now estopped from assailing its conditional nature just to conveniently avoid being

arraigned and prosecuted of the new charge under the second information.

FOR ARGUMENTATIVE PURPOSES ONLY

Assuming that there was a valid and unconditional plea, Braza cannot plausibly rely on

the principle of double jeopardy to avoid arraignment under the second information because the

offense charged is different and not included in the offense charged under the first information.

Article III, Sec 21a.

No person shall be twice put in jeopardy of punishment for the same offense.

To substantiate a claim for double jeopardy, the accused has the buren of demonstrating the

following requisites:

(1) a first jeopardy must have attached prior to the second;

a. the first jeopardy attached only

i. after a valid indictment

ii. before a competent court

iii. after arraignment

iv. when a valid plea has been entered

v. when the accused was acquitted or convicted, or the case was dismissed ot

otherwise terminated without his express consent

(2) the first jeopardy must have been validly terminated; and

(3) the second jeopardy must be for the same offense as in the first.

The doctrine of double jeopardy is a revered constitutional safeguard against the accused

from risk of being prosecuted twice for the same offense, and not a different one. No double

jeopardy attaches as long as there is a variance between elements of the two offenses charged.

Although violation of Sec 3(g) of RA 3019 and violation of Sec 3(e) of the same law share a

common element, the accused being a public officer, the latter is not inclusive of the former.

The essential elements of each are not included among or do not form part of those

enumerated in the other.

There is simply no double jeopardy when the subsequent information charges another

and different offense, although arising from the same act or set of acts. Prosecution for the

same act is not prohibited. What is forbidden is the prosecution for the same offense.

2. Constitutional right to a speedy disposition of the case

Brazas assertion: the proceedings have unquestionably been marred with

vexatious, capricious and oppressive delay meriting the

dismissal of the case. Braza claims that it tok the OMB more

than two (2) years to charge him and his co-accused with

violation of Sec 3 in the second information.

Courts Ruling: the petitioners contention is untenable.

The constitutional guarantee to a speedy disposition of cases is

a relative or flexible concept. It is consistent with delays and

depends upon the circumstances. What a Constitution prohibits

are unreasonable, arbitrary and oppressive delays which

render rights nugatory.

The determination of whether the right has been violated, the factors that may

be considered and balanced are as follows:

(a) The length of the delay

(b) The reasons for the delay

(c) The assertion or failure to assert such right by the accused

(d) The prejudiced caused by the delay

Using the above yardstick, the Court finds that Brazas right to a speedy

disposition of the case has not been infringed. Indeed, the delay can hardly be

considered as vexatious, capricious and oppressive. The complexity of the

factual and legal issues, the number of persons charged, the various pleadings

filed, and the volume of documents submitted, prevent this Court from yielding

to the petitioners claim of violation of his right to a speedy disposition of his

case.

Mere mathematical reckoning for the time spent for the investigation is not a

sufficient basis to conclude that there was arbitrary and inordinate delay.

3. Sufficiency of the allegations in the second information

Brazas assertion: Braza challenges the sufficiency of the allegations in the second

information because there is no indication of any actual and

quantifiable injury suffered by the government. He then argues

that the facts under the second information are inadequate to

support a valid indictment for violation of Section 3(e) of RA

3019.

Courts Ruling: The petitioners simple syllogism must fail.

There are 2 ways by which a public official violates Sec 3 (e) of RA 3019 in the performance of

his functions, namely:

(1) By causing undue injury to any party, including the Government; or

(2) By giving any private party any unwarranted benefit, advantage or preference

The accused may be charged under either mode or both. Braza was indicted for violation of

Sec 3 (e) of RA 3019 under the second mode. To be found guilty under the second mode, it

suffices that the accused has given unjustified favor benefit to another, in the exercise of his

official, administrative and judicial functions. The element of damage is not required for

violation of Section 3 (e) under the second mode.

Settled is the rule that private persons, when acting in conspiracy with public officers, may

be indicted and, if found guilty, held liable for the pertinent offenses under Sec 3 of RA 3019.

Considering that all the elements of the offense of violation of Sec 3 (e) were alleged in the

second information, the Court finds the same to be sufficient in form and substance to sustain

a conviction.

PHILIPPINE NATIONAL BANK vs. LILIAN S. SORIANO G.R. No. 164051 October 3, 2012

FACTS: - PNB extended a credit facility in the form of a Floor Stock Line (FSL) in the increased

amount of 30 Million to Lisam Enterprises, Inc. (LISAM), a family-owned and controlled corporation. Soriano is the chairman and president of LISAM, she is also the authorized signatory in all LISAMs Transactions with PNB.

- On various dates, LISAM made several availments of the FSL in the total amount of P29,645,944.55 and for each availment, LISAM through Soriano, executed 52 Trust Receipts (TRs).

- PNBs authorized personnel conducted an actual physical inventory of LISAMs motor vehicles and motorcycles and found that only 4 units covered by the TRs amounting to 140,800.00 remained unsold.

- Out of the 29,644,944.55 as the outstanding principal balance of the total availments, LISAM should have remitted to PNB 29,487,844.55. Despite several formal demands, respondent Soriano failed and refused to turn over the said amount to the prejudice of PNB.

- It was stated in the given terms of the TRs that the trustee agrees to hold the Motor Vehicles in storage as the property of PNB, with the liberty to sell the same for cash for the Trustees account and to deliver the proceeds thereof to PNB to be applied against its acceptance on the Trustees account. Also, for the purpose of effectively carrying out all the terms and conditions of the Trust, the Trustee agreed and consented to allow and permit PNB or its representatives to inspect all of the trustees books at any time and whenever PNB, at its discretion, may find it necessary to do so.

- Also stated in the terms and conditions that the trustees failure to account to PNB for the Motor Vehicles and the proceeds of the sale thereof within 30 days from PNBs demand shall constitute a prima facie evidence that the trustee has misappropriated the said vehicles and proceeds to the prejudice of PNB.

