EN BANC

[G.R. No. 69863-65 :  December 10, 1990.]

192 SCRA 183
LINO BROCKA, BENJAMIN CERVANTES, COSME GARCIA, RODOLFO SANTOS,
VALENTINO SALIPSIP, RICARDO VEGA, ERIC MARIANO, JOSE EMMANUEL OYALES,
RONNIE MATTA, ALFREDO VIAJE, RUBEN EUGENIO, REYNALDO ORTIZ, ORLANDO
ORTIZ, NOEL REYES, EDUARDO IMPERIAL, NESTOR SARMIENTO, FRANCO
PALISOC, VIRGILIO DE GUZMAN, ALBERTO REYES, JESSIE PINILI, ROMULO
AUGUIS, DOMINADOR RESURRECION III, RONNIE LAYGO, ROSAURO ROQUE,
CLARENCE SORIANO, OCTAVO DEPAWA, CARLITO LA TORRE, SEVERNO ILANO, JR.,
DOMINGO CAJIPE, ALAN ALEGRE, RAMON MARTINEZ, MA. GILDA HERNANDEZ,
EDNA P. VILLANUEVA, DOLLY S. CANU, MELQUIADES C. ATIENZA, ELIGIO P. VERA
CRUZ, ROGER C. BAGAN, ABUNDIO M. CALISTE, Petitioners, vs.  JUAN PONCE
ENRILE, MAJ. GENERAL FIDEL V. RAMOS, BRIG. GENERAL PEDRO BALBANERO,
COL. ABAD, COL. DAWIS, SERGIO APOSTOL, P/LT, RODOLFO M. GARCIA and JUDGE
RICARDO TENSUAN, Respondents.
 
DECISION
 
MEDIALDEA, J.:
 
This petition was originally filed on February 13, 1985 to secure the release of petitioners on
habeas corpus and to permanently enjoin the City Fiscal of Quezon City from investigating
charges of "Inciting to Sedition" against petitioners Lino Brocka, Benjamin Cervantes,
Cosme Garcia and Rodolfo Santos, (hereafter Brocka, et al.). On learning that the
corresponding informations for this offense has been filed by the City Fiscal against them on
February 11, 1985, a supplemental petition was filed on February 19, 1985 (p. 51, Rollo) to
implead the Presiding Judge, 1 and to enjoin the prosecution of Criminal Cases Nos. Q-
38023, Q-38024 and Q-38025 (p. 349, Rollo) and the issuance of warrants for their arrests,
including their arraignment. Since then President Ferdinand E. Marcos had ordered the
provisional release of Brocka, et al., the issue on habeas corpus has become moot and
academic (p. 396, Rollo). We shall thus focus on the question of whether or not the
prosecution of the criminal cases for Inciting to Sedition may lawfully be enjoined.:-cralaw

Petitioners were arrested on January 28, 1985 by elements of the Northern Police District
following the forcible and violent dispersal of a demonstration held in sympathy with the
jeepney strike called by the Alliance of Concerned Transport Organization (ACTO).
Thereafter, they were charged with Illegal Assembly in Criminal Cases Nos. 37783, 37787
and 37788 with Branch 108, Regional Trial Court, NCJR, Quezon City. 2
Except for Brocka, et al. who were charged as leaders of the offense of Illegal Assembly and
for whom no bail was recommended, the other petitioners were released on bail of
P3,000.00 each. Brocka, et al.'s provisional release was ordered only upon an urgent
petition for bail for which daily hearings from February 1-7, 1985 were held.
However, despite service of the order of release on February 9, 1985, Brocka, et al.
remained in detention, respondents having invoked a Preventive Detention Action (PDA)
allegedly issued against them on January 28, 1985 (p. 6, Rollo). Neither the original,
duplicate original nor certified true copy of the PDA was ever shown to them (p. 367, Rollo).

1
Brocka, et al. were subsequently charged on February 11, 1985 with Inciting to Sedition,
docketed as Criminal Cases Nos. Q-38023, Q-38024 and Q-38025 (p. 349, Rollo), without
prior notice to their counsel (p. 7, Rollo). The original informations filed recommended no
bail (p. 349, Rollo). The circumstances surrounding the hasty filing of this second offense
are cited by Brocka, et al. (quoting from a separate petition filed on their behalf in G.R. Nos.
69848-50 entitled "Sedfrey A. Ordoñez vs.  Col. Julian Arzaga, et al."), as follows:
"x  x  x
"6. The sham' character of the inquest examination concocted by all respondents is starkly
bizarre when we consider that as early as 10:30 A.M. today, February 11, 1985, Benjamin
Cervantes was able to contact undersigned petitioner by phone informing counsel that said
Benjamin Cervantes and the 4 other persons who are the subjects of this petition will be
brought before the Quezon City Fiscal at 2:30 for undisclosed reasons: subsequently,
another phone call was received by petitioning counsel informing him that the appearance
of Benjamin Cervantes et al. was to be at 2:00 P.M. When petitioning counsel arrived in the
office of Assistant City Fiscal Arturo Tugonon, the complainants' affidavits had not yet been
received by any of the panel of three assistant city fiscals, although the five persons under
detention were already in the office of said assistant fiscal as early as 2:00 P.M. It was only
at 3:00 when a representative of the military arrived bringing with him alleged statements
of complainants against Lino Broka (sic) et al. for alleged inciting to sedition, whereupon
undersigned counsel asked respondent Colonel Agapito Abad 'who ordered the detained
persons to be brought to the office of Assistant Fiscal Arturo Tugonon since there were no
charges on file;' and said Colonel Agapito Abad said aloud: 'I only received a telephone call
from Colonel Arzaga about 11:00 A.M. to bring the detained persons today — I am only the
custodian.' At 3:15, petitioning counsel inquired from the Records Custodian when the
charges against Lino Broka (sic) had been officially received and he was informed that the
said charges were never coursed through the Records Office.
"7. Under the facts narrated above, respondents have conspired to use the strong arm of
the law and hatched the nefarious scheme to deprive Lino Broka (sic) et al. the right to bail
because the utterances allegedly constituting inciting to sedition under Article 142 of the
Revised Penal Code are, except for varying nuances, almost verbatim the same utterances
which are the subject of Criminal Cases No. 37783, 37787 and 37788 and for which said
detained persons are entitled to be released on bail as a matter of constitutional right.
Among the utterances allegedly made by the accused and which the respondents claimed to
be violative of Article 142 of the Revised Penal Code are: 'Makiisa sa mga drivers, "Makiisa
sa aming layunin, "Digmaang bayan ang sagot sa kahirapan,' Itigil ang pakikialam ng
imperyalismo sa Pilipinas,' 'Rollback ng presyo ng langis sa 95 Centavos.' (See Annex B)
"8. That when petitioning counsel and other members of the defense panel requested that
they be given 7 days within which said counsel may confer with their clients — the detained
persons named above, the panel of assistant fiscals demanded that said detained persons
should sign a 'waiver' of their rights under Article 125 of the Revised Penal Code as a
condition for the grant of said request, which is a harassing requirement considering that
Lino Broka (sic) et al. were already under the detention, albeit illegally, and they could not
have waived the right under Rule 125 which they did not enjoy at the time the ruling was
made by the panel of assistant city fiscals." (pp. 4-6, Rollo in G.R. 69848-50).
They were released provisionally on February 14, 1985, on orders of then President F. E.
Marcos. The circumstances of their release are narrated in Our resolution dated January 26,
1985, as quoted in the Solicitor General's Manifestation as follows:
"G.R. Nos. 69848-50 (Sedfrey A. Ordoñez, Petitioner, vs. Col. Julian Arzaga, et al.,
Respondents). — Petitioner Sedfrey A. Ordoñez filed this petition for habeas corpus in behalf
of Lino Brocka, Benjamin Cervantes, Cosme Garcia, Alexander Luzano, and Rodolfo Santos,

2
who were all detained under a Preventive Detention Action (PDA) issued by then President
Ferdinand E. Marcos on January 28, 1985. They were charged in three separate
informations of the crime of illegal assembly under Art. 146, paragraph 3 of the Revised
Penal Code, as amended by PD 1834. On February 7, 1985, the Honorable Miriam Defensor
Santiago, Regional Trial Judge of Quezon City, issued a resolution in the above criminal
cases, directing the release of the five accused on bail of P6,000.00 for each of them, and
from which resolution the respondent fiscals took no appeal. Immediately thereafter, the
accused filed their respective bail bonds. This notwithstanding, they continued to be held in
detention by order of the respondent colonels; and on February 11, 1985, these same
accused were 'reinvestigated,' this time on charges of 'inciting to sedition' ** under Art. 142
of the Revised Penal Code, following which corresponding cases were filed. The respondents
complied with Our resolution requiring them, inter alia, to make a RETURN of the writ of
habeas corpus. In their RETURN, it appeared that all the accused had already been
released, four of them on February 15, 1985 and one February 8, 1985. The petitioner,
nevertheless, argued that the petition has not become moot and academic because the
accused continue to be in the custody of the law under an invalid charge of inciting to
sedition." (p. 395, Rollo).
Hence, this petition.
Brocka, et al. contend that respondents' manifest bad faith and/or harassment are sufficient
bases for enjoining their criminal prosecution, aside from the fact that the second offense of
inciting to sedition is illegal, since it is premised on one and the same act of attending and
participating in the ACTO jeepney strike. They maintain that while there may be a complex
crime from a single act (Art. 48, RTC), the law does not allow the splitting of a single act
into two offenses and filing two informations therefor, further, that they will be placed in
double jeopardy.
The primary issue here is the legality of enjoining the criminal prosecution of a case, since
the two other issues raised by Brocka, et al. are matters of defense against the sedition
charge.
We rule in favor of Brocka, et al. and enjoin their criminal prosecution for the second
offense of inciting to sedition.
Indeed, the general rule is that criminal prosecution may not be restrained or stayed by
injunction, preliminary or final. There are however exceptions, among which are:
"a. To afford adequate protection to the constitutional rights of the accused (Hernandez
vs.  Albano, et al., L-19272, January 25, 1967, 19 SCRA 95);
"b. When necessary for the orderly administration of justice or to avoid oppression or
multiplicity of actions (Dimayuga, et al. vs.  Fernandez, 43 Phil. 304; Hernandez
vs.  Albano, supra; Fortun vs.  Labang, et al., L-38383, May 27, 1981, 104 SCRA 607);
"c. When there is a pre-judicial question which is sub judice (De Leon vs.  Mabanag, 70 Phil.
202);
"d. When the acts of the officer are without or in excess of authority (Planas vs.  Gil, 67 Phil.
62);
"e. Where the prosecution is under an invalid law, ordinance or regulation (Young
vs.  Rafferty, 33 Phil. 556; Yu Cong Eng vs.  Trinidad, 47 Phil. 385, 389);
"f. When double jeopardy is clearly apparent (Sangalang vs.  People and Avendia, 109 Phil.
1140);
"g. Where the court has no jurisdiction over the offense (Lopez vs.  City Judge, L-25795,
October 29, 1966, 18 SCRA 616);

3
"h. Where it is a case of persecution rather than prosecution (Rustia vs.  Ocampo, CA-G.R.
No. 4760, March 25, 1960);
"i. Where the charges are manifestly false and motivated by the lust for vengeance (Recto
vs.  Castelo, 18 L.J. [1953], cited in Rañoa vs.  Alvendia, CA-G.R. No. 30720-R, October 8,
1962; Cf, Guingona, et al vs.  City Fiscal, L-60033, April 4, 1984, 128 SCRA 577); and
"j. When there is clearly no prima facie case against the accused and a motion to quash on
that ground has been denied (Salonga vs.  Paño, et al., L-59524, February 18, 1985, 134
SCRA 438).
"7. Preliminary injunction has been issued by the Supreme Court to prevent the threatened
unlawful arrest of petitioners (Rodriguez vs.  Castelo, L-6374, August 1, 1958)." (cited in
Regalado, Remedial Law Compendium, p. 188, 1988 Ed.)
In the petition before Us, Brocka, et al. have cited the circumstances to show that the
criminal proceedings had become a case of persecution, having been undertaken by state
officials in bad faith.
: nad

Respondents, on the other hand, had invoked a PDA in refusing Brocka, et al.'s release from
detention (before their release on orders of then Pres. Marcos). This PDA was, however,
issued on January 28, 1985, but was invoked only on February 9, 1985 (upon receipt of the
trial court's order of release). Under the guidelines issued, PDAs shall be invoked within 24
hours (in Metro Manila) or 48 hours (outside Metro Manila). (Ilagan v. Enrile, G.R. No.
70748, October 28, 1985, 139 SCRA 349). Noteworthy also is Brocka, et al.'s claim that,
despite subpoenas for its production, the prosecution merely presented a purported xerox
copy of the invoked PDA (par. 4, Counter-Rejoinder, p. 367, Rollo).
The foregoing circumstances were not disputed by the Solicitor General's office. In fact they
found petitioner's plight "deplorable" (par. 51, Manifestation, p. 396, Rollo).
The hasty filing of the second offense, premised on a spurious and inoperational PDA,
certainly betrays respondent's bad faith and malicious intent to pursue criminal charges
against Brocka, et al.
We have expressed Our view in the Ilagan case that "individuals against whom PDAs have
been issued should be furnished with the original, and the duplicate original, and a certified
true copy issued by the official having official custody of the PDA, at the time of the
apprehension" (supra, p. 369).
We do not begrudge the zeal that may characterize a public official's prosecution of criminal
offenders. We, however, believe that this should not be a license to run roughshod over a
citizen's basic constitutional lights, such as due process, or manipulate the law to suit
dictatorial tendencies.
We are impelled to point out a citizen's helplessness against the awesome powers of a
dictatorship. Thus, while We agree with the Solicitor General's observation and/or
manifestation that Brocka, et al. should have filed a motion to quash the information, We,
however, believe that such a course of action would have been a futile move, considering
the circumstances then prevailing. Thus, the tenacious invocation of a spurious and
inoperational PDA and the sham and hasty preliminary investigation were clear signals that
the prosecutors intended to keep Brocka, et al. in detention until the second offense of
"Inciting to Sedition" could be facilitated and justified without need of issuing a warrant of
arrest anew. As a matter of fact the corresponding informations for this second offense were
hastily filed on February 11, 1985, or two days after Brocka, et al.'s release from detention
was ordered by the trial judge on February 9, 1985.