- Sorianos failure to account for the proceeds of the sale of the motor vehicles prompted the PNB to file a complaint-affidavit before the Office of the City Prosecutor of Naga City

- Soriano filed a counter-affidavit asserting that the obligation of LISAM, and consequently her obligation, if any, is purely civil in nature. She further alleged that when her husband was still alive, LISAM submitted proposals to PNB for the restructuring of all of LISAMs credit facilities and that the proposal was approved by the Board of Directors of PNB. The FSL and the availments thereon allegedly secured by Trust Receipts, therefore, was already converted into, and included in, an Omnibus Line (OL) of 106 million, which was actually a Revolving Credit Line (RCL).

- PNB filed a reply-affidavit maintaining Sorianos criminal liability under the TRs. PNB alleged that the restructuring was never implemented because LISAM failed to comply with the conditions of approval, such as the payment of interest and other charges and the submission of the title of the vacant residential land in Tandang Sora QC, and therefore, the non-implementation of the approved restructuring of the account of

LISAM has the effect of reverting the account to its original status prior to the said approval.

- City Prosecutor of Naga City found a prima facie evidence that Soriano is probably guilty of the offense charged and filed information for 52 counts of Estafa before the RTC Branch 21 of Naga City.

- PNB (PNB talaga nakalagay sa case, pero feeling to Soriano dapat to?) filed a petition for review of the Naga City Prosecutors Resolution before the Secretary of the DOJ.

- RTC ordered the dismissal of one of the criminal cases against Soriano. Soriano was arraigned and pled not guilty to the rest of the case.

- The DOJ reversed and set aside the earlier resolution of the Naga City Prosecutor and directed said prosecutor to move, with leave of court, for the withdrawal of the information for estafa against Lilian S. Soriano.

- RTC issued the following Orders: o 27 November 2002

It gave the prosecution 15 days from receipt of the order to comply with the directive of the Department of Justice.

o 21 February 2003 It granted the Motion to Withdraw Information filed by Prosec. Edgar Imperial. The information is hereby ordered withdrawn.

o 15 July 2003 It denied the Motion for Reconsideration filed by the private complainant.

- PNB filed a petition for certiorari before the CA alleging that the secretary of DOJ committed garve abuse of discretion in setting aside the resolution of the city prosecutor.

- CA did not find grave abuse of discretion in the questioned resolution of the DOJ, and dismissed PNBs petition for certiorari.

- NOTE: Respondent Soriano, despite several opportunities to do so, failed to file a Memorandum as required by the SC. Thus, SC resolved to dispense with the filing of Sorianos Memorandum.

ISSUES:

1.) Whether the withdrawal of Criminal Cases against Soriano as directed by the DOJ violates the well-established rule that once the trial court acquires jurisdiction over a case, it is retained until termination of litigation.

2.) Whether the reinstatement of the 51 counts of criminal cases for estafa (1 already dismissed) against Soriano would violate her constitutional right against double jeopardy.

3.) Whether the Court of Appeals gravely erred in affirming the DOJs ruling that the restructuring of LISAMs loan secured by trust receipts extinguished Sorianos criminal liability therefor.

HELD: - Significantly, the trial court gave the prosecution 15 days within which to comply with

the DOJs directive, and thereupon, readily granted the motion. Indeed, the withdrawal of the criminal cases did not occur, nay, could not have occurred, without the trial courts imprimatur. BUT, a perusal of the RTCs Orders reveals that the trial court

relied solely on the Resolution of the DOJ Secretary and his determination that the Information for estafa against Soriano ought to be withdrawn. The trial court abdicated its judicial power and refused to perform a positive duty enjoined by law. On one occasion, we have declared that while the recommendation of the prosecutor or the ruling of the Secretary of Justice is persuasive, it is not binding on courts.

- In the same vein, the reinstatement of the criminal cases against Soriano will not violate her constitutional right against double jeopardy.

- In the present case, the withdrawal of the criminal cases did not include a categorical dismissal thereof by the RTC. Double jeopardy had not set in because Soriano was not acquitted nor was there a valid and legal dismissal or termination of the 51 cases against her. It stands to reason therefore that the fifth requisite which requires conviction or acquittal of the accused, or the dismissal of the case without the approval of the accused, was not met.

- In Cerezo v. People, the SC states that: In thus resolving a motion to dismiss a case or to withdraw an Information, the trial court should not rely solely and merely on the findings of the public prosecutor or the Secretary of Justice. It is the courts bounden duty to assess independently the merits of the motion, and this assessment must be embodied in a written order disposing of the motion. Since we have held that the Order granting the motion to dismiss was committed with grave abuse of discretion, then respondents were not acquitted nor was there a valid and legal dismissal or termination of the case. Ergo, the fifth requisite which requires the conviction and acquittal of the accused, or the dismissal of the case without the approval of the accused, was not met. Thus, double jeopardy has not set in.

- The purported restructuring of the loan agreement did not constitute novation. Novation is one of the modes of extinguishment of obligations. The substitution or change of the obligation by a subsequent one extinguishes the first, resulting in the creation of a new obligation in lieu of the old. It is not a complete obliteration of the obligor-obligee relationship, but operates as a relative extinction of the original obligation.

- We look to whether there is an incompatibility between the Floor Stock Line secured by TRs and the subsequent restructured Omnibus Line which was supposedly approved by PNB. The test of incompatibility is whether the two obligations can stand together, each one having its independent existence. If they cannot, they are incompatible and the latter obligation novates the first.

- The records were scoured and no incompatibility was found between the Floor Stock Line and the purported restructured Omnibus Line. While the restructuring was approved in principle, the effectivity thereof was subject to conditions precedent.

- Well-settled is the rule that, with respect to obligations to pay a sum of money, the obligation is not novated by an instrument that expressly recognizes the old, changes only the terms of payment, adds other obligations not incompatible with the old ones, or the new contract merely supplements the old one. Besides, novation does not extinguish criminal liability.

- There was a grave error in the Court of Appeals dismissal of PNBs petition for certiorari. Certainly, while the determination of probable cause to indict a respondent for a crime lies with the prosecutor, the discretion must not be exercised in a whimsical

or despotic manner tantamount to grave abuse of discretion. The RTC is further ordered to conduct the pretrial with dispatch.

PEOPLE OF THE PHILIPPINES vs. ARTURO LARA y ORBISTA

FACTS:

Information charging Lara with robbery with homicide was filed with the RTC. Following Lara's plea of not guilty, trial ensued.

PROSECUTION:

3 witnesses: Enrique Sumulong, SPO1 Bernard Cruz and PO3 Efren Calix

May 31, 2001, 9:00 AM,he withdrew the amount of P230,000.00 from the Metrobank -Mabini Branch, Pasig City to defray the salaries of the employees of San Sebastian and while at around 10:30 AM, while the pickup he was riding was at the intersection of Mercedes and Market Avenues, Pasig City, Lara suddenly appeared at the front passenger side of the pick-up and pointed a gun at him stating, "Akin na ang pera, iyong bag, nasaan?";

Bautista, one of those who accompanied him told him not to give the bag. He threw the bag in Bautista's direction and Bautista alighted from the pick-up and ran. Seeing Bautista, Lara ran after him while firing his gun

He then ran towards Mercedes Plaza and called up the office of San Sebastian to relay the incident and when he went back to where the pick-up was parked, he went to the rear portion of the vehicle and saw blood on the ground;

He was informed by one bystander that Bautista was shot and the bag was taken away from him;

June 7, 2001: While on his way to Pasig City, he saw Lara walking along Dr. Pilapil Street, San Miguel, Pasig City and he alerted the police and Lara was thereafter arrested. At the police station, he, Atie and Manacob identified Lara as the one who shot and robbed them of San Sebastian's money.

DEFENSE:

LARA

May 31, 2001: he was at his house, digging a sewer trench while his brother, Wilfredo, was constructing a comfort room which was corroborated by his sister, Edjosa Manalo and neighbor, Simplicia Delos Reyes.

June 7, 2001 and at around 7:00 in the evening, while he was at the house of one of his cousins, police officers arrived and asked him if he was Arturo Lara and after confirming that he was Arturo Lara, the police officers asked him to go with them to the Barangay Hall. He voluntarily went with them and while inside the patrol car, one of the policemen said,"You are lucky, we were able to caught you in your house, if in another place we will kill you".

He was brought to the police station and not the barangay hall as he was earlier told where he was investigated for robbery with homicide and when he told the police that he was at home when the subject incident took place, the police challenged him to produce witnesses but when his witnesses arrived at the station, one of the police

officers told them to come back the following day. While he was at the police line-up holding a name plate, a police officer told

Sumulong and Atie, "Ituru nyo na yan atuuwi na tayo"; and when his witnesses arrived the following day, they were told that he will be subjected to an inquest.

RTC: GUILTY of robbery with homicide sentenced to suffer the penalty of imprisonment of

reclusion perpetua, with all the accessory penalties prescribed by law.

Rejected Lara's defense of alibi as follows because Enrique Sumulong positively identified accused Arturo Lara as the person who carted away the payroll money of San Sebastian Allied Services, and the one who shot Joselito Bautista which caused his instantaneous death on the same day. Also, it is not impossible for him to be at the place

ARGUMENTS:

On appeal, Lara pointed out several errors that supposedly attended his conviction. First, that he was arrested without a warrant under circumstances that do not justify a warrantless arrest rendered void all proceedings including those that led to his conviction.

Second, he was not assisted by counsel when the police placed him in a line-up to be identified by the witnesses for the prosecution in violation of Section 12, Article III of the Constitution. The police line-up is part of custodial investigation and his right to counsel had already attached.

Third, the prosecution failed to prove his guilt beyond reasonable doubt. Specifically, the prosecution failed to present a witness who actually saw him commit the alleged acts. Sumulong merely presumed that he was the one who shot Bautista and who took the bag of money from him. The physical description of Lara that Sumulong gave to the police was different from the one he gave during the trial, indicating that he did not have a fair glimpse of the perpetrator.

Moreover, this gives rise to the possibility that it was his unidentified companion who shot Bautista and took possession of the money. Hence, it cannot be reasonably claimed that his conviction was attended with moral certainty.

Fourth, the trial court erred in discounting the testimony of his witnesses. Without any showing that they were impelled by improper motives in testifying in his favor, their testimonies should have been given the credence they deserve.

While his two (2) witnesses were his sister and neighbor, this does not by itself suggest the existence of bias or impair their credibility.

CA:

AFFIRMED conviction.

ISSUES:

1. Whether Lara's supposedly il legal arrest may be raised for the first time

on appeal for the purpose of nulli fying his conviction? (YES)

2. Whether the identification made by Sumulong, Atie and Manacob in the police line-up is

inadmissible because Lara stood therein without the assistance of counsel? (NO,

identification not custodial investigation)

3. Whether there is sufficient evidence to convict Lara? (YES)

4. Whether Lara's alibi can be given credence so as to exonerate him from the crime

charged? (NO)

HELD:

DENY appeal.

1. YES. That Lara was supposedly arrested without a warrant may not serve

as a ground to invalidate the proceedings leading to his conviction considering its

belated invocation. Any objections to the legality of the warrantless arrest should

have been raised in a motion to quash duly filed before the accused enters

his plea; otherwise, it is deemed waived.

Any objection to the arrest or acquisition of jurisdiction over the person of the accused must be made before he enters his plea, otherwise the objection is deemed waived. An accused submits to the jurisdiction of the trial court upon entering a plea and participating actively in the trial and this precludes him invoking any irregularities that may have attended his arrest. In voluntarily submitting himself to the court by entering a plea, instead of filing a motion to quash the information for lack of jurisdiction over his person, accused-appellant is deemed to have waived his right to assail the legality of his arrest.