4
Constitutional rights must be upheld at all costs, for this gesture is the true sign of
democracy. These may not be set aside to satisfy perceived illusory visions of national
grandeur.: nad

In the case of J. Salonga v. Cruz Paño, We point out:

"Infinitely more important than conventional adherence to general rules of criminal
procedure is respect for the citizen's right to be free not only from arbitrary arrest and
punishment but also from unwarranted and vexatious prosecution . . ." (G.R. No. L-59524,
February 18, 1985, 134 SCRA 438-at p. 448).
We, therefore, rule that where there is manifest bad faith that accompanies the filing of
criminal charges, as in the instant case where Brocka, et al. were barred from enjoying
provisional release until such time that charges were filed, and where a sham preliminary
investigation was hastily conducted, charges that are filed as a result should lawfully be
enjoined.
ACCORDINGLY, the petition is hereby GRANTED. The trial court is PERMANENTLY ENJOINED
from proceeding in any manner with the cases subject of the petition. No costs.
SO ORDERED.

5
  

G.R. No. 113630 May 5, 1994

DIOSDADO JOSE ALLADO and ROBERTO L. MENDOZA, petitioners,

vs.
HON. ROBERTO C. DIOKNO, Presiding Judge, Br. 62, Regional Trial Court, Makati, Metro Manila,
and PRESIDENTIAL ANTI-CRIME COMMISSION, respondents.

BELLOSILLO, J.:

On balance at the fulcrum once again are the intrinsic right of the State to prosecute perceived
transgressors of the law, which can be regulated, and the innate value of human liberty, which can
hardly be weighed.

Some twelve years ago we were confronted with a similar problem when former Senator Jovito R.
Salonga invoked before this Court his "right to life and liberty guaranteed by the due process clause,
alleging that no prima facie case has been established to warrant the filing of an information for
subversion against him."  We resolved the issue then and sustained him. He is now back before us,
1

this time as counsel pleading the cause of petitioners herein who, he claims, are in a situation far
worse than his predicament twelve (12) years ago. He postulates that no probable cause likewise
exists in this case, and what is worse is that no bail is recommended.

This petition gives us an opportunity to revisit the concept and implication of probable cause, the
existence of which is necessary for the prosecutor to have an accused held for trial and for a trial
judge to issue a warrant for his arrest. It is mandatory therefore that there be probable cause before
an information is filed and a warrant of arrest issued. Unfortunately, however, at times a criminal
case is filed, a warrant of arrest issued and a person consequently incarcerated on unsubstantiated
allegations that only feign probable cause.

Petitioners Diosdado Jose Allado and Roberto L. Mendoza, alumni of the College of Law, University
of the Philippines, are partners of the Law Firm of Salonga, Hernandez and Allado. In the practice of
their profession, and on the basis of an alleged extrajudicial confession of a security guard, they
have been accused of the heinous crime of kidnapping with murder by the Presidential Anti-Crime
Commission (PACC) and ordered arrested without bail by respondent judge.

The focal source of the information against petitioners is the sworn statement dated 16 September
1993 of Security Guard Escolastico Umbal, a discharge of the Philippine Constabulary, implicating
them as the brains behind the alleged kidnapping and slaying of one Eugen Alexander Van Twest, a
German national.   In that extrajudicial confession, Umbal claimed that he and his companions were
2

met by petitioners at Silahis Hotel and in exchange for P2.5M the former undertook to apprehend
Van Twest who allegedly had an international warrant of arrest against him. Thus, on 16 June 1992,
after placing him under surveillance for nearly a month, Umbal, Ex-policeman Rolando Gamatero,
AFPCIG Agent Roberto Santiago and SPO2 Sergio Antonino abducted Van Twest. They blocked his
blue Nissan Pathfinder under the Alabang overpass and forced him into their car. They brought him
to a "safe house" just behind the New Bilibid Prisons. Umbal was tasked to watch over their quarry.
After four (4) days, Gamatero, Santiago and Antonino returned to the "safe house" together with
petitioners and SPO2 Roger Bato, known to Umbal also as "Batok." SPO2 Bato faked the
interrogation of Van Twest, pretending it was official, and then made him sign certain documents.

6
The following day, Gamatero shot Van Twest in the chest with a baby armalite, after which Antonino
stabbed him repeatedly, cut off his private part, and later burned his cadaver into fine ashes using
gasoline and rubber tires. Umbal could not recall the exact date when the incident happened, but he
was certain it was about a year ago.

A day after Umbal executed his extrajudicial confession, the operatives of the PACC, armed with a
search warrant issued by Judge Roberto A. Barrios of the Regional Trial Court of Manila, Br.
11,   separately raided the two (2) dwellings of Santiago, one located at No. 7 Sangley Street, and
3

the other, along Amalingan Street, both in Green Heights Subdivision, Parañaque. The raiders
recovered a blue Nissan Pathfinder and assorted firearms and ammunition and placed Santiago and
his trusted aide, Efren Madolid, under arrest. Also arrested later that day were Antonio and Bato who
were found to have in their possession several firearms and ammunition and Van Twest's Cartier
sunglasses.

After evaluating the pieces of evidence gathered by PACC operatives, Sr., Supt. Panfilo Lacson,
Chief of PACC Task Force Habagat, referred the case to the Department of Justice for the institution
of criminal proceedings against AFPCIG Agent Roberto Santiago, SPO1 Sergio Antonino, SPO2
Roger Bato, Ex-policeman Rolando Gamatero, Efren Madolid, and petitioners herein, Atty. Diosdado
Jose Allado and Atty. Roberto L. Mendoza, for illegal possession of firearms and ammunition,
carnapping, kidnapping for ransom with murder, and usurpation of authority.   In his letter to the
4

State Prosecutor dated 17 September 1993, Sr. Supt. Lacson charged that —

Atty. Roberto L. Mendoza and Atty. Allado of Salonga, Hernandez and Allado Law
Offices . . . planned and conspired with other suspects to abduct and kill the German
national Alexander Van Twest in order to eliminate him after forcing the victim to sign
several documents transferring ownership of several properties amounting to several
million pesos and caused the withdrawal of P5M deposit from the victim's bank
account.

Thereafter, Senior State Prosecutor Ferdinand prosecutor Ferdinand R. Abesamis issued a

subpoena to petitioners informing them that a complaint
was filed against them by PACC TF-Habagat, directing them to appear on
30 September 1993 at the Multi-Purpose Hall of the Department of Justice and to submit their
counter-affidavits. Attached to the subpoena were copies of the affidavits executed by Umbal and
members of the team who raided the two (2) dwellings of Santiago.  5

Not satisfied merely with the affidavits attached to the subpoena, petitioner Mendoza moved for the
production of other documents for examination and copying to enable him to fully prepare for his
defense and to submit an intelligible counter-affidavit.   Specifically, petitioner Mendoza was
6

interested in (a) the "several documents transferring ownership of several properties amounting to
several million pesos and the withdrawal of P5M deposits from the victim's bank account," as stated
in the complaint; (b) the complete records of the PACC's investigation, including investigations on
other suspects and their disposition, PACC's Order of Battle for 1992 and early 1993; and, (c) such
other written statements issued in the above-entitled case, and all other documents intended to be
used in this case.   Petitioners likewise sought the inhibition of the members of the panel of
7

prosecutors, which was created to conduct the preliminary investigation, on the ground that they
were members of the legal staff assigned to PACC and thus could not act with impartiality.

In its Order of 11 October 1993,  the new panel of prosecutors composed of Senior State Prosecutor
8

Bernelito R. Fernandez as Chairman, with Rogelio F. Vista and Purita M. Deynata as Members,
confirmed that the motion for inhibition of the members of the old panel as well as the appeal to the
Secretary of Justice was resolved on 8 October 1993 resulting in the creation of a new panel.

7
Thereafter, the new panel granted the prayer of petitioner Mendoza for the production of additional
documents used or intended to be used against him. Meanwhile, Task Force Habagat, in
compliance with the order, submitted only copies of the request for verification of the firearms seized
from the accused, the result of the request for verification, and a Philippine Times Journal article on
the case with a marginal note of President Fidel V. Ramos addressed to the Chief of the Philippine
National Police directing the submission of a report and summary of actions taken thereon.

Not having been provided with the requested documents, petitioners nevertheless submitted their
respective counter-affidavits denying the accusations against them. 9

After a preliminary hearing where clarificatory questions were additionally propounded, the case was
deemed submitted for resolution. But before the new panel could resolve the case, SPO2 Bato filed
a manifestation stating that he was reconsidering the earlier waiver of his right to file counter-
affidavit,   and "in the greater interest of truth, justice and fair play" moved for the admissions of his
10

counter-affidavit   confessing participation in the abduction and slaying of Van Twest and implicating
11

petitioners Allado and Mendoza. Sometime in January 1994, however, before petitioners could
refute Bato's counter-affidavit, he moved to suppress it on the ground that it was extracted through
intimidation and duress.

On 3 February 1994, with the new penal failing to act on the twin motions of SPO2 Bato, petitioners
heard over the radio that the panel had issued a resolution finding a prima facie case against them
and that an information had already been filed in court. Upon verification with the Department of
Justice, however, petitioners were informed that the resolution was not yet ready for release, but
later that afternoon they were able to secure a copy of the information for kidnapping with murder
against them   and the 15-page undated resolution under the letterhead of PACC, signed by the
12

panel of prosecutors, with the Head of the PACC Task Force recommending approval thereof.   That 13

same day, the information was filed before the Regional Trial Court of Makati and raffled off to
Branch 62 presided by respondent Judge Roberto C. Diokno.

On 4 February 1994, respondent judge, in response to petitioners' request, gave them until 8
February 1994 to submit their opposition to the issuance of a warrant of arrest against all the
accused.   On 7 February 1994, petitioners complied with the order of respondent judge.   The
14 15

following day,
8 February 1994, petitioner Allado filed an appeal with the Secretary of Justice seeking review and
reversal of the undated resolution of the panel
of prosecutors,   which appeal was adopted by petitioner Mendoza.   On
16 17

11 February 1994, petitioner Allado moved to defer the proceedings before the trial court pending
resolution of his appeal before the Secretary of Justice.   However, on even date, respondent judge
18

issued the assailed warrant of arrest against petitioners.   Hence, on 15 February 1994, petitioners
19

filed with us the instant petition for certiorari and prohibition with prayer for a temporary restraining
order.

On 16 February 1994, we required respondents to comment on the petition and set the case for
hearing on 28 February 1994. After the hearing, we issued a temporary restraining order enjoining
PACC from enforcing the warrant of arrest and respondent judge from conducting further
proceedings on the case and, instead, to elevate the records to us. Meanwhile, on 27 February
1994, petitioners voluntarily surrendered at the Headquarters of the Capital Command (CAPCOM),
Philippine National Police (PNP), Camp Bagong Diwa, Bicutan, Metro Manila, and on 29 February
1994, they were released on the basis of our temporary restraining order.

Petitioners, in their 335-page petition, inclusive of annexes, principally contend that respondent
judge acted with grave abuse of discretion and in excess of jurisdiction in "whimsically holding that

8
there is probable cause against petitioners without determining the admissibility of the evidence
against petitioners and without even stating the basis of his findings,"   and in "relying on the
20

Resolution of the Panel and their certification that probable cause exists when the certification is
flawed."   Petitioners maintain that the records of the preliminary investigation which respondent
21

judge solely relied upon failed to establish probable cause against them to justify the issuance of the
warrant of arrest. Petitioners likewise assail the prosecutors' "clear sign of bias and impartiality
(sic)." 
22

On the other hand, the Office of the Solicitor General argues that the determination of probable
cause is a function of the judge who is merely required to personally appreciate certain facts to
convince him that the accused probably committed the crime charged.

Section 2, Art. III, of the 1987 Constitution, lays down the requirements for the issuance of a warrant
of arrest, i.e., a warrant of arrest shall issue only upon probable cause to be determined personally
by the judge after examination under oath or affirmation of the complainant and the witnesses he
may produce.

As early as 1915, in Buchanan v. Viuda de Esteban,   this Court speaking through Associate Justice
23

Sherman Moreland defined probable cause as "the existence of such facts and circumstances as
would excite the belief, in a reasonable mind, acting on the facts within the knowledge of the
prosecutor, that the person charged was guilty of the crime for which he was prosecuted." This
definition is still relevant today as we continue to cite it in recent cases.   Hence, probable cause for
24

an arrest or for the issuance of a warrant of arrest has been defined as such facts and
circumstances which would lead a reasonable discreet and prudent man to believe that an offense
has been committed by the person sought to be arrested.   And as a protection against false
25

prosecution and arrest, it is the knowledge of facts, actual or apparent, strong enough to justify a
reasonable man in the belief that he was lawful grounds for arresting the accused.  26

Pilapil v. Sandiganbayan   sets a standard for determining the existence of probable cause. While it
27

appears in that case that we have granted the prosecutor and the trial judge seemingly unlimited
latitude in determining the existence of absence of probable cause by affirming the long-standing
procedure that they can base their findings merely on their personal opinion and reasonable belief,
yet, this permissiveness should not be interpreted as giving them arbitrary powers and letting them
loose in the determination of the existence of probable cause, a delicate legal question which can
result in the harassment and deprivation of liberty of the person sought to be charged or arrested.
There we said —

Probable cause is a reasonable ground of presumption that a matter is, or may be,
well founded, such a state of facts in the mind of the prosecutor as would lead a
person of ordinary caution and prudence to believe, or entertain an honest or strong
suspicion, that a thing is so. The term does not mean "actual and positive cause" nor
does it import absolute certainty. It is merely based on opinion and reasonable belief.
Thus, a finding of probable cause does not require an inquiry into whether there is
sufficient evidence to procure a conviction. It is enough that it is it believed that the
act or omission complained of constitutes the offense charged. Precisely, there is a
trial for the reception of evidence of the prosecution in support of the charge.