Furthermore, the illegal arrest of an accused is not a sufficient ground to reverse and set aside a conviction that was arrived upon a complaint duly filed and a trial conducted without error. The warrantless arrest, even if illegal, cannot render void all other proceedings including those leading to the conviction of the appellants and his co-accused, nor can the state be deprived of its right to convict the guilty when all the facts on record point to their culpability

As Section 9, Rule 117 of the Revised Rules of Criminal Procedure provides: Sec. 9. Failure to move to quash or to allege any ground therefor. The failure of the accused to assert any ground of a motion to quash before he pleads to the complaint or information, either because he did not file a motion to quash or failed to allege the same in said motion, shall be deemed a waiver of any objections except those based on the grounds provided for in paragraphs (a), (b), (g) and (i) of Section 3 of this Rule.

2. NO. There was no legal compulsion to afford him a counsel during a police line-up since

the latter is not part of custodial

investigation and this does not constitute a violation of his right to counsel

People v. Amestuzo: The guarantees of Sec. 12 (1), Art. III of the 1987 Constitution, or the

so-called Miranda rights may be invoked only by a person while he is under custodial

investigation. Custodial investigation starts when the police investigation is no longer

a general inquiry into an unsolved crime but has begun to focus on a

particular suspect taken into custody by the police who starts the interrogation and

propounds questions to the person to elicit

incriminating statements.

3. YES. Contrary to appellant's assertion, prosecution witness Sumulong actually saw him

shoot Bautista, the victim. Also, it is apparent from the assailed decision of the CA that the

finding of guilt against Lara is based on circumstantial evidence. Not only direct

evidence but also circumstantial evidence can overcome the p resumption of

innocence. Direct evidence of the commission of the crime is not the only matrix

wherefrom a trial court may draw its conclusion and finding of guilt. Even in the absence of

direct evidence,conviction can be had if the established circumstances constitute an

unbroken chain, consistent with each other and to the hypothesis that

the accused is guilty,to the exclusion of all other hypothesis that he is not.

4. NO. In view of Sumulong's positive identification of Lara, the CA was correct in denying

Lara's alibi outright. It is well-settled that positive identification prevails over

alibi, which is inherently a weak defense. Such is the rule, for as a

defense, alibi is easy to concoct, and difficult to disapprove

In order for the defense of alibi to prosper, it must be demonstrated that: that he was present at another place at the time of the perpetration of the crime he was so far away that it was not possible for him to have been physically present at the place of the crime or its immediate vicinity at the time of its commission.

Physical impossibility "refers to the distance between the place where the accused was when the crime transpired and the place where it was committed, as well as the facility of access between the two places.

Proximity of Lara's house at the scene of the crime wholly negates his alibi. He himself admitted that his house was just a stone's throw (about three minutes away) from the crime scene. Lara and his witnesses failed to prove that it is well-nigh impossible for him to be at the scene of the crime.

DISPOSITIVE:

CA AFFIRMED

SAN MIGUEL PROPERTIES, INC., PETITIONER, vs.SEC. HERNANDO B. PEREZ,

ALBERT C. AGUIRRE, TEODORO B. ARCENAS, JR., MAXY S. ABAD, JAMES G.

BARBERS, STEPHEN N. SARINO, ENRIQUE N. ZALAMEA, JR., MARIANO M.

MARTIN, ORLANDO O. SAMSON, CATHERINE R. AGUIRRE, AND ANTONIO V.

AGCAOILI, RESPONDENTS.

The pendency of an administrative case for specific performance brought by the buyer of

residential subdivision lots in the Housing and Land Use Regulatory Board (HLURB) to compel

the seller to deliver the transfer certificates of title (TCTs) of the fully paid lots is properly

considered a ground to suspend a criminal prosecution for violation of Section 25 of Presidential

Decree No. 957 on the ground of a prejudicial question. The administrative determination is a

logical antecedent of the resolution of the criminal charges based on non-delivery of the TCTs.

Case Facts

San Miguel Properties Inc. (San Miguel Properties) is a domestic corporation engaged in the real estate business.

During this time, BF Homes was under receivership. The receiver is Atty. Florencio Orendain.

San Miguel purchased in 1992, 1993 and April 1993 from B.F. Homes, Inc. (BF Homes) 130 residential lots situated in its subdivision BF Homes Paraaque, containing a total area of 44,345 square meters for the aggregate price of P106,248,000.00.

Some of the parcels of land for which San Miguel paid the full price were not delivered.

BF Homes refused to deliver the 20 TCTs despite demands.

San Miguel filed a complaint-affidavit charging BF Homes in violation of PD 957 due to nondelivery of titles.

At the same time, San Miguel sued BF Homes for specific performance in HLURB, compelling BF Homes to release the 20 TCTs.

BF Homes contentions: o San Miguel Properties claim was not legally demandable because Atty.

Orendain did not have the authority to sell the lots due to his having been replaced as BF Homes rehabilitation receiver by the SEC

o the deeds of sale conveying the lots were irregular for being undated and unnotarized

o the claim should have been brought to the SEC because BF Homes was under receivership

o in receivership cases, it was essential to suspend all claims against a distressed corporation in order to enable the receiver to effectively exercise its powers free from judicial and extra-judicial interference that could unduly hinder the rescue of the distressed company

o the lots involved were under custodia legis in view of the pending receivership proceedings, necessarily stripping the OCP Las Pias of the jurisdiction to proceed in the action.

San Miguel Properties filed a motion to suspend proceedings in the OCP Las Pias, citing the pendency of BF Homes receivership case in the SEC.

BF Homes opposed the motion to suspend

SEC terminated BF Homes receivership

San Miguel filed a motion to withdraw the sought suspension of proceedings due to the termination of receivership

The OCP Las Pias dismissed San Miguel Properties criminal complaint for violation of Presidential Decree No. 957 on the following grounds:

o no action could be filed by or against a receiver without leave from the SEC that had appointed him

o that the implementation of the provisions of Presidential Decree No. 957 exclusively pertained under the jurisdiction of the HLURB

o that there existed a prejudicial question necessitating the suspension of the criminal action

o no prior resort to administrative jurisdiction had been made o there appeared to be no probable cause to indict respondents

San Miguel filed a motion for reconsideration but was denied.

San Miguel appealed the OCPs resolution to the DOJ.

DOJ denied the appeal.

San Miguel filed a motion for reconsideration but was denied.

San Miguel elevated DOJs resolutions to the CA but was dismissed by the CA

San Miguel filed a motion for reconsideration but was denied. Issue:

WON there is prejudicial question? Held:

Action for specific performance, even if pending in the HLURB, an administrative agency, raises

a prejudicial question. BF Homes posture that the administrative case for specific performance

in the HLURB posed a prejudicial question that must first be determined before the criminal

case for violation of Section 25 of Presidential Decree No. 957 could be resolved is correct.

A prejudicial question is understood in law to be that which arises in a case the resolution of

which is a logical antecedent of the issue involved in the criminal case, and the cognizance of

which pertains to another tribunal. It is determinative of the criminal case, but the jurisdiction

to try and resolve it is lodged in another court or tribunal. It is based on a fact distinct and

separate from the crime but is so intimately connected with the crime that it determines the

guilt or innocence of the accused.22 The rationale behind the principle of prejudicial question is

to avoid conflicting decisions.23

The essential elements of a prejudicial question are provided in Section 7, Rule 111 of the Rules

of Court, to wit:

(a) the previously instituted civil action involves an issue similar or intimately related to the

issue raised in the subsequent criminal action, and

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

The concept of a prejudicial question involves a civil action and a criminal case. Yet, contrary to

San Miguel Properties submission that there could be no prejudicial question to speak of

because no civil action where the prejudicial question arose was pending, the action for specific

performance in the HLURB raises a prejudicial question that sufficed to suspend the

proceedings determining the charge for the criminal violation of Section 25 of Presidential

Decree No. 957. This is true simply because the action for specific performance was an action

civil in nature but could not be instituted elsewhere except in the HLURB, whose jurisdiction

over the action was exclusive and original.

The action for specific performance in the HLURB would determine whether or not San Miguel

Properties was legally entitled to demand the delivery of the remaining 20 TCTs, while the

criminal action would decide whether or not BF Homes directors and officers were criminally

liable for withholding the 20 TCTs. The resolution of the former must obviously precede that of

the latter, for should the HLURB hold San Miguel Properties to be not entitled to the delivery of

the 20 TCTs because Atty. Orendain did not have the authority to represent BF Homes in the

sale due to his receivership having been terminated by the SEC, the basis for the criminal

liability for the violation of Section 25 of Presidential Decree No. 957 would evaporate, thereby

negating the need to proceed with the criminal case.

A prejudicial question need not conclusively resolve the guilt or innocence of the accused. It is

enough for the prejudicial question to simply test the sufficiency of the allegations in the

information in order to sustain the further prosecution of the criminal case

TEODORO A. REYES vs. ETTORE ROSSI

G.R. No. 159823 February 18, 2013

FACTS: On October 31, 1997, petitioner Teodoro A. Reyes (Reyes) and Advanced Foundation

Construction Systems Corporation (Advanced Foundation), represented by its Executive Project

Director, respondent Ettore Rossi (Rossi), executed a deed of conditional sale involving the

purchase by Reyes of equipment consisting of a Warman Dredging Pump HY 300A worth

P10,000,000.00. The parties agreed therein that Reyes would pay the sum of P3,000,000.00 as

downpayment, and the balance of P7,000,000.00 through four post-dated checks. Reyes

complied, but in January 1998, he requested the restructuring of his obligation under the deed

of conditional sale by replacing the four post-dated checks with nine post-dated checks that

would include interest at the rate of P25,000.00/month accruing on the unpaid portion of the

obligation on April 30, 1998, June 30, 1998, July 31, 1998, September 30, 1998 and October 31,

1998.

Advanced Foundation assented to Reyes request, and returned the four checks. In turn, Reyes

issued and delivered the following nine postdated checks in the aggregate sum of

P7,125,000.00 drawn against the United Coconut Planters Bank

Rossi deposited three of the post-dated checks (i.e., No. 72807, No. 79125 and No. 72808) on

their maturity dates in Advanced Foundations bank account at the PCI Bank in Makati. Two of

the checks were denied payment ostensibly upon Reyes instructions to stop their payment,

while the third (i.e., No. 72802) was dishonored for insufficiency of funds. Rossi likewise

deposited two more checks (i.e., No. 72809 and No. 72801) in Advanced Foundations account

at the PCI Bank in Makati, but the checks were returned with the notation Account Closed

stamped on them. He did not anymore deposit the three remaining checks on the assumption

that they would be similarly dishonored.

In the meanwhile, on July 29, 1998, Reyes commenced an action for rescission of contract and

damages in the Regional Trial Court in Quezon City (RTC). Rossi charged Reyes with five counts

of estafa and five counts of violation of Batas Pambansa Blg. 22 in the Office of the City

Prosecutor of Makati for the dishonor of checks and another criminal charge for violation of

Batas Pambansa Blg. 22 was lodged against Reyes in the Office of the City Prosecutor of Quezon

City for the dishonor of Check No. 72802.6.

On September 29, 1998, Reyes submitted his counter-affidavit in the Office of the City

Prosecutor of Makati, At the same time, Reyes assailed the jurisdiction of the Office of the City

Prosecutor of Makati over the criminal charges against him on the ground that he had issued

the checks in Quezon City; as well as argued that the Office of the City Prosecutor of Makati

should suspend the proceedings because of the pendency in the RTC of the civil action for

rescission of contract that posed a prejudicial question as to the criminal proceedings.

On November 20, 1998, the Assistant City Prosecutor handling the preliminary investigation

recommended the dismissal of the charges of estafa and the suspension of the proceedings

relating to the violation of Batas Pambansa Blg. 22 based on a prejudicial question. On January

5, 1999, the City Prosecutor of Makati approved the recommendation of the handling Assistant

City Prosecutor.