Whether an act was done causing undue injury to the government and whether the
same was done with manifest partiality or evident bad faith can only be made out by
proper and sufficient testimony. Necessarily, a conclusion can be arrived at when the
case has already proceeded on sufficient proof.  28

9
Accordingly, before issuing a warrant of arrest, the judge must satisfy himself that based on the
evidence submitted there is sufficient proof that a crime has been committed and that the person to
be arrested is probably guilty thereof. In the Order of respondent judge dated 11 February 1994, it is
expressly stated that "[t]his court after careful evaluation of the evidence on record, believes and
rules that probable cause exists; and therefore, a warrant of arrest should be issued." However, we
are unable to see how respondent judge arrived at such ruling. We have painstakingly examined the
records and we cannot find any support for his conclusion. On the contrary, we discern a number of
reasons why we consider the evidence submitted to be insufficient for a finding of probable cause
against petitioners.

The Presidential Anti-Crime Commission relies heavily on the sworn statement of Security Guard
Umbal who supposedly confessed his participation in the alleged kidnapping and murder of Van
Twest. For one, there is serious doubt on Van Twest's reported death since the corpus delicti has
not been established, nor have his remains been recovered. Umbal claims that Van Twest was
completely burned into ashes with the use of gasoline and rubber tires from around ten o'clock in the
evening to six o'clock the next morning.   This is highly improbable, if not ridiculous. A human body
29

cannot be pulverized into ashes by simply burning it with the use of gasoline and rubber tires in an
open field. Even crematoria use entirely closed incinerators where the corpse is subjected to intense
heat.   Thereafter, the remains undergo a process where the bones are completely ground to dust.
30

In the case of Van Twest, there is not even any insinuation that earnest efforts were exerted to
recover traces of his remains from the scene of the alleged cremation.   Could it be that the
31

government investigators did to the place of cremation but could not find any? Or could it be that
they did not go at all because they knew that there would not be any as no burning ever took place?
To allege then that the body of Van Twest was completely burned to ashes in an open field with the
use merely of tires and gasoline is a tale too tall to gulp.

Strangely, if not awkwardly, after Van Twest's reported abduction on

16 June 1992 which culminated in his decimation by cremation, his counsel continued to represent
him before judicial and quasi-judicial proceedings. Thus on 31 July 1992, his counsel filed in his
behalf a petition for review before this Court, docketed as G.R. Nos. 106253, and on 18 March 1993,
a memorandum before the Securities and Exchange Commission in SEC Case No. 3896. On
26 November 1993, during the preliminary investigation conducted by the panel of prosecutors,
counsel again manifested that "even then and even as of this time, I stated in my counter-affidavit
that until the matter of death is to be established in the proper proceedings, I shall continue to
pursue my duties and responsibilities as counsel for Mr. Van Twest."   Hence, even Asst. Solicitor
32

General Estoesta believes that counsel of Van Twest doubted the latter's
death.   Obviously, counsel himself does not believe that his client is in fact already dead otherwise
33

his obligation to his client would have ceased except to comply with his duty "to inform the court
promptly of such death . . . and to give the name and residence of his executor, administrator,
guardian or other legal representative,"   which he did not.
34

Under the circumstances, we cannot discount petitioners' theory that the supposed death of Van
Twest who is reportedly an international fugitive from justice, a fact substantiated by petitioners and
never refuted by PACC, is a likely story to stop the international manhunt for his arrest. In this
regard, we are reminded of the leading case of U.S. v. Samarin   decided ninety-two years ago
35

where this Court ruled that when the supposed victim is wholly unknown, his body not found, and
there is but one witness who testifies to the killing, the corpus delicti is not sufficiently proved.

Then, the extrajudicial statement of Umbal suffers from material inconsistencies. In his sworn
statement, he said that he together with his cohorts was met by petitioners in Silahis Hotel where
they hatched the plan to abduct Van Twest.   However, during the preliminary investigation, he
36

10
stated that he was not part of the actual meeting as he only waited outside in the car for his
companions who supposedly discussed the plan inside Silahis Hotel.  37

Umbal also said that petitioners arrived with Bato and conducted a mock interrogation of Van Twest
who thereafter signed various documents upon being compelled to do so.   During the clarificatory
38

questioning, however, Umbal changed his story and said that he was asked to go outside of the
"safe house" at the time Van Twest was interrogated and thus did not see if Van Twest indeed
signed certain documents. Why Umbal had to be sent out of the "safe house,"
no explanation was offered. Did these documents really exist? Or could the
non-existence of these documents be the reason why PACC was not able to comply with the order
of the prosecutors to produce them during the preliminary investigation? And then, what happened
to the P2.5M that was supposedly offered by petitioners in exchange for the abduction of Van
Twest? These and more remain unanswered.

Most perplexing however is that while the whole investigation was supposedly triggered off by
Umbal's confession of 16 September 1993, the application of the PACC operatives for a search
warrant to be served in the
two (2) dwellings of Santiago was filed and granted by the Regional Trial Court of Manila on 15
September 1993, a day before Umbal executed his sworn statement. In support of the application,
the PACC agents claimed that Umbal had been in their custody since 10 September 1993.
Significantly, although he was said to be already under their custody, Umbal claims he was never
interrogated until 16 September 1993 and only at the security barracks of Valle Verde V, Pasig,
where he was a security guard.  39

The alleged counter-affidavit of SPO2 Bato, which the panel of prosecutors also considered in filing
the charges against petitioners, can hardly be credited as its probative value has tremendously
waned. The records show that the alleged counter-affidavit, which is self-incriminating, was filed
after the panel had considered the case submitted for resolution. And before petitioners could refute
this counter-affidavit, Bato moved to suppress the same on the ground that it was extracted through
duress and intimidation.

For sure, the credibility of Umbal is badly battered. Certainly, his bare allegations, even if the State
invokes its inherent right to prosecute, are insufficient to justify sending two lawyers to jail, or
anybody for that matter. More importantly, the PACC operatives who applied for a warrant to search
the dwellings of Santiago never implicated petitioners. In fact they claimed that according to Umbal,
it was Santiago, and not petitioners, who masterminded the whole affair.   While there may be bits of
40

evidence against petitioners'

co-accused, i.e., referring to those seized from the dwellings of Santiago, these do not in the least
prove petitioners' complicity in the crime charged. Based on the evidence thus far submitted there is
nothing indeed, much less is there probable cause, to incriminate petitioners. For them to stand trial
and be deprived in the meantime of their liberty, however brief, the law appropriately exacts much
more to sustain a warrant for their arrest — facts and circumstances strong enough in themselves to
support the belief that they are guilty of a crime that in fact happened. Quite obviously, this has not
been met.

Verily, respondent judge committed grave abuse of discretion in issuing the warrant for the arrest of
petitioners it appearing that he did not personally examine the evidence nor did he call for the
complainant and his witnesses in the face of their incredible accounts. Instead, he merely relied on
the certification of the prosecutors that probable cause existed. For, otherwise, he would have found
out that the evidence thus far presented was utterly insufficient to warrant the arrest of petitioners. In
this regard, we restate the procedure we outlined in various cases we have already decided.

11
In Soliven v. Makasiar,   we said that the judge (a) shall personally evaluate the report and the
41

supporting documents submitted by the fiscal regarding the existence of probable cause and, on the
basis thereof, issue a warrant of arrest; or, (b) if on the basis thereof he finds no probable cause,
may disregard the fiscal's report and require the submission of supporting affidavits of witnesses to
aid him in arriving at a conclusion on the existence of probable cause.

In People v. Inting,   we emphasized the important features of the constitutional mandate: (a) The
42

determination of probable cause is a function of the judge; it is not for the provincial fiscal or
prosecutor to ascertain. Only the judge and the judge alone makes this determination; (b) The
preliminary inquiry made by a prosecutor does not bind the judge. It merely assists him in making
the determination of probable cause. The judge does not have to follow what the prosecutor
presents to him. By itself, the prosecutor's certification of probable cause is ineffectual. It is the
report, the affidavits, the transcript of stenographic notes (if any), and all other supporting documents
behind the prosecutor's certification which are material in assisting the judge in his determination of
probable cause; and, (c) Judges and prosecutors alike should distinguish the preliminary inquiry
which determines probable cause for the issuance of a warrant of arrest from the preliminary
investigation proper which ascertains whether the offender should be held for trial or released. Even
if the two inquiries be conducted in the course of one and the same proceeding, there should be no
confusion about their objectives. The determination of probable cause for the warrant is made by the
judge. The preliminary investigation
proper — whether or not there is reasonable ground to believe that the accused is guilty of the
offense charged and therefore, whether or not he should be subjected to the expense, rigors and
embarrassment of trial — is a function of the prosecutor.

In Lim v. Felix,   where we reiterated Soliven v. Makasiar and People v. Inting, we said —

43

[T]he Judge does not have to personally examine the complainant and his witnesses.
The Prosecutor can perform the same functions as a commissioner for the taking of
the evidence. However, there should be a report and necessary documents
supporting the Fiscal's bare certification. All these should be before the Judge.

The extent of the Judge's personal examination of the report and its annexes
depends on the circumstances of each case. We cannot determine beforehand how
cursory or exhaustive the Judge's examination should be. The Judge has to exercise
sound discretion for, after all, the personal determination is vested in the Judge by
the Constitution. It can be as brief or as detailed as the circumstances of each case
require. To be sure, the judge must go beyond the Prosecutor's certification and
investigation report whenever necessary. He should call for the complainant and
witnesses themselves to answer the court's probing questions when the
circumstances of the case so require.

Clearly, probable cause may not be established simply by showing that a trial judge subjectively
believes that he has good grounds for his action. Good faith is not enough. If subjective good faith
alone were the test, the constitutional protection would be demeaned and the people would be
"secure in their persons, houses, papers and effects" only in the fallible discretion of the judge.  On
44

the contrary, the probable cause test is an objective one, for in order that there be probable cause
the facts and circumstances must be such as would warrant a belief by a reasonably discreet and
prudent man that the accused is guilty of the crime which has just been committed.   This, as we
45

said, is the standard. Hence, if upon the filing of the information in court the trial judge, after
reviewing the information and the documents attached thereto, finds that no probable cause exists
must either call for the complainant and the witnesses themselves or simply dismiss the case. There

12
is no reason to hold the accused for trial and further expose him to an open and public accusation of
the crime when no probable cause exists.

But then, it appears in the instant case that the prosecutors have similarly misappropriated, if not
abused, their discretion. If they really believed that petitioners were probably guilty, they should have
armed themselves with facts and circumstances in support of that belief; for mere belief is not
enough. They should have presented sufficient and credible evidence to demonstrate the existence
of probable cause. For the prosecuting officer "is the representative not of an ordinary party to a
controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its
obligation to govern all; and whose interest, therefore, in a criminal prosecution is not that it shall win
a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant
of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may
prosecute with earnestness and vigor — indeed, he should do so. But, while he may strike hard
blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods
calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a
just one" 
46

In the case at bench, the undue haste in the filing of the information and the inordinate interest of the
government cannot be ignored. From the gathering of evidence until the termination of the
preliminary investigation, it appears that the state prosecutors were overly eager to file the case and
secure a warrant for the arrest of the accused without bail and their consequent detention. Umbal's
sworn statement is laden with inconsistencies and improbabilities. Bato's counter-affidavit was
considered without giving petitioners the opportunity to refute the same. The PACC which gathered
the evidence appears to have had a hand in the determination of probable cause in the preliminary
inquiry as the undated resolution of the panel not only bears the letterhead of PACC but was also
recommended for approval by the head of the PACC Task Force. Then petitioners were given the
runaround in securing a copy of the resolution and the information against them.

Indeed, the task of ridding society of criminals and misfits and sending them to jail in the hope that
they will in the future reform and be productive members of the community rests both on the
judiciousness of judges and the prudence of prosecutors. And, whether it is a preliminary
investigation by the prosecutor, which ascertains if the respondent should be held for trial, or a
preliminary inquiry by the trial judge which determines if an arrest warrant should issue, the
bottomline is that there is a standard in the determination of the existence of probable cause, i.e.,
there should be facts and circumstances sufficiently strong in themselves to warrant a prudent and
cautious man to believe that the accused is guilty of the crime with which he is charged. Judges and
prosecutors are not off on a frolic of their own, but rather engaged in a delicate legal duty defined by
law and jurisprudence.

In this instance, Salonga v. Paño   finds application —

47

The purpose of a preliminary investigation is to secure the innocent against hasty,

malicious and oppressive prosecution, and to protect him from an open and public
accusation of crime, from the trouble, expense and anxiety of a public trial, and also
to protect the state from useless and expensive trial (Trocio v. Manta, 118 SCRA
241, citing Hashim v. Boncan, 71 Phil. 216). The right to a preliminary investigation is
a statutory grant, and to withhold it would be to transgress constitutional due process
(People v. Oandasa, 25 SCRA 277). However, in order to satisfy the due process
clause it is not enough that the preliminary investigation is conducted in the sense of
making sure that the transgressor shall not escape with impunity. A preliminary
investigation serves not only for the purposes of the State. More importantly, it is a
part of the guarantees of freedom and fair play which are birthrights of all who live in

13
 the country. It is therefore imperative upon the fiscal or the judge as the case may
be, to relieve the accused from the pain of going thru a trial once it is ascertained
that the evidence is insufficient to sustain a prima facie case or that no probable
cause exists to form a sufficient belief as to the guilt of the accused (emphasis
supplied).

The facts of this case are fatefully distressing as they showcase the seeming immensity of
government power which when unchecked becomes tyrannical and oppressive. Hence the
Constitution, particularly the Bill of Rights, defines the limits beyond which lie unsanctioned state
actions. But on occasion, for one reason or another, the State transcends this parameter. In
consequence, individual liberty unnecessarily suffers. The case before us, if uncurbed, can be
illustrative of a dismal trend. Needless injury of the sort inflicted by government agents is not
reflective of responsible government. Judges and law enforcers are not, by reason of their high and
prestigious office, relieved of the common obligation to avoid deliberately inflicting unnecessary
injury.

The sovereign power has the inherent right to protect itself and its people from vicious acts which
endanger the proper administration of justice; hence, the State has every right to prosecute and
punish violators of the law. This is essential for its self- preservation, nay, its very existence. But this
does not confer a license for pointless assaults on its citizens. The right of the State to prosecute is
not a carte blanche for government agents to defy and disregard the rights of its citizens under the
Constitution. Confinement, regardless of duration, is too high a price to pay for reckless and
impulsive prosecution. Hence, even if we apply in this case the "multifactor balancing test" which
requires the officer to weigh the manner and intensity of the interference on the right of the people,
the gravity of the crime committed and the circumstances attending the incident, still we cannot see
probable cause to order the detention of petitioners. 48

The purpose of the Bill of Rights is to protect the people against arbitrary and discriminatory use of
political power. This bundle of rights guarantees the preservation of our natural rights which include
personal liberty and security against invasion by the government or any of its branches or
instrumentalities. Certainly, in the hierarchy of rights, the Bill of Rights takes precedence over the
right of the State to prosecute, and when weighed against each other, the scales of justice tilt
towards the former. Thus, relief may be availed of to stop the purported enforcement of criminal law
where it is necessary to provide for an orderly administration of justice, to prevent the use of the
strong arm of the law in an oppressive and vindictive manner, and to afford adequate protection to
constitutional rights. 
49

Perhaps, this case would not have reached this Court if petitioners were ordinary people submissive
to the dictates of government. They would have been illegally arrested and detained without bail.
Then we would not have the opportunity to rectify the injustice. Fortunately, the victims of injustice
are lawyers who are vigilant of their rights, who fight for their liberty and freedom not otherwise
available to those who cower in fear and subjection.

Let this then be a constant reminder to judges, prosecutors and other government agents tasked
with the enforcement of the law that in the performance of their duties they must act with
circumspection, lest their thoughtless ways, methods and practices cause a disservice to their office
and maim their countrymen they are sworn to serve and protect. We thus caution government
agents, particularly the law enforcers, to be more prudent in the prosecution of cases and not to be
oblivious of human rights protected by the fundamental law. While we greatly applaud their
determined efforts to weed society of felons, let not their impetuous eagerness violate constitutional
precepts which circumscribe the structure of a civilized community.

14
WHEREFORE, the petition for certiorari and prohibition is GRANTED. The temporary restraining
order we issued on 28 February 1994 in favor of petitioners, Atty. Diosdado Jose Allado and Atty.
Roberto L. Mendoza, is made permanent. The warrant of arrest issued against them is SET ASIDE
and respondent Judge Roberto C. Diokno is ENJOINED from proceeding any further against herein
petitioners in Crim. Case No. 94-1757 of the Regional Trial Court of Makati.

G.R. No. 102070

DAVIDE, JR., J.:

Which court has jurisdiction over cases involving a violation of Article 312
of the Revised Penal Code where the intimidation employed by the accused
consists of a threat to kill?
This is the issue in this case.
Upon a complaint for Grave Threats and Usurpation of Real Property filed
against Ruperto Dimalata and Norberto Fuentes, and after the appropriate
preliminary investigation wherein Dimalata presented evidence showing
that he is a successor-in-interest of the alleged original owner of the land,
and that the threat was established to have been directed against the
complainants' tenant-encargado, Assistant Provincial Prosecutor Juliana
C. Azarraga of the Office of the Provincial Prosecutor of Capiz handed down
a Resolution, duly approved by the Provincial Prosecutor, finding prima
facie evidence of guilt for the crime charged.[1] The complainants are co-
owners of the parcel of land allegedly usurped.
On 5 July 1991, Assistant Provincial Prosecutor Azarraga filed the
corresponding Information[2] for "Usurpation of Real Rights In Property
defined and penalized under Article 312 in relation to Article 282 of the
Revised Penal Code" with the Regional Trial Court of Capiz. It was docketed
as Criminal Case No. 3386 and was raffled to Branch 15 thereof. The
Information reads as follows:
"The undersigned, with the prior authority and approval of the Provincial
Prosecutor, accuses RUPERTO DIMALATA and NORBERTO FUENTES of
the crime of Usurpation of Real Rights in Property defined and penalized
under Article 312 in relation to Article 282 of the Revised Penal Code,
committed as follows:
That sometime in the month of November, 1990, at Brgy. Cabugao,
Municipality of Panitan, Province of Capiz, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, conspiring,
confederating and mutually helping one another, by means of violence

15
against or intimidation of persons, did then and there wilfully, unlawfully
and feloniously enter, possess and occupy a portion of Lot No. 3000,
Panitan Cadastre, belonging to and owned in common by Teresita Silva and
the latter's brothers and sisters, after threatening to kill the tenant-
encargado if the latter would resist their taking of the portion of the land,
and thereafter, plowed, cultivated and planted palay on said portion of land
to the exclusion of the above-named owners thereof who, therefore, were
prevented from appropriating the property's produce or earning profits
therefrom from the time of the said usurpation by accused up to the present
to the damage and prejudice of the said Teresita Silva and her co-owners.
CONTRARY TO LAW."
On 17 July 1991, respondent Judge, as Presiding Judge of Branch 15 of the
court below, dismissed the case motu proprio on the ground of lack of
jurisdiction considering that "the crime committed by the accused falls
under Article 312 of the Revised Penal Code and the violence or
intimidation by the accused is (sic) a means to commit it or a mere incident
in its commission, hence, the threat is absorbed by the crime charged," and
considering that "the impossable (sic) fine as penalty is from P200.00 to
P500.00" because the value of the gain cannot be ascertained. The order of
dismissal[3] reads as follows:
"Upon personal examination and evaluation of the affidavit of the
complainant, annexes and the resolution in support of the information, the
crime committed by the accused falls under Article 312 of the Revised Penal
Code and the violence or intimidation by the accused is (sic) a means to
commit it or a mere incident in its commission, hence, the threat is
absorbed by the crime charged.
Under above (sic) facts, an (sic) act of the accused was not a means to
commit the other or by their single act, it resulted to (sic) two or more
offenses thereby making paragraph 1 of Article 282 the basis in imposing
the penalty. In fine, the act of the accused as alleged could not be a complex
crime under Article 312 in relation to Article 282. One is a distinct crime
from the other with separate elements to prove in case of prosecution.
On the basis of the allegations of the information the value of the gain
incurred for the act of violence or intimidation executed by the accused
cannot be ascertained, hence the impossable (sic) fine as penalty is from
P200 to P500 which is below the jurisdiction of this court.
For lack of jurisdiction over the case the herein information is dismissed."

16
Assistant Prosecutor Azarraga filed a motion to reconsider the above
order[4] alleging therein that it is true that the crime charged is not a
complex crime and if mention is made of Article 282, it is because "the
penalty of the crime defined under Article 312 is dependent on Article 282.
Article 312 'borrows' the pertinent provision on penalty from Article 282,
because Article 312 does not provide a penalty" as "Article 312 expressly
provides that the penalty for the violence shall likewise be imposed in
addition to the fine." In the instant case, the intimidation consists of the
threat to kill the encargado, penalized under Article 282 of the Revised
Penal Code; considering that the accused attained their purpose, the
penalty imposable thereunder is that which is one degree lower than that
prescribed by law for the crime they had threatened to commit -- homicide.
In his Order of 24 July 1991,[5] respondent Judge denied the motion for
reconsideration. The order reads:
"This refers to the motion for reconsideration on (sic) the order of this
court dated July 17, 1991, dismissing the case for lack of jurisdiction over
the case as charged in the information.
The legal basis of the dismissal is founded on the fact that paragraph 1 of
Article 282, and Article 312, of the Revised Penal Code, are separate and
distinct offenses. They could not be made a complex crime. Both are simple
crimes where only one juridical right or interest is violated. Neither is
Article 312 a special complex crime. The mere circumstance that the two
crimes may be so related does not make them a special complex crime or be
treated (sic) like one for the purpose of imposing the penalty.
Seemingly, the information charges two (2) separate and distinct crimes,
one under paragraph 1, Article 282 and the other under Article 312, of the
Revised Penal Code. Close examination reveals that the violence or
intimidation by the accused as alleged therein is a means to commit the
crime under Article 312 or a mere incident in its commission. Under the
premises, the test of jurisdiction of the court over the case is the impossable
(sic) penalty under Article 312.
Above premises considered, the motion for reconsideration is denied.
SO ORDERED."
Hence, this petition was filed by Assistant Provincial Prosecutor Azarraga
for and in behalf of the People of the Philippines against respondent Judge
to whom is imputed the commission of grave abuse of discretion amounting
to lack of jurisdiction for dismissing the criminal case. In support thereof, it

17
is argued that: (a) respondent Judge erred in not considering the penalty
prescribed under Article 282 of the Revised Penal Code as the basis for the
imposable penalty in the crime defined in Article 312 thereof, and (b) the
crime charged in the information is not complexed with Article 282 by the
mere allegation in the caption of the information that it is a prosecution
under said Article 312 in relation to Article 282.
Before acting on the petition, this Court required the Office of the Solicitor
General to comment on the petition filed by the Assistant Provincial
Prosecutor.[6]
In its Comment[7] filed on 13 November 1991, the Office of the Solicitor
General, while observing that the Assistant Provincial Fiscal lacks the
authority to file the instant petition as only the Solicitor General is
authorized by law to represent the People of the Philippines in cases of this
nature, declares, nevertheless, that the petition is impressed with merit
and, consequently, it ratifies the same and prays that it be admitted, given
due course and the questioned orders of the respondent Judge be reversed.
It, however, urges that the Assistant Provincial Prosecutor be advised to be
more circumspect in filing cases of this nature with this Court without the
intervention of, or prior authorization from, the Solicitor General.
In sustaining the position of the Assistant Provincial Prosecutor, the Office
of the Solicitor General argues that "in prosecution for Usurpation of Real
Property as provided for in Art. 312 of the Revised Penal Code, the over-all
penalty imposable on the accused is determined not only by the penalty
provided therein but also by the penalty incurred for the acts of violence
executed by him. x x x The accused in Crim. Case No. 3386 committed acts
of violence on the complainant's tenant. The violent acts with which the
accused were charged in attaining their wishes constituted threats to kill
Inocencio Borreros, if the latter prevented or prohibited both accused in
(sic) taking possession of the lot in question. Hence, accused's threats on
the life of Borreros may be considered as the 'violence or intimidation of
persons' mentioned in Art. 312, supra, as the means by which accused took
possession of the lot in question. And, under Art. 282, the imposable
penalty for the threatening act of both accused -- to kill Borreros -- is one
(1) degree lower than that prescribed by law for the crime accused
threatened to commit -- homicide; hence, the additional penalty imposable
on both accused is prision mayor minimum to prision mayor maximum,
which is well within the jurisdiction of (sic) Regional Trial Court."

18
Acting on the Comment of the Office of the Solicitor General, this Court
admitted the petition and required respondent Judge to file his Comment
thereon, which he complied with on 9 December 1991.[8] Defending his
challenged orders, respondent Judge argues that: (a) only the crime of
usurpation of real property is charged in the information; the violence
against or intimidation of persons alleged therein is an element of the crime
charged; it cannot constitute a distinct crime of grave threats or give rise to
the complex crime of usurpation of real property with gave threats as basis
for determining the jurisdiction of the court; (b) the clause "in addition to
the penalty incurred for the acts of violence executed by him" does not refer
to Article 282 of the Revised Penal Code; both Articles 312 and 282 are
distinct offenses where only one juridical interest is violated; if ever there
are resultant offenses arising from the acts of violence of the accused in
their occupation of the real property or usurpation of real rights over the
same, they shall be subject to other criminal prosecutions not necessarily
under Article 282. He further claims that although not dwelt upon in his
order of dismissal, there is another ground for the dismissal of the case; this
ground is the failure to allege intent to gain in the information, an essential
element of Article 312.
On 29 January 1992, this Court required the Assistant Provincial
Prosecutor to file a Reply to the respondent's Comment. Considering the
appearance of the Office of the Solicitor General, she moved to be excused
from complying with the same. The Office of the Solicitor General
subsequently filed the Reply.
This Court thereafter resolved to give due course to the petition.
Article 312 of the Revised Penal Code provides:
"ART.
312. Occupation of real property or usurpation of real rights in property.
-- Any person who, by means of violence against or intimidation of persons,
shall take possession of any real property or shall usurp any real rights in
property belonging to another, in addition to the penalty incurred for the
acts of violence executed by him, shall be punished by a fine of from 50
to 100 per centum of the gain which he shall have obtained, but not less
than 75 pesos.
If the value of the gain cannot be ascertained, a fine of from 200 to 500
pesos shall be imposed."

19
The Article is not as simple as it appears to be. What is meant by the phrase
"by means of violence against or intimidation of persons" and the clause "in
addition to the penalty incurred for the acts of violence executed by him"?
What penalty should be made the basis for determining which court shall
acquire jurisdiction over a case involving a violation of the said Article?
An inquiry into the nature of the crime may yield the desired answers.
The offense defined in this Article is one of the crimes against property
found under Title Ten, Book Two of the Revised Penal Code, and is
committed in the same manner as the crime
of robbery with violence against or intimidation of persons defined and
penalized in Article 294 of the same Code. The main difference between
these two (2) crimes is that the former involves real property or real rights
in property, while the latter involves personal property.[9] In short, Article
312 would have been denominated as robbery if the object taken is personal
property.
Accordingly, the phrase "by means of violence against or intimidation of
persons" in Article 312 must be construed to refer to the same phrase used
in Article 294. There are five (5) classes of robbery under the latter, namely:
(a) robbery with homicide (par. 1); (b) robbery with rape, intentional
mutilation, or the physical injuries penalized in subdivision 1 of Article 263
(par. 2); (c) robbery with the physical injuries penalized in subdivision 2 of
Article 263 (par. 3); (d) robbery committed with unnecessary violence or
with physical injuries covered by subdivisions 3 and 4 of Article 263 (par.
4); and (e) robbery in other cases, or simple robbery (par. 5), where the
violence against or intimidation of persons cannot be subsumed by, or
where it is not sufficiently specified so as to fall under, the first four
paragraphs.[10]
Paragraphs one to four of Article 294 indisputably involve the use of
violence against persons. The actual physical force inflicted results in death,
rape, mutilation or the physical injuries therein enumerated. The simple
robbery under paragraph five may cover physical injuries not included in
paragraphs two to four. Thus, when less serious physical injuries or slight
physical injuries are inflicted upon the offended party on the occasion of a
robbery, the accused may be prosecuted for and convicted of robbery under
paragraph five.[11]
It seems obvious that intimidation is not encompassed under paragraphs
one to four since no actual physical violence is inflicted; evidently then, it
can only fall under paragraph five.