Rossi appealed the resolution of the City Prosecutor to the Department of Justice, but the

Secretary of Justice, , denied Rossis petition for review. After the denial of his motion for

reconsideration, Rossi challenged the resolutions of the Secretary of Justice by petition for

certiorari in the CA. CA granted the appeal of Rossi in so far as the issue of the existence of

prejudicial question is concerned but the dismissal of the complaint for estafa was affirmed.

ISSUE: WON there is a prejudicial question

HELD:

The rescission of a contract of sale is not a prejudicial question that will warrant the suspension

of the criminal proceedings commenced to prosecute the buyer for violations of the Bouncing

Checks Law (Batas Pambansa Blg. 22) arising from the dishonor of the checks the buyer issued

in connection with the sale.

A prejudicial question generally comes into play in a situation where a civil action and a criminal

action are both pending, and there exists in the former an issue that must first be determined

before the latter may proceed, because howsoever the issue raised in the civil action is resolved

would be determinative juris et de jure of the guilt or innocence of the accused in the criminal

case.16 The rationale for the suspension on the ground of a prejudicial question is to avoid

conflicting decisio. Reyes states that if the contract would be rescinded, his obligation to pay

under the conditional deed of sale would be extinguished, and such outcome would necessarily

result in the dismissal of the criminal proceedings for the violations of Batas Pambansa Blg. 22.It

is true that the rescission of a contract results in the extinguishment of the obligatory relation

as if it was never created, the extinguishment having a retroactive effect. The rescission is

equivalent to invalidating and unmaking the juridical tie, leaving things in their status before

the celebration of the contract.However, until the contract is rescinded, the juridical tie and the

concomitant obligations subsist.

To properly appreciate if there is a prejudicial question to warrant the suspension of the

criminal actions, reference is made to the elements of the crimes charged. The violation of

Batas Pambansa Blg. 22 requires the concurrence of the following elements, namely: (1) the

making, drawing, and issuance of any check to apply for account or for value; (2) the knowledge

of the maker, drawer, or issuer that at the time of issue he does not have sufficient funds in or

credit with the drawee bank for the payment of the check in full upon its presentment; and (3)

the subsequent dishonor of the check by the drawee bank for insufficiency of funds or credit or

dishonor for the same reason had not the drawer, without any valid cause, ordered the bank to

stop payment.21 The issue in the criminal actions upon the violations of Batas Pambansa Blg.

22 is, therefore, whether or not Reyes issued the dishonoured checks knowing them to be

without funds upon presentment. On the other hand, the issue in the civil action for rescission

is whether or not the breach in the fulfilment of Advanced Foundations obligation warranted

the rescission of the conditional sale. If, after trial on the merits in the civil action, Advanced

Foundation would be found to have committed material breach as to warrant the rescission of

the contract, such result would not necessarily mean that Reyes would be absolved of the

criminal responsibility for issuing the dishonored checks because, as the aforementioned

elements show, he already committed the violations upon the dishonor of the checks that he

had issued at a time when the conditional sale was still fully binding upon the parties. His

obligation to fund the checks or to make arrangements for them with the drawee bank should

not be tied up to the future event of extinguishment of the obligation under the contract of sale

through rescission. Indeed, under Batas Pambansa Blg. 22, the mere issuance of a worthless

check was already the offense in itself. Under such circumstances, the criminal proceedings for

the violation of Batas Pambansa Blg. 22 could proceed despite the pendency of the civil action

for rescission of the conditional sale.

As defined, a prejudicial question is one that arises in a case, the resolution of which is a logical

antecedent of the issue involved therein, and the cognizance of which pertains to another

tribunal. The prejudicial question must be determinative of the case before the court but the

jurisdiction to try and resolve the question must be lodged in another court or tribunal.

It is a question based on a fact distinct and separate from the crime but so intimately connected

with it that it determines the guilt or innocence of the accused, and for it to suspend the

criminal action, it must appear not only that said case involves facts intimately related to those

upon which the criminal prosecution would be based but also that in the resolution of the issue

or issues raised in the civil case, the guilt or innocence of the accused would necessarily be

determined. It comes into play generally in a situation where a civil action and a criminal action

are both pending and there exists in the former an issue which must be preemptively resolved

before the criminal action may proceed, because howsoever the issue raised in the civil action

is resolved would be determinative juris et de jure of the guilt or innocence of the accused in

the criminal case.

SSGT. JOSE M. PACOY v. HON. AFABLE E. CAJIGAL, PEOPLE OF THE

PHILIPPINES and OLYMPIO L. ESCUETA

G.R. No. 157472 September 28, 2007

FACTS: On July 4, 2002, an Information for Homicide was filed in the RTC against

petitioner committed as follows:That on or about the 18th day of March 2002, in the

Municipality of Mayantoc, Province of Tarlac, Philippines and within the jurisdiction of

this Honorable Court, the said accused with intent to kill, did then and there wilfully,

unlawfully and feloniously shot his commanding officer 2Lt. Frederick Esquita with his

armalite rifle hitting and sustaining upon 2Lt. Frederick Esquita multiple gunshot wounds

on his body which caused his instantaneous deathWith the aggravating circumstance of

killing, 2Lt. Frederick Esquita in disregard of his rank.4

On September 12, 2002, upon arraignment, petitioner, duly assisted by counsel de

parte, pleaded not guilty to the charge of Homicide. Respondent Judge set the pre-trial

conference and trial on October 8, 2002. However, on the same day and after the

arraignment, the respondent judge issued another Order, likewise dated September 12,

2002, directing the trial prosecutor to correct and amend the Information to Murder in

view of the aggravating circumstance of disregard of rank alleged in the Information

which public respondent registered as having qualified the crime to Murder.

Acting upon such Order, the prosecutor entered his amendment by crossing out the

word "Homicide" and instead wrote the word "Murder" in the caption and in the opening

paragraph of the Information. The accusatory portion remained exactly the same as that

of the original Information for Homicide, with the correction of the spelling of the victims

name from "Escuita" to "Escueta."