20
But what is meant by the word intimidation? It is defined in Black's Law
Dictionary[12] as "unlawful coercion; extortion; duress; putting in fear". To
take, or attempt to take, by intimidation means "willfully to take, or attempt
to take, by putting in fear of bodily harm". As shown
in United States vs. Osorio,[13] material violence is not indispensable for
there to be intimidation; intense fear produced in the mind of the victim
which restricts or hinders the exercise of the will is sufficient. In an
appropriate case, the offender may be liable for either (a) robbery under
paragraph 5 of Article 294 of the Revised Penal Code if the subject matter is
personal property and there is intent to gain or animus furandi, or (b)
grave coercion under Article 286 of said Code if such intent does not exist.
[14]

In the crime of grave coercion, violence through force or such display of

force that would produce intimidation and control the will of the offended
party is an essential ingredient.[15]
In the crime of Grave Threats punished under Article 282 of the Revised
Penal Code, intimidation is also present. However, this intimidation,
as contra-distinguished from the intimidation in paragraph 5, Article 294
or Article 286 -- which is actual, immediate and personal -- is conditional
and not necessarily personal because it may be caused by an intermediary.
[16]

Paragraphs one to five of Article 294 are single, special and indivisible
felonies, not complex crimes as defined under Article 48 of the Revised
Penal Code.[17] The penalties imposed do not take into account the value of
the personal property taken, but the gravity of the effect or consequence of
the violence or intimidation.
Article 312 may also be considered as defining and penalizing the single,
special and indivisible crime of occupation of real property or usurpation of
real rights in property by means of violence against or intimidation of
persons. It is likewise not a complex crime as defined under Article 48.
However, while Article 294 provides a single penalty for each class of crime
therein defined, Article 312 provides a single, albeit two-tiered, penalty
consisting of a principal penalty, which is that incurred for the acts of
violence, and an additional penalty of fine based on the value of the gain
obtained by the accused. This is clear from the clause
"in addition to the penalty incurred for the acts of violence executed by him.
" For want of a better term, the additional penalty may be designated as
an incremental penalty.

21
What Article 312 means then is that when the occupation of real property is
committed by means of violence against or intimidation of persons, the
accused may be prosecuted under an information for the violation thereof,
and not for a separate crime involving violence or intimidation. But,
whenever appropriate, he may be sentenced to suffer the penalty for the
acts of violence and to pay a fine based on the value of the gain obtained.
Thus, if by reason or on the occasion of such occupation or usurpation, the
crime of homicide, or any of the physical injuries penalized in either
subdivisions 1 or 2 of Article 263 is committed; or when the same shall have
been accompanied by rape or intentional mutilation; or when, in the course
of its execution, the offender shall have inflicted upon any person not
responsible for its commission any of the physical injuries covered by
subdivisions 3 and 4 of Article 263; or when it is committed through
intimidation or through the infliction of physical injuries not covered by
subdivisions 1 to 4 of Article 263 of the Revised Penal Code, i.e., physical
injuries penalized under Articles 265 and 266 of the Revised Penal Code,
the accused may be convicted for the violation of Article 312. However, he
shall be sentenced: (a) to suffer the penalty for homicide, rape, intentional
mutilation and physical injuries provided under subdivisions 1 to 4 of
Article 263, other physical injuries[18] or for the intimidation, which may fall
under Article 282 (Grave Threats) or Article 286 (Grave Coercion) of the
Revised Penal Code, as the case may be, and (b) to pay a fine based on the
value of the gain obtained by him, which shall be an amount equivalent to
50 to 100 per centum of such gain, but in no case less than seventy-five
(P75.000) pesos, provided, however, that if such value cannot be
ascertained, the fine shall be from 200 to 500 (P200.00 to P500.00) pesos.
Respondent Judge then was wrong in his two (2) inconsistent propositions.
This Court cannot agree with the first which postulates that the threat was
the means employed to occupy the land and is therefore absorbed in the
crime defined and penalized in Article 312. If that were the case, the clause
"in addition to the penalty incurred for the acts of violence executed by
him" would be meaningless. As earlier explained, intimidation is a form of
violence which may come in the guise of threats or coercion. Besides, the
peculiar theory of absorption would result in an absurdity whereby a grave
or less grave felony defined in paragraph 1 of Article 282 and punished by
an afflictive correctional penalty[19] consisting of the deprivation of liberty,
would be absorbed by a crime (Article 312) penalized only by a fine. Neither
can this Court accept his second proposition that Article 282 and Article
312 refer to two (2) separate crimes, both of which "are simple crimes

22
where only one juridical right or interest is violated." As already stated, the
crime of occupation of real right in property is a single, special and
indivisible crime upon which is imposed a two-tiered penalty. Also, such a
proposition obfuscates the first proposition and ignores the distinction
between the two Articles. Article 286 is a crime against personal security
while Article 312 is a crime against real property or real rights thereon.
It does not, however, necessarily follow that just because the respondent
Judge is wrong, the petitioner is correct. This Court finds the proposition of
petitioner similarly erroneous and untenable. As earlier stated, the
complainants in the case are the co-owners of the lot and not the tenant-
encargado who was the person threatened. Thelatter was in actual physical
possession of the property for, as found by the investigating prosecutor:
"x x x This lot was tenanted by Inocencio Borreros after the latter was
installed thereat by Teresita Silva herself. Lot No. 3000 is an agricultural
land devoted to palay."[20]
Accepting this to be a fact and without necessarily inquiring into the effects
of P.D. No. 27 and R.A. No. 6657 on such tenancy, the tenant has, at the
very least, a real right over the property -- that of possession -- which both
accused were alleged to have usurped through the threat to kill. Borreros is,
therefore, the offended party who was directly threatened by the accused;
while the information expressly states this fact, Borreros is not, most
unfortunately, made the offended party. The information does not even
suggest that the accused threatened complainants or their families with the
infliction upon their persons, honor or property of any wrong amounting to
a crime so as to bring the former within the purview of Article 282 of the
Revised Penal Code. At most, the liability of the accused to the
complainants would only be civil in nature. Hence, to the extent that it
limits the offended parties to just the co-owners of the property who were
not even in possession thereof, the information in question does not charge
an offense.[21] It may, therefore, be dismissed in accordance with Section 3
(a), Rule 117 of the Rules of Court. Considering, however, that both accused
have not yet been arraigned, the information may be accordingly amended
to include the tenant as the offended party. This of course is on the
assumption that the accused usurped the tenant's real right with intent to
gain or with animus furandi; for without such intent, he could only be
charged with coercion.[22] In so holding, this Court does not preclude the
owner of a piece of property from being the offended party in the crime of
occupation of real property or usurpation of real rights in property by
means of intimidation consisting of a threat, under Article 282, provided,

23
however, that all the elements thereof are present. In such a case, the
penalty imposable upon the accused would be the penalty prescribed
therein plus a fine based on the value of the gain obtained by the accused.
As stated earlier, intimidation as found in Article 312 could result in either
the crime of grave threats under Article 282 or grave coercion under Article
286 of the Revised Penal Code. Thus, if complainants were in fact the
parties threatened and paragraph 1 of Article 282 is applicable, [23] the
Regional Trial Court would have exclusive original jurisdiction over the
offense charged because the corresponding penalty for the crime would
be prision mayor, which is the penalty next lower in degree to that
prescribed for the offense threatened to be committed -- homicide --
which is reclusion temporal,[24]and a fine based on the value of the gain
obtained by the accused.[25]
WHEREFORE, the Orders of respondent Judge of 17 July 1991 and 24
July 1991 in Criminal Case No. 3386 are hereby SET ASIDE. The petitioner
may amend the information as suggested above; otherwise, it should be
dismissed not for the reason relied upon by the respondent Judge, but
because it does not charge an offense.
No pronouncement as to costs.
SO ORDERED.

24
G.R. No. 127107 October 12, 1998

PETER PAUL DIMATULAC and VERONICA DIMATULAC, petitioners,

vs.
HON. SESINANDO VILLON in his capacity as Presiding Judge of the Regional Trial Court of
Pampanga, Branch 54; HON. TEOFISTO GUINGONA, in his capacity as Secretary of Justice;
MAYOR SANTIAGO YABUT, SERVILLANO YABUT, MARTIN YABUT and FORTUNATO
MALLARI, respondents.

DAVIDE, JR., J.:

The issues raised by petitioners in their Memorandum  and by the Office of the Solicitor General
1

in its Comment  in this special civil action for certiorari, prohibition and mandamus under
2

Rule 65 of the Rules of Court filed by petitioners, children of the deceased Police Officer 3
(PO3) Virgilio Dimatulac of Masantol, Pampanga, may be summarized as follows:

A. WHETHER THE OFFICE OF THE PROVINCIAL PROSECUTOR

COMMITTED GRAVE ABUSE OF DISCRETION IN: (1) GIVING
DUE COURSE TO THE MOTION FOR REINVESTIGATION BY
PRIVATE RESPONDENTS AGAINST WHOM WARRANTS OF
ARREST WERE ISSUED BUT WHO HAD NOT YET BEEN
BROUGHT INTO THE CUSTODY Of THE LAW; and (2) FILING
THE INFORMATION FOR HOMICIDE DESPITE KNOWLEDGE OF
THE APPEAL FROM SAID PROSECUTOR'S RESOLUTION TO
THE OFFICE OF THE SECRETARY OF JUSTICE.

B. WHETHER PUBLIC RESPONDENT JUDGE ACTED IN EXCESS

OF JURISDICTION IN PROCEEDING WITH THE ARRAIGNMENT
AND IN DENYING PETITIONERS' MOTIONS TO SET ASIDE
ARRAIGNMENT AND RECONSIDERATION THEREOF DESPITE
HIS KNOWLEDGE OF THE PENDENCY OF THE APPEAL AND
THE SUBMISSION OF VITAL EVIDENCE TO PROVE THAT
MURDER AND NOT HOMICIDE WAS COMMITTED BY THE
ACCUSED.

C. WHETHER PUBLIC RESPONDENT SECRETARY OF JUSTICE

COMMITTED GRAVE ABUSE OF DISCRETION IN
RECONSIDERING HIS ORDER FINDING THAT THE CRIME
COMMITTED WAS MURDER AND DIRECTING THE PROVINCIAL
PROSECUTOR TO AMEND THE INFORMATION FROM HOMICIDE
TO MURDER.

25
The records and the pleadings of the parties disclose the antecedents.

On 3 November 1995, SPO3 Virgilio Dimatulac was shot dead at his residence in Barangay
San Nicolas, Masantol, Pampanga.

On 5 November 1995, a complaint for Murder was filed before the Municipal Circuit Trial
Court (MCTC) of Macabebe-Masantol in Macabebe, Pampanga, by SPO1 Renato Layug of the
Masantol Police Station against private respondents Mayor Santiago Yabut, Martin Yabut,
Servillano Yabut, Evelino David, Justino Mandap, Casti David, Francisco Yambao, Juan
Magat, Arturo Naguit, Fortunato Mallari, Jesus de la Cruz, Joselito Miranda, SPO3 Gilberto
Malabanan, Aniano Magnaye, Vladimir Yumul, a certain "Danny," and a certain
"Koyang/Arding." The complaint was docketed as Criminal Case No. 95-360. After conducting
a preliminary examination in the form of searching questions and answers, and finding
probable cause, Judge Designate Serafin B. David of the MCTC issued warrants for the arrest
of the accused and directed them to file their counter-affidavits.

Only accused Evelino David, Justino Mandap, Juan Magat and Francisco Yambao were
arrested; while only Francisco Yambao submitted his counter affidavit. 3

On 1 December 1995, after appropriate proceedings, Judge David issued a Resolution  in 4

Criminal Case No. 95-360 finding reasonable ground to believe that the crime of murder had
been committed and that the accused were probably guilty thereof. His findings of fact and
conclusions were as follows:

That on or about November 3, 1995, all the accused under the leadership of
Mayor Santiago "Docsay" Yabut, including two John Does identified only as
Dan/Danny and Koyang/Arding, went to Masantol, Pampanga for the purpose
of looking for a certain PO3 Virgilio Dimatulac.

At first, the accused, riding on [sic] a truck, went to the Municipal Hall of
Masantol, Pampanga inquiring about PO3 Virgilio Dimatulac. Thereafter, they
went to the house of Mayor Lacap for the purpose of inquiring [about] the [the
location of the] house of PO3 Virgilio Dimatulac, until finally, they were able to
reach the house of said Virgilio Dimatulac at San Nicolas, Masantol,
Pampanga.

Upon reaching the house of PO3 Virgilio Dimatulac, the truck the accused were
all riding, stopped and parked in front of the house of said PO3 Virgilio
Dimatulac, some of the accused descended from the truck and positioned
themselves around the house while others stood by the truck and the Mayor
stayed [in] the truck with a bodyguard.

Accused Billy Yabut, Kati Yabut and Francisco Yambao, went inside the house
of Virgilio Dimatulac [and] were even offered coffee.

[A]ccused Yabut brothers (Kati and Billy) strongly suggested to Virgilio

Dimatulac to go down to see the Mayor outside in front of his house to say
sorry.

26
[W]hen Virgilio Dimatulac went down his house, suddenly [a] gun shot was
heard and then, the son of Virgilio Dimatulac, Peter Paul, started to shout the
following words: "What did you do to my father?!"

One of the men of Mayor "Docsay" Yabut shot Virgilio Dimatulac, and as a
consequence, he died; and before he expired, he left a dying declaration
pointing to the group of Mayor "Docsay" Yabut as the one responsible.

That right after Virgilio Dimatulac was shot, accused "Docsay" Yabut ordered
his men to go on board the truck and immediately left away leaving Virgilio
Dimatulac bleeding and asking for help.

On their way home to Minalin, accused Santiago "Docsay" Yabut gave money
to accused John Doe Dan/Danny and Francisco "Boy" Yambao was asked to
bring the accused John Doe to Nueva Ecija which he did.

Further, accused Santiago "Docsay" Yabut told his group to deny that they
ever went to Masantol.

The court, after having conducted preliminary examination on the complainant

and the witnesses presented, [is] satisfied that there is a [sic] reasonable
ground to believe that the crime of murder was committed and that the
accused in conspiring and confederating with one another are probably guilty
thereof.

Circumstantial evidence strongly shows the presence of conspiracy.

That in order not to frustrate the ends of justice, warrants of arrest were issued
against Santiago Yabut, Martin Yabut, Servillano Yabut, Francisco Yambao,
Avelino David, Casti David, Catoy Naguit, Fortunato Mallari, Boy dela Cruz, Lito
Miranda and Juan Magat with no bail recommended.

However, with respect to accused Dan/Danny and Koyang/Arding, the court

directed the police authorities to furnish the court [a] description personae of
the accused for the purpose of issuing the needed warrant of arrest.

The accused were furnish [sic] copies of the complaint and affidavits of
witnesses for them to file their counter-affidavits in accordance to [sic] law.

As of this date, only accused Francisco "Boy" Yambao filed his counter-
affidavit and all the others waived the filing of the same.

A close evaluation of the evidence submitted by the accused Francisco

Yambao which the court finds it [sic] straightforward and more or less credible
and seems to be consistent with truth, human nature and [the] natural course
of things and lack of motives [sic], the evidence of guilt against him is rather
weak [compared to] the others, which [is why] the court recommends a cash
bond of P50,000.00 for his provisional liberty, and the court's previous order of
no bail for said accused is hereby reconsidered.

27
 WHEREFORE, premises considered, the Clerk of Court is directed to forward
he entire records of the case to the Office of the Provincial Prosecutor of
Pampanga for further action, together with the bodies of accused Francisco
Yambao and Juan Magat to be remanded to the provincial Jail of
Pampanga.  (emphasis supplied)
5

In a sworn statement,  petitioner Peter Paul Dimatulac narrated that Mayor Santiago Yabut,
6

accompanied by a number of bodyguards, went to the residence of PO3 Virgilio Dimatulac to

talk about a problem between the Mayor and Peter Paul's uncle, Jun Dimatulac. Virgilio
warmly welcomed the group and even prepared coffee for them. Servillano and Martin Yabut
told Virgilio to come down from his house and apologize to the Mayor, but hardly had Virgilio
descended when Peter Paul heard a gunshot. While Peter Paul did not see who fired the shot,
he was sure it was one of Mayor Yabut's companions. Peter Paul opined that his father was
killed because the latter spoke to the people of Minalin, Pampanga, against the Mayor, Peter
Paul added in a supplemental statement (Susog na Salaysay)   that he heard Mayor Yabut
7

order Virgilio killed.

It his Sinumpaang Salaysay,  Police Officer Leopoldo Soriano of the Masantol Municipal

8

Police Station in Masantol, Pampanga, declared that on 3 November 1995, between 3:30 and
4:00 p.m., while he was at the polite station, three men approached him and asked for
directions to the house of Mayor Epifanio Lacap. Soriano recognized one of the men as SPO1
Labet Malabanan of Minalin, Pampanga. The group left after Soriano gave them directions,
but one of the three returned to ask whether PO3 Virgilio Dimatulac was on duty, to which
Soriano replied that Dimatulac was at home. The group left on board a military truck headed
for San Nicolas, Masantol, Pampanga. Later that day, SPO2 Michael Viray received a
telephone call at the police station reporting that someone had shot Virgilio Dimatulac.

Thereafter, Pampanga Assistant Provincial Prosecutor Sylvia Q. Alfonso-Flores conducted a

reinvestigation. However, it is not clear from the record whether she conducted the
same motu proprio or upon motion of private respondents Santiago Yabut, Servillano Yabut
and Martin Yabut (hereafter YABUTs). All of the accused who had not submitted their
counter-affidavits before the MCTC, except accused "Danny" and "Koyang/Arding,"
submitted their counter-affidavits to Assistant Provincial Prosecutor Alfonso Flores.

In her Resolution dated 29 January 1996,   Assistant Provincial Prosecutor Alfonso-Flores

9

found that the YABUTs and the assailant Danny, to the exclusion of the other accused, were
in conspiracy with one another, but that the offense committed was only homicide, not
murder. In support of such finding, Alfonso-Flores reasoned thus:

The complainant in this case charges the crime of Murder qualified by

treachery. It must be noted that to constitute treachery, two conditions must be
present, to wit, 1) the employment of the [sic] means of execution were give
[sic] the person attacked no opportunity to defend himself or to retaliate; and
2) the means of execution were deliberately or consciously adopted . . . .

In the instant case, the presence of the first requisite was clearly established
by the evidence, such that the attack upon the victim while descending the
stairs was so sudden and unexpected as to render him no opportunity to
defend himself or to retaliate. However, the circumstances, as portrayed by
witness Peter Paul Dimatulac, negate the presence of the second requisite.
According to the said witness, the victim was already descending when Mayor
Yabut commanded the assailant to shoot him, and immediately thereafter, he

28
 heard the gunshot. This would therefore show that the assailant did not
consciously adopt the position of the victim at the time he fired the fatal shot.
The command of Mayor Yabut to shoot came so sudden as to afford no
opportunity for the assailant to choose the means or method of attack. The act
of Mayor Yabut in giving the command to shoot further bolster[s] the fact that
the conspirator did not concert the means and method of attack nor the
manner thereof. Otherwise there would have been no necessity for him to give
the order to the assailant. The method and manner of attack was adopted by
the assailant at the spur of the moment and the vulnerable position of the
victim was not deliberately and consciously adopted. Treachery therefore
could not be appreciated and the crime reasonably believe[d] to have been
committed is Homicide as no circumstance would qualify the killing to murder.

Alfonso-Flores then ruled:

WHEREFORE, in view of the foregoing, it is hereby recommended that:

1. An information be filed with the proper court

charging Santiago, Servillano and Martin all
surnamed Yabut, and one John Doe alias Danny
as conspirators in the crime of Homicide;

2. The case be dismissed against accused Evelino

David, Justino Mandap a.k.a. Casti David,
Francisco Yambao, Juan Magat, Arturo Naguit,
Bladimir Dimatulac, Fortunato Mallari, Aniano
Magnaye, Gilberto Malabanan, Jesus dela Cruz
and Joselito Miranda.

Bail of P20,000.00 for each of the accused is likewise recommended.

The Resolution discloses that Alfonso-Flores conducted a hearing on 11 January 1996 and
clarificatory questions were propounded only to Peter Paul Dimatulac.

On 23 February 1996, before the Information for homicide was filed, complainants, herein
petitioners, appealed the resolution of Alfonso-Flores to the Secretary of the Department of
Justice (DOJ).   They alleged in their appeal that:
10

1. THE ASSISTANT PROVINCIAL PROSECUTOR NOT ONLY

ERRED IN RULING THAT THERE WAS NO TREACHERY TO
QUALIFY THE CRIME TO MURDER, BUT LIKEWISE ERRED IN
NOT APPRECIATING THE PRESENCE OF OTHER QUALIFYING
CIRCUMSTANCES, TO WIT:

(A) THAT THE ACCUSED COMMITTED THE CRIME

WITH THE AID OF ARMED MEN AND WITH THE
USE OF A PERSON TO INSURE OR AFFORD
IMPUNITY;

29
 (B) THAT THE CRIME WAS COMMITTED IN
CONSIDERATION OF A PRICE, REWARD, OR
PROMISE;

(C) THAT THE CRIME WAS COMMITTED ON THE

OCCASION OF A DESTRUCTIVE CYCLONE,
WHEN THE SUPER-TYPHOON "ROSING" WAS
RAGING ON NOVEMBER 3, 1995;

(D) THAT THE CRIME WAS COMMITTED WITH

EVIDENT PREMEDITATION;

2. THAT THE HONORABLE INVESTIGATING ASSISTANT

PROSECUTOR ERRED IN DISMISSING THE COMPLAINT
AGAINST FORTUNATO MALLARI AND FRANCISCO YAMBAO
BY RULING OUT CONSPIRACY WITH THE YABUT BROTHERS
AS AGAINST FORTUNATO MALLARI AND NOT CHARGING
FRANCISCO YAMBAO AS AN ACCESSORY TO MURDER.

To refute Alfonso-Flores' finding that the means of execution were not deliberately adopted,
petitioners asserted that the meeting of the accused and the victim was not accidental as the
former purposely searched for the victim at the height of a typhoon, while accused Mayor
Santiago Yabut even remarked to his co-accused "Danny," "Dikitan mo lang, alam mo na
kung ano ang gagawin mo, bahala ka na" (Just stay close to him, you know what to do).
Thus, Danny positioned himself near the stairs to goad the victim to come out of his house,
while Fortunato Mallari represented to the deceased that the latter was being invited by a
certain General Ventura. When the victim declined the invitation by claiming he was sick,
accused Servillano Yabut persuaded the victim to come down by saying, "[T]o settle this
matter, just apologize to the Mayor who is in the truck." In view of that enticement, the victim
came down, while Danny waited in ambush. To emphasize the accused's resolve to kill the
deceased, petitioners further narrated that when the deceased ran away after the first shot,
the gunman still pursued him, while Mayor Santiago Yabut, who was a doctor, kept away at a
safe distance and told everyone in the truck, "Tama na, bilisan ninyo," (That's enough, move
quickly) without giving medical assistance to the deceased and without exerting any effort to
arrest the gunman.

The Office of the Provincial Prosecutor of Pampanga was furnished with a copy of the
Appeal.

On 26 February 1996, Provincial Prosecutor Jesus Y. Manarang issued a

Resolution   ordering the release of accused Evelino David, Justino Mandap, Juan Magat and
11

Arturo Naguit (who were then detained) in view of the aforementioned resolution of Alfonso-
Flores, which, as stated in the order, the Provincial Prosecutor approved "on February 7,
1996."

On 28 February 1996, an Information   for Homicide, signed by Assistant Provincial

12

Prosecutor Flores and Provincial Prosecutor Jesus Y. Manarang, was filed before Branch 55
of the Regional Trial Court (RTC) in Macabebe, Pampanga, against the YABUTs and John
Doe alias "Danny Manalili" and docketed as Criminal Case No. 96-1667(M). The accusatory
portion of the information read as follows:

30
 That on or about the 3rd day of November, 1995, in the municipality of
Masantol, province of Pampanga, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, conspiring and confederating
together and mutually helping one another, with deliberate intent to take the
life of PO3 Virgilio A. Dimatulac, did then and there wilfully, unlawfully and
feloniously shoot the said PO3 Virgilio A. Dimatulac on his abdomen with the
use of a handgun, thereby inflicting, upon him a gunshot wound which
cause[d] the death of the said victim.

All contrary to law.

The Information, although dated 29 January 1996 was signed by Provincial Prosecutor
Manarang on "2/27/96", i.e., a day before its filing in court.

On 28 February 1996, Judge Reynaldo V. Roura, presiding judge of Branch 55, approved the
cash bonds of the YABUTs, each in the amount of P20,000.00, and recalled the warrants for
their arrest.  13

On 29 February 1996, Atty. Amado Valdez, who had entered his appearance as private
prosecutor, filed two (2) motions with the trial court: (1) a Motion to Issue Hold Departure
Order Against All Accuseds  [sic]; and an (2) Urgent Motion to Defer Proceedings,   copies of
14 15

which were furnished the Office of the Provincial Prosecutor of Pampanga. The second
motion was grounded on the pendency of the appeal before the Secretary of Justice and a
copy thereof was attached to the motion. Judge Roura set the motions for hearing on 8
March 1996.  16

On 7 March 1996, Judge Roura ordered the arrest of the remaining accused, Danny Manalili.  17

On 8 March 1996, the YABUTs filed their opposition   to the Motion to Issue Hold Departure
18

Order and the Motion to Defer Proceedings. The YABUTs asserted that, as to the first, by
posting bail bonds, they submitted to the jurisdiction of the trial court and were bound by the
condition therein to "surrender themselves whenever so required by the court, and to seek
permission from the court should any one of them desire to travel;" and, as to the second,
the pendency of the appeal before the Secretary of Justice was not a ground to defer
arraignment; moreover, the trial court had to consider their right to a speedy trial, especially
since there was no definite date for the resolution of the appeal. Then invoking this Court's
rulings in Crespo v. Mogul   and Balgos v. Sandiganbayan,   the YABUTs further asserted
19 20

that petitioners should have filed a motion to defer the filing of the information for homicide
with the Office of the Provincial Prosecutor, or sought, from the Secretary of Justice, an
order directing the Provincial Prosecutor to defer the filing of the information in court.

In a Reply   to the opposition, the private prosecution, citing Section 20 of Rule 114 of the
21

Rules of Court, insisted on the need for a hold-departure order against the accused; argued
that the accused's right to a speedy trial would not be impaired because the appeal to the
Secretary of Justice was filed pursuant to Department Order No. 223 of the DOJ and there
was clear and convincing proof that the killing was committed with treachery and other
qualifying circumstances not absorbed in treachery; and contended that the accused's
invocation of the right to a speedy trial was inconsistent with their filing of various dilatory
motions during the preliminary investigation. The YABUTs filed a Rejoinder   to this
22

Opposition.

31
On 26 March 1996, Judge Roura deferred resolution of the Motion to Issue a Hold Departure
Order until "such time that all the accused who are out on bail are arraigned," but denied the
Motion to Defer Proceedings as he found no compelling reason therefor, considering that
although the appeal was filed on 23 February 1996, "the private prosecution has not shown
any indication that [the] appeal was given due course by the Secretary of Justice." Judge
Roura also set the arraignment of the accused on 12 April 1996.  23

It would appear that the private prosecution moved to reconsider the order denying the
Motion to Defer Proceedings since, on 12 April 1996, Judge Roura issued an Order   giving 24

the private prosecutor "ten (10) days from today within which to file a petition
for certiorari questioning the order of the Court denying his motion for reconsideration of the
order of March 26, 1996." Arraignment was then reset to 3 May 1996.

On 19 April 1996, petitioners filed a motion to inhibit Judge Roura   from hearing Criminal
25

Case No. 96-1667(M) on the ground that he: (a) hastily set the case for arraignment while the
former's appeal in the DOJ was still pending evaluation; and (b) prejudged the matter, having
remarked in open court that there was "nothing in the records of the case that would qualify
the case into Murder." At the same time, petitioners filed a petition for prohibition   with the
26

Court of Appeals docketed therein as CA-G.R. SP No. 40393, to enjoin Judge Roura from
proceeding with the arraignment in Criminal Case No. 96-1667(M).