On October 8, 2002, the date scheduled for pre-trial conference and trial, petitioner was

to be re-arraigned for the crime of Murder. Counsel for petitioner objected on the ground

that the latter would be placed in double jeopardy, considering that his Homicide case

had been terminated without his express consent, resulting in the dismissal of the case.

As petitioner refused to enter his plea on the amended Information for Murder, the

public respondent entered for him a plea of not guilty.8

On October 28, 2002, petitioner filed a Motion to Quash with Motion to Suspend

Proceedings Pending the Resolution of the Instant Motion9 on the ground of double

jeopardy. Petitioner alleged that in the Information for Homicide, he was validly indicted

and arraigned before a competent court, and the case was terminated without his

express consent; that when the case for Homicide was terminated without his express

consent, the subsequent filing of the Information for Murder in lieu of Homicide placed

him in double jeopardy.

The respondent judge denied the Motion to Quash. He ruled that a claim of former

acquittal or conviction does not constitute double jeopardy and cannot be sustained

unless judgment was rendered acquitting or convicting the defendant in the former

prosecution; that petitioner was never acquitted or convicted of Homicide, since the

Information for Homicide was merely corrected/or amended before trial commenced and

did not terminate the same; that the Information for Homicide was patently insufficient in

substance, so no valid proceedings could be taken thereon; and that with the allegation

of aggravating circumstance of "disregard of rank," the crime of Homicide is qualified to

Murder.

Petitioner filed a Motion to Inhibit with attached Motion for Reconsideration. In his

Motion to Inhibit, he alleged that the respondent judge exercised jurisdiction in an

arbitrary, capricious and partial manner in mandating the amendment of the charge from

Homicide to Murder in disregard of the provisions of the law and existing jurisprudence.

In his Order dated December 18, 2002,12 the respondent judge denied the Motion to

Inhibit and granted the Motion for Reconsideration, elevate the classification of the

crime of homicide to murder. Petitioner filed herein petition for certiorari.

ISSUE: WON judge committed grave abuse of discretion in denying the Motion to Inhibit

but granting the Motion for reconsideration

HELD:

We find no merit in petitioner's contention that the respondent judge committed grave

abuse of discretion in amending the Information after petitioner had already pleaded not

guilty to the charge in the Information for Homicide. The argument of petitioner --

Considering the fact that the case for Homicide against him was already terminated

without his express consent, he cannot anymore be charged and arraigned for Murder

which involve the same offense. The petitioner argued that the termination of the

information for Homicide without his express consent is equivalent to his acquittal. Thus,

to charge him again, this time for Murder, is tantamount to placing the petitioner in

Double Jeopardy.

It may accordingly be posited that both amendment and substitution of the information

may be made before or after the defendant pleads, but they differ in the following

respects:

1. Amendment may involve either formal or substantial changes, while substitution

necessarily involves a substantial change from the original charge;

2. Amendment before plea has been entered can be effected without leave of court, but

substitution of information must be with leave of court as the original information has to

be dismissed;

3. Where the amendment is only as to form, there is no need for another preliminary

investigation and the retaking of the plea of the accused; in substitution of information,

another preliminary investigation is entailed and the accused has to plead anew to the

new information; and

4. An amended information refers to the same offense charged in the original

information or to an offense which necessarily includes or is necessarily included in the

original charge, hence substantial amendments to the information after the plea has

been taken cannot be made over the objection of the accused, for if the original

information would be withdrawn, the accused could invoke double jeopardy. On the

other hand, substitution requires or presupposes that the new information involves a

different offense which does not include or is not necessarily included in the original

charge, hence the accused cannot claim double jeopardy.

In determining, therefore, whether there should be an amendment under the first

paragraph of Section 14, Rule 110, or a substitution of information under the second

paragraph thereof, the rule is that where the second information involves the same

offense, or an offense which necessarily includes or is necessarily included in the first

information, an amendment of the information is sufficient; otherwise, where the new

information charges an offense which is distinct and different from that initially charged,

a substitution is in order.

There is identity between the two offenses when the evidence to support a conviction

for one offense would be sufficient to warrant a conviction for the other, or when the

second offense is exactly the same as the first, or when the second offense is an

attempt to commit or a frustration of, or when it necessarily includes or is necessarily

included in, the offense charged in the first information. In this connection, an offense

may be said to necessarily include another when some of the essential elements or

ingredients of the former, as this is alleged in the information, constitute the latter. And,

vice-versa, an offense may be said to be necessarily included in another when the

essential ingredients of the former constitute or form a part of those constituting the

latter.20

In the present case, the change of the offense charged from Homicide to Murder is

merely a formal amendment and not a substantial amendment or a substitution as

defined in Teehankee.

While the amended Information was for Murder, a reading of the Information shows that

the only change made was in the caption of the case; and in the opening paragraph or

preamble of the Information, with the crossing out of word "Homicide" and its

replacement by the word "Murder." There was no change in the recital of facts

constituting the offense charged or in the determination of the jurisdiction of the court.

The averments in the amended Information for Murder are exactly the same as those

already alleged in the original Information for Homicide, as there was not at all any

change in the act imputed to petitioner, i.e., the killing of 2Lt. Escueta without any

qualifying circumstance. Thus, we find that the amendment made in the caption and

preamble from "Homicide" to "Murder" as purely formal.21

Section 14, Rule 110 also provides that in allowing formal amendments in cases in

which the accused has already pleaded, it is necessary that the amendments do not

prejudice the rights of the accused. The test of whether the rights of an accused are

prejudiced by the amendment of a complaint or information is whether a defense

As to the first requisite, the first jeopardy attaches only (a) after a valid indictment; (b)

before a competent court; (c) after arraignment; (d) when a valid plea has been entered;

and (e) when the accused was acquitted or convicted, or the case was dismissed or

otherwise terminated without his express consent.25

It is the conviction or acquittal of the accused or the dismissal or termination of the case

that bars further prosecution for the same offense or any attempt to commit the same or

the frustration thereof; or prosecution for any offense which necessarily includes or is

necessarily included in the offense charged in the former complaint or information.26

Petitioner's insistence that the respondent judge dismissed or terminated his case for

homicide without his express consent, which is tantamount to an acquittal, is misplaced.