On 24 April 1996, Public Prosecutor Olimpio R. Datu filed a Manifestation and Comment   with 27

the trial court wherein he opposed the motion to inhibit Judge Roura; manifested that "there
is nothing in the record . . . which shows that the subject killing is qualified into murder;" and
announced that he "will no longer allow the private prosecutor to participate or handle the
prosecution of [the] case" in view of the latter's petition to inhibit Judge Roura.

On 29 April 1996, Judge Roura voluntarily inhibited himself and ordered the case transferred
to Branch 54 of the RTC, presided over by herein public respondent Judge Sesinando
Villon. 
28

On 30 April 1996, the Branch Clerk of Court of Branch 54 of the RTC received the record of
Criminal Case No. 96-1667(M).  29

On 30 April 1996, petitioners filed with the trial court a Manifestation   submitting, in
30

connection with their Motion to Defer Proceedings and Motion to Inhibit Judge Roura,
documentary evidence to support their contention that the offense committed was murder,
not homicide. The documents which they claimed were not earlier submitted by the public
prosecution were the following:

a. Counter-Affidavit of SPO1 Gilberto D. Malabanan.

b. Sinumpaang Salaysay of Vladimir Yumul y Dimatulac.

c. Counter-Affidavit of Francisco I. Yambao.

d. Counter-Affidavit of SPO2 Fortunato Mallari.

e. Sinumpaang Salaysay of Aniano Magnaye.

f. Sinumpaang Salaysay of Leopoldo Soriano.

32
 g. Transcript of Stenographic Notes of the Preliminary
Investigation of Criminal Case No. 95-360, containing the
testimony of:

a. Peter Paul Dimatulac

b. Vladimir D. Yumul

c. SPO1 Gilberto Malabanan

d. PO3 Alfonso Canilao

h. Investigation Report-dated November 4, 1995.

i. Dying declaration of Virgilio Dimatulac.

j. Sketch

k. Unscaled Sketch

Likewise on 30 April 1996, the Court of Appeals promulgated, in CA-G.R. SP No. 40393, a
Resolution   directing respondent therein to file his comment to the petition within ten days
31

from notice and to show cause within the same period "why no writ of preliminary injunction
should be issued as prayed for in the petition." However, the Court of Appeals "deferred
action" on the prayer for a temporary restraining order "until after the required comment
[was] submitted."

On 3 May 1996, petitioners filed an Ex-Parte Manifestation   with the RTC, furnishing the trial
32

court with a copy of the aforementioned resolution of the Court of Appeals and drawing the
attention of the trial court to the rulings of this Court in "Valdez vs. Aquilisan, (133 SCRA
150), Galman vs. Sandiganbayan, and Eternal Gardens Memorial Park Corp. vs. Court of
Appeals . . . as well as the decision in Paul G. Roberts vs. The Court of Appeals."

On 3 May 1996, Judge Villon issued an order resetting arraignment of the accused to 20 May
1996.   On the latter date, the YABUTs each entered a plea of not guilty. 
33 34

Alarmed by the conduct of arraignment, petitioners filed, on 27 May 1996, an Urgent Motion
to Set Aside Arraignment,  citing the resolution of 30 April 1996 of the Court of Appeals in
35

CA-G.R. SP No. 40393 which, inter alia, deferred resolution on the application for a temporary
restraining order "until after the required comment is submitted by the respondent;" stressed
that the filing of the information for the lesser offense of homicide was "clearly unjust and
contrary to law in view of the unquestionable attendance of circumstances qualifying the
killing to murder;" and asserted that a number of Supreme Court decisions supported
suspension of the proceedings in view of the pendency of their appeal before the DOJ.

On 31 May 1997, Judge Villon issued an Order   directing the accused to file their comment
36

on the Urgent Motion to Set Aside Arraignment within fifteen days from notice.

In a letter   addressed to the Provincial Prosecutor dated 7 June 1996, public respondent
37

Secretary Teofisto Guingona of the DOJ resolved the appeal in favor of petitioners. Secretary
Guingona ruled that treachery was present and directed the Provincial Prosecutor of San

33
Fernando, Pampanga "to amend the information filed against the accused from homicide to
murder," and to include Fortunato Mallari as accused in the amended information. The
findings and conclusions of Secretary Guingona read as follows:

Contrary to your findings, we find that there is treachery that attended the
killing of PO3 Dimatulac. Undisputedly, the victim was suddenly shot while he
was descending the stairs. The attack was unexpected as the victim was
unarmed and on his way to make peace with Mayor Yabut, he was
unsuspecting so to speak. From the circumstances surrounding his killing,
PO3 Dimatulac was indeed deprived of an opportunity to defend himself or to
retaliate.

Corollarily, we are also convinced that such mode of attack was consciously
and deliberately adopted by the respondents to ensure the accomplishment of
their criminal objective. The admission of respondent Malabanan is replete
with details on how the principal respondent, Mayor Yabut, in conspiracy with
the assailant and others, had consciously and deliberately adopted means to
ensure the execution of the crime. According to him, while they were on their
way to the victim's house, Mayor Yabut already instructed Danny, the
assailant, that, "Dikitan mo lang, alam no na king ano ang gagawin mo, bahala
ka na" This explains why Danny positioned himself near the stairs of the
victim's house armed with a handgun, such positioning was precisely adopted
as a means to ensure the accomplishment of their evil design and Mayor Yabut
ordered nobody else but Danny to shoot the victim while descending the stairs
as his position was very strategic to ensure the killing of the victim.

As has been repeatedly held, to constitute treachery, two conditions must be

present, to wit: (1) employment of means of execution that gives the person
[attacked] no opportunity to defend himself or retaliate; and (2) the means of
execution were deliberately or consciously adopted (People vs. Talaver, 230
SCRA 281 [1994]). In the case at bar, these two (2) requisites are present as
established from the foregoing discussion. Hence, there being a qualifying
circumstance of treachery, the crime committed herein is murder, not homicide
(People vs. Gapasin, 231 SCRA 728 [1994]).

Anent the alleged participation of respondents Fortunato Mallari and Francisco

Yambao, we find sufficient evidence against Mallari as part of the conspiracy
but not against Yambao. As can be gleaned from the sworn-statement of
Yambao, which appears to be credible, Mallari tried also to persuade the victim
to go with them, using as a reason that he (victim) was being invited by
General Ventura. He was also seen trying to fix the gun which was used in
killing the victim. These actuations are inconsistent with the claim that his
presence at the crime scene was merely passive.

On the other hand, we find credible the version and explanation of Yambao.
Indeed, under the obtaining circumstances, Yambao had no other option but to
accede to the request of Mayor Yabut to provide transportation to the
assailant. There being an actual danger to his life then, and having acted under
the impulse of an uncontrollable fear, reason dictates that he should be freed
from criminal liability. 
38

34
The YABUTs moved to reconsider the resolution,   citing Section 4 of
39

"Administrative/Administration Order No. 223 of the DOJ."  40

In an Ex-Parte Manifestation   dated 21 June 1996, petitioners called the trial court's attention
41

to the resolution of the Secretary of Justice, a copy of which was attached thereto. Later, in a
Manifestation and Motion   dated 1 July 1996, petitioners asked the trial court to grant their
42

motion to set aside arraignment. Attached thereto was a copy of the Manifestation and
Motion   of the Solicitor General dated 18 June 1996 filed with the Court of Appeals in CA-
43

G.R. SP No. 40393 wherein the Solicitor General joined cause with petitioners and prayed that
"in the better interest of justice, [the] Petition for Prohibition be GRANTED and a writ of
prohibition be ISSUED forthwith." In support of said prayer, the Solicitor General argued:

2. There is merit to the cause of petitioners. If the Secretary of

Justice would find their Appeal meritorious, the Provincial
Prosecutor would be directed to upgrade the Information to
Murder and extreme prejudice if not gross injustice would
thereby have been avoided.

3. Consequently, the undersigned counsel interpose no

objection to the issuance of a writ of prohibition enjoining
respondent Judge from holding further proceedings in Criminal
Case No. 96-1667-M, particularly in holding the arraignment of
the accused, pending resolution of the Appeals with the
Secretary of Justice.

The YABUTs opposed   petitioner's Manifestation and Motion dated 1 July 1996
44

because they had already been arraigned and, therefore, would be placed in double
jeopardy; and that the public prosecutor — not the private prosecutor — had control
of the prosecution of the case.

In his letter   dated 1 July 1996 addressed to the Provincial Prosecutor of Pampanga, the
45

Secretary of Justice set aside his order to amend the information from homicide to murder
considering that the appeal was rendered moot and academic by the arraignment of the
accused for homicide and their having entered their pleas of not guilty. The Secretary stated:

Considering that Santiago Yabut, Servillano Yabut and Martin Yabut had
already been arraigned on May 20, 1996 and had pleaded not guilty to the
charge of homicide, as shown by a copy of the court order dated May 20, 1996,
the petition for review insofar as the respondents-Yabut are concerned has
been rendered moot and academic.

However, the Secretary reiterated that Fortunato Mallari should be included in the
information for homicide.

On 30 July 1996, Public Prosecutor Jaime Bustos filed a Motion for Leave to Amend
Information and to Admit Amended Information.  The Amended Information   merely
46 47

impleaded Fortunato Mallari as one of the accused.

In his Order   of 1 August 1996, Judge Villon denied petitioners' motion to set aside
48

arraignment, citing Section 4, DOJ Department Order No. 223, and the letter of the Secretary
of Justice of 1 July 1996. Petitioners forthwith moved for reconsideration   of the order,
49

arguing that the Motion to Defer the Proceedings filed by petitioners was meritorious and did

35
not violate the accused's right to speedy trial; and that the DOJ had ruled that the proper
offense to be charged was murder and did not reverse such finding. Petitioners also cited the
Solicitor General's stand   in CA-G.R. SP No. 40393 that holding accused's arraignment in
50

abeyance was proper under the circumstances. Finally, petitioners contended that in
proceeding with the arraignment despite knowledge of a petition for prohibition pending
before the Court of Appeals, the trial court violated Section 3(d), Rule 71 of the Rules of Court
on indirect contempt. The YABUTs opposed the motion on the ground that it raised no
argument which had not yet been resolved.  51

On 3 September 1996, petitioners filed a Motion to Defer Arraignment of Accused Fortunato

Mallari,   which the trial court granted in view of petitioners' motion for reconsideration of the
52

court's order denying petitioners' motion to set aside private respondents' arraignment.   As 53

expected, Mallari moved to reconsider the trial court's order and clamored for consistency in
the trial court's rulings. 
54

In an order   dated 15 October 1996, Judge Villon denied reconsideration of the order denying
55

petitioners' motion to set aside arraignment, citing the YABUTs' right to a speedy trial and
explaining that the prosecution of an offense should be under the control of the public
prosecutor, whereas petitioners did not obtain the conformity of the prosecutor before they
filed various motions to defer proceedings. Considering said order, Judge Villon deemed
accused Mallari's motion for reconsideration moot and academic.  56

On 16 October 1996, the Court of Appeals promulgated its decision   in CA-G.R. SP No. 40393
57

dismissing the petition therein for having become moot and academic in view of Judge
Roura's voluntary inhibition, the arraignment of the YABUTs and the dismissal, by the
Secretary of Justice, of petitioners' appeal as it had been mooted by said arraignment.

Judge Villon was later detailed to Branch 24 of the Regional Trial Court of Manila, and Judge
Roura was ordered by the Supreme Court to preside over cases pending in Branch 54 of the
Regional Trial Court of Macabebe, Pampanga, which was previously presided over by Judge
Villon.   Judge Roura informed the Office of the Court Administrator and this Court that he
58

had already inhibited himself from hearing Criminal Case No. 96-1667(M).  59

On 28 December 1996, petitioners filed the instant Petition for Certiorari/Prohibition

and Mandamus. They urge this Court to reverse the order of respondent Judge denying their
Motion to Set Aside Arraignment; set aside arraignment of private respondents; order that no
further action be taken by any court in Criminal Case No. 96-1667(M) until this petition is
resolved; and order respondents Secretary of Justice and the prosecutors concerned to
amend the information from homicide to murder.

Petitioners insist that the killing of PO3 Virgilio Dimatulac was attended by treachery since
private respondents tricked the victim into coming out of his house and then shot him while
he was going down the stairs. There was, petitioners claim, "an orchestrated effort on the
part of [private respondents] to manipulate the rules on administrative appeals with the end
in view of evading prosecution for the [non-bailable] offense of murder," as shown by the
following events or circumstances:

(1) Assistant Provincial Prosecutor Alfonso-Flores downgraded

the nature of the crime committed to homicide, a bailable
offense, on strength of a motion for reinvestigation filed by the
YABUTs who had not yet been arrested.

36
 (2) Respondent Mayor and his companions returned to Minalin
after the killing and went into hiding for four (4) months until the
offense charged was downgraded.

(3) The information for homicide was nevertheless filed despite

notice to the Office of the Provincial Prosecutor of the appeal
filed with the Secretary of Justice and request to defer any
action on the case.

(4) The Office of the Public Prosecutor of Pampanga disallowed

the private prosecutor from further participating in the case.

(5) Judge Roura denied the motion to defer proceedings and

declared in open court that there was no prima facie case for
murder, notwithstanding the pendency of petitioners' appeal
with respondent Secretary of Justice.

(6) Even before receipt by petitioners of Judge Roura's order

inhibiting himself and the order regarding the transfer of the
case to Branch 54, public respondent Judge Villon set the case
for arraignment and, without notice to petitioners, forthwith
arraigned the accused on the information for homicide on 20
May 1996, despite the pendency of the petition for prohibition
before the Court of Appeals and of the appeal before the DOJ.

(7) The Pampanga Provincial Prosecutor's Office did not object

to the arraignment nor take any action to prevent further
proceedings on the case despite knowledge of the pendency of
the appeal.

(8) The Provincial Prosecutor did not comply with the resolution
of 7 June 1996 of the Secretary of Justice directing the
amendment of the information to charge the crime of murder.