Dismissal of the first case contemplated by Section 7 presupposes a definite or

unconditional dismissal which terminates the case.27 And for the dismissal to be a bar

under the jeopardy clause, it must have the effect of acquittal.1wphi1

The respondent judge's Order dated September 12, 2002 was for the trial prosecutor to

correct and amend the Information but not to dismiss the same upon the filing of a new

Information charging the proper offense as contemplated under the last paragraph of

Section 14, Rule 110 of the Rules of Court

Homicide is necessarily included in the crime of murder; thus, the respondent judge

merely ordered the amendment of the Information and not the dismissal of the original

Information. To repeat, it was the same original information that was amended by

merely crossing out the word "Homicide" and writing the word "Murder," instead, which

showed that there was no dismissal of the homicide case.

CLAUDIO J. TEEHANKEE, JR. v. HON. JOB B. MADAYAG and PEOPLE OF THE PHILIPPINES

G.R. No. 103102, 06 March 1992; Regalado, J.

FACTS:

Claudio J. Teehankee (herein petitioner) was originally charged with frustrated murder on an information dated 19 July 1991 for shooting one Maureen Navarro Hultman on the head.

After the prosecution had rested its case, petitioner was allowed to file a demurrer to evidence.

Hultman died in the course of trial before said motion could be filed. Private prosecutor Rogelio A. Vinluan filed an omnibus motion for leave of court

to file an amended information. An amended information was filed now charging the petitioner with murder. Petitioner filed an opposition and a rejoinder. Nonetheless, the court admitted the amended information and scheduled the

arraignment. Petitioner refused to be arraigned on the amended information for lack of

preliminary investigation thereon. Respondent Judge Job B. Madayag, ordered that a plea of not guilty be entered

for petitioner. Prosecution presented its evidence upon the order of the respondent judge. On the other side, the trial court appointed a counsel de oficio to represent the

petitioner as the latters previous counsel refuse participation in the proceedings due to legal issues raised.

Petitioner elevated this issue: (herein MAIN ISSUE posited by the petitioner) Whether an amended information involving a substantial element,

without preliminary investigation, after the prosecution has rested on the original information, may legally and validly be admitted

He further averred the following: a. That the additional allegation in the amended information, as herein

underscored, that the accused did then and there willfully, unlawfully, and feloniously attack, assault, and shoot with handgun Maureen Navarro Hultman who was hit in the head, thereby inflicting mortal wounds which directly caused the death of said Maureen Hultman x x x constitutes a substantial amendment since it involves a change in nature of the offense charged.

b. There is a need to establish that the same mortal wounds, which were initially frustrated (sic) by timely and able medical assistance, ultimately caused the death of the victim, because it could have been caused by a supervening act or fact which is not imputable to the offender.

c. Since the amended information for murder charges an entirely different offense, involving as it does a new fact1, it is essential that another preliminary investigation on the new charge be conducted before the new information be admitted.

1 Fact of victims death

RULING:

Before the main issue of the petitioner can be answered, it is necessary to answer the following sub-issues first:

a. Is there an amendment or substitution in information when the offense was changed from frustrated murder to (consummated) murder?

b. What kind of amendment does the new information constitute, formal or substantial?

Section 14, Rule 110 of the 1985 Rules on Criminal Procedure provides the margin between amendment and substitution:

Amendment Substitution

May involve either formal or substantial changes

Necessarily involves a substantial change from the original charge

Can be effected without leave of court if occurred before plea has been entered

There must always be with leave of court as the original information has to be dismissed

(Form) there is no need for another preliminary investigation and the retaking of the plea of the accused

Another preliminary investigation is entailed and the accused has to plead anew to the new information

Refers to same offense charged in the original information or to an offense which necessarily includes or is necessarily included in the original charge;

Requires or presupposes that the new information involves a different offense which does not include or is not necessarily included in the original charge;

Hence, substantial amendments to the information after the please has been taken cannot be made over the objection of the accused, for if the original information would be withdrawn, the accused can invoke double jeopardy.

Hence, the accused cannot claim double jeopardy.

FIRST SUB-ISSUE: Amendment, not substitution.

- Frustrated murder is a stage in the execution of the crime of murder, hence, the former is necessarily included in the latter.

. There is identity between the two offenses when the evidence to support a conviction for one offense would be sufficient to warrant conviction for the other, or when the second offense is exactly the same as the first, or when the second offense is an attempt to commit or a frustration of, or when it necessarily includes or is necessarily included in, the offense charged in the first information.

. Also, an offense may be said to necessarily include another when some of the essential elements or ingredients of the former constitute the latter.

- There is identity of the offenses charged in both the original and the amended information.

. What is involved in this case is not a variance in the nature of different offenses charged, but only a change in the stage of execution of the same offense from frustrated to consummated murder.

SECOND SUB-ISSUE: The amended portion of the information is a formal

amendment - An amendment either form or substance may be made at any time before the

accused enters a plea to the charge and thereafter as to all matters of form with leave of court.

- An objective appraisal of the amended information for murder filed against herein petitioner will readily show that the nature of the offense originally charged was not actually changed. Instead, an additional allegation, that is, the supervening fact of the death of the victim was merely supplied to aid the trial court in determining the proper penalty for the crime committed

- It is also noteworthy, that the accused committed a felonious act with intent to kill the victim. Thus, there is no question that whatever defense the petitioner may adduce under the original information for frustrated murder equally applies to the amended information for murder.

MAIN ISSUE: Since only formal amendment was involved and introduced in the second information, a preliminary investigation is unnecessary and cannot be demanded by the accused. - In the case of People v. Magpale, the court held that if the crime originally

charged is related to the amended charge such that an inquiry into one would el