Petitioners argue that in light of Roberts, Jr., v. Court of Appeals,   respondent Judge acted
60

in excess of his jurisdiction in proceeding with private respondents' arraignment for

homicide and denying petitioners' motion to set aside arraignment. Moreover, although
respondent Judge Villon was not the respondent in CA-G.R. SP No. 40393; he should have
deferred the proceedings just the same as the very issue in said case was whether or not the
RTC could proceed with the arraignment despite the pending review of the case by
respondent Secretary of Justice. Further, Judge Villon unjustly invoked private respondents'
right to a speedy trial, after a lapse of barely three (3) months from the filing of the
information on 23 February 1996; overlooked that private respondents were estopped from
invoking said right as they went into hiding after the killing, only to resurface when the
charge was reduced to homicide; and failed to detect the Provincial Prosecutor's bias in
favor of private respondents. Judge Villon should have been more circumspect as he knew
that by proceeding with the arraignment, the appeal with the DOJ would be rendered
technically nugatory.

Finally, petitioners submit that the DOJ rule prohibiting appeals from resolutions of
prosecutors to the Secretary of Justice once the accused had already been arraigned applies

37
only to instances where the appellants are the accused, since by submitting to arraignment,
they voluntarily abandon their appeal.

In their comment, private respondents contend that no sufficient legal justification exists to
set aside private respondents' arraignment, it having already been reset twice from 12 April
1996 to 3 may 1996, due to petitioners' pending appeals with the DOJ; and from 3 May 1996 to
20 May 1996, due to the transfer of this case to Branch 54. Moreover, as of the latter date, the
DOJ had not yet resolved petitioners' appeal and the DOJ did not request that arraignment be
held in abeyance, despite the fact that petitioners' appeal had been filed as early as 23
February 1996, at least 86 days prior to private respondents' arraignment. They point out that
petitioners did not move to reconsider the RTC's 26 March 1996 denial of the Motion to Defer,
opting instead for Judge Roura's recusal and recourse to the Court of Appeals, and as no
restraining order was issued by the Court of Appeals, it was but proper for respondent Judge
to proceed with the arraignment of private respondent, to which the public and private
prosecutors did not object.

Private respondents further argue that the decision of respondent Secretary, involving as it
did the exercise of discretionary powers, is not subject to judicial review. Under the principle
of separation of powers, petitioners' recourse should have been to the President. While as
regards petitioners' plea that the Secretary be compelled to amend the information from
homicide to murder, private respondents submit that mandamus does not lie, as the
determination as to what offense was committed is a prerogative of the DOJ, subject only to
the control of the President.

As regards DOJ Department Order No. 223, private respondents theorize that appeal by
complainants is allowed only if the complaint is dismissed by the prosecutor and not when
there is a finding of probable cause, in which case, only the accused can appeal. Hence,
petitioners' appeal was improper.

Finally, private respondents stress the fact that petitioners never appealed the withdrawal by
the public prosecutor of the private prosecutor's authority to handle the case.

In its comment for the public respondents, the Office of the Solicitor General (OSG) prays
that the petition be denied because: (a) in accordance with Section 4 of DOJ Order No. 223,
upon arraignment of the accused, the appeal to the Secretary of Justice shall be
dismissed motu proprio; (b) the filing of the information for homicide was in compliance with
the directive under Section 4(2), D.O. No. 223, i.e., an appeal or motion for reinvestigation
from a resolution finding probable cause shall not hold the filing of the information in court;
(c) the trial court even accommodated petitioners by initially deferring arraignment pending
resolution by the Court of Appeals of the petition for prohibition, and since said Court did not
issue any restraining order, arraignment was properly had; and (d) reliance on Roberts is
misplaced, as there, accused Roberts and others had not been arraigned and respondent
Judge had ordered the indefinite postponement of the arraignment pending resolution of
their petitions before the Court of Appeals and the Supreme Court.

We now consider the issues enumerated at the outset of this ponencia.

Plainly, the proceedings below were replete with procedural irregularities which lead us to
conclude that something had gone awry in the Office of the Provincial Prosecutor of
Pampanga resulting in manifest advantage to the accused, more particularly the YABUTs,
and grave prejudice to the State and to private complainants, herein petitioners.

38
First, warrants for the arrest of the YABUTs were issued by the MCTC, with no bail
recommended for their temporary liberty. However, for one reason or another undisclosed in
the record, the YABUTs were not arrested; neither did they surrender. Hence, they were never
brought into the custody of the law. Yet, Asst. Provincial Fiscal Alfonso Reyes, either motu
proprio or upon motion of the YABUTs, conducted a reinvestigation. Since said accused
were at large, Alfonso-Reyes should not have done so. While it may be true that under the
second paragraph of Section 5, Rule 112 of the Rules of Court, the provincial prosecutor may
disagree with the findings of the judge who conducted the preliminary investigation, as here,
this difference of opinion must be on the basis of the review of the record and evidence
transmitted by the judge. Were that all she did, as she had no other option under the
circumstance, she was without any other choice but to sustain the MCTC since the YABUTs
and all other accused, except Francisco Yambao, waived the filing of their counter-affidavits.
Then, further stretching her magnanimity in favor of the accused, Alfonso-Reyes allowed the
YABUTs to submit their counter-affidavits without first demanding that they surrender
because of the standing warrants of arrest against them. In short, Alfonso-Reyes allowed the
YABUTs to make a mockery of the law in order that they gain their provisional liberty pending
trial and be charged with the lesser offense of homicide.

Second, Alfonso-Reyes recommended a bond of only P20,000.00 for the YABUTs and co-
accused "Danny," despite the fact that they were charged with homicide and they were, at the
time, fugitives from justice for having avoided service of the warrant of arrest issued by the
MCTC and having failed to voluntarily surrender.

Third, Alfonso-Reyes was fully aware of the private prosecution's appeal to the DOJ from her
resolution. She could not have been ignorant of the fact that the appeal vigorously assailed
her finding that there was no qualifying circumstance attending the killing, and that the
private prosecution had convincing arguments to support the appeal. The subsequent
resolution of the Secretary of Justice confirmed the correctness of the private prosecution's
stand and exposed the blatant errors of Alfonso-Reyes.

Fourth, despite the pendency of the appeal, Alfonso-Reyes filed the Information for homicide
on 28 February 1996. It is interesting to note that while the information was dated 29 January
1996, it was approved by the Provincial Prosecutor only on 27 February 1996. This simply
means that the Office of the Prosecutor was not, initially, in a hurry to file the Information. No
undue prejudice could have been caused to the YABUTs if it were filed even later for the
YABUTs were still at large; in fact, they filed their bonds of P20,000.00 each only after the
filing of the Information. If Alfonso-Flores was extremely generous to the YABUTs, no
compelling reason existed why she could not afford the offended parties the same courtesy
by at least waiting for instructions from the Secretary of Justice in view of the appeal, if she
were unwilling to voluntarily ask the latter for instructions. Clearly, under the circumstances,
the latter course of action would have been the most prudent thing to do.

Fifth, as if to show further bias in favor of the YABUTs, the Office of the Provincial Prosecutor
of Pampanga did not even bother to motu proprio, inform the trial court that the private
prosecution had appealed from the resolution of Alfonso-Flores and had sought, with all the
vigour it could muster, the filing of an information for murder, as found by the MCTC and
established by the evidence before it.

Unsatisfied with what had been done so far to accommodate the YABUTs, the Office of the
Provincial Prosecutor did not even have the decency to agree to defer arraignment despite its
continuing knowledge of the pendency of the appeal. This amounted to defiance of the DOJ's
power of control and supervision over prosecutors, a matter which we shall later elaborate

39
on. Moreover, in an unprecedented move, the trial prosecutor, Olimpio Datu, had the temerity,
if not arrogance, to announce that "he will no longer allow the private prosecutor to
participate or handle the prosecution of [the] case" simply because the private prosecution
had asked for the inhibition of Judge Roura. Said prosecutor forgot that since the offended
parties here had not waived the civil action nor expressly reserved their right to institute it
separately from the criminal action, then they had the right to intervene in the criminal case
pursuant to Section 16 of Rule 1l0 of the Rules of Court.

It is undebatable that petitioners had the right to appeal to the DOJ from the resolution of
Alfonso-Flores. The last paragraph of Section 4 of Rule 112 of the Rules of Court provides:

If upon petition by a proper party, the Secretary of Justice reverses the

resolution of the provincial or city fiscal or chief state prosecutor, he shall
direct the fiscal concerned to file the corresponding information without
conducting another preliminary investigation or to dismiss or move for the
dismissal of the complaint or information.

It is clear from the above, that the proper party referred to therein could be either the
offended party or the accused.

More importantly, an appeal to the DOJ is an invocation of the Secretary's power of control
over prosecutors. Thus, in Ledesma v. Court of Appeals,   we emphatically held:
16

Decisions or resolutions of prosecutors are subject to appeal to the secretary

of justice who, under the Revised Administrative Code,   exercises the power
62

of direct control and supervision over said prosecutors; and who, may thus
affirm, nullify, reverse or modify their rulings.

Sec. 39, Chapter 8, Book IV in relation to Section[s] 5, 8, and 9, Chapter 2, Title

III of the Code gives the secretary of justice supervision and control over the
Office of the Chief Prosecutor and the Provincial and City Prosecution Offices.
The scope of his power of supervision and control is delineated in Section 38,
paragraph 1, Chapter 7, Book IV of the Code:

(1) Supervision and Control. — Supervision and control shall

include authority to act directly whenever a specific function is
entrusted by law or regulation to a subordinate; direct the
performance of duty; restrain the commission of acts; review,
approve, reverse or modify acts and decisions of subordinate
officials or units; . . . .

Supplementing the aforequoted provisions are Section 3 of R.A. 3783 and

Section 37 of Act 4007, which read:

Sec. 3. . . .

The Chief State Prosecutor, the Assistant Chief State

Prosecutors, the Senior State Prosecutors, and the State
Prosecutors shall . . . perform such other duties as may be
assigned to them by the Secretary of Justice in the interest of
public service.

40
 x x x           x x x          x x x

Sec. 37. The provisions of the existing law to the contrary

notwithstanding, whenever a specific power, authority, duty,
function, or activity is entrusted to a chief of bureau, office,
division or service, the same shall be understood as also
conferred upon the proper Department Head who shall have
authority to act directly in pursuance thereof, or to review,
modify, or revoke any decision or action of said chief of bureau,
office, division or service.

"Supervision" and "control" of a department head over his subordinates have

been defined in administrative law as follows:

In administrative law, supervision means overseeing or the

power or authority of an officer to see that subordinate officers
perform their duties. If the latter fail or neglect to fulfill them, the
former may take such action or step as prescribed by law to
make them perform such duties. Control, on the other hand,
means the power of an officer to alter or modify or nullify or set
aside what a subordinate officer had done in the performance of
his duties and to substitute the judgment of the former for that
of the latter.

Review as an act of supervision and control by the justice secretary over the
fiscals and prosecutors finds basis in the doctrine of exhaustion of
administrative remedies which holds that mistakes, abuses or negligence
committed in the initial steps of an administrative activity or by an
administrative agency should be corrected by higher administrative
authorities, and not directly by courts. As a rule, only after administrative
remedies are exhausted may judicial recourse be allowed.

DOJ Order No. 223 of 30 June 1993 recognizes the right of both the offended parties and the
accused to appeal from resolutions in preliminary investigations or reinvestigations, as
provided for in Section 1 and Section 4, respectively. Section 1 thereof provides, thus:

Sec. 1. What May Be Appealed. — Only resolutions of the Chief State

Prosecutor/Regional State Prosecutor/Prosecutor or City Prosecutor
dismissing a criminal complaint may be the subject of an appeal to the
Secretary of Justice except as otherwise provided in Section 4 hereof.

While the section speaks of resolutions dismissing a criminal complaint, petitioners herein
were not barred from appealing from the resolution holding that only homicide was
committed, considering that their complaint was for murder. By holding that only homicide
was committed, the Provincial Prosecutor's Office of Pampanga effectively "dismissed" the
complaint for murder. Accordingly, petitioners could file an appeal under said Section 1. To
rule otherwise would be to forever bar redress of a valid grievance, especially where the
investigating prosecutor, as in this case, demonstrated what unquestionably appeared to be
unmitigated bias in favor of the accused. Section 1 is not to be literally applied in the sense
that appeals by the offended parties are allowed only in cases of dismissal of the complaint,
otherwise the last paragraph of Section 4, Rule 112, Rules of Court would be meaningless.

41
We cannot accept the view of the Office of the Solicitor General and private respondents that
Section 1 of DOJ Department Order No. 223 is the controlling rule; hence, pursuant to the
second paragraph thereof the appeal of petitioners did not hold the filing of the information.
As stated above, Section 4 applies even to appeals by the respondents or accused. The
provision reads:

Sec. 4. Non-appealable cases. Exceptions. — No appeal may be taken from a

resolution of the Chief State Prosecutor/Regional State Prosecutor/Provincial
or City Prosecutor finding probable cause except upon a showing of manifest
error or grave abuse of discretion. Notwithstanding the showing of minifest
error or grave abuse of discretion, no appeal shall be entertained where the
appellant had already been arraigned. If the appellant is arraigned during the
pendency of the appeal, said appeal shall be dismissed motu proprio by the
Secretary of Justice.

An appeal/motion for reinvestigation from a resolution finding probable cause,

however, shall not hold the filing of the information in court. (emphasis
supplied)

The underlined portion indisputably shows that the section refers to appeals by respondents
or accused. So we held in Marcelo v. Court of
Appeals,   that nothing in the ruling in Crespo v. Mogul,   reiterated in Roberts v. Court of
63 64

Appeals,   forecloses the power of authority of the Secretary of Justice to review resolutions
65

of his subordinates in criminal cases despite an information already having been filed in
court. The Secretary of Justice is only enjoined to refrain, as far as practicable, from
entertaining a petition for review or appeal from the action of the prosecutor once a
complaint or information is filed in court. In any case, the grant of a motion to dismiss, which
the prosecution may file after the Secretary of Justice reverses an appealed resolution, is
subject to the discretion of the court. In Roberts we went further by saying that Crespo could
not have foreclosed said power or authority of the Secretary of Justice "without doing
violence to, or repealing, the last paragraph of Section 4, Rule 112 of the Rules of Court"
which is quoted above.

Indubitably then, there was on the part of the public prosecution, indecent haste in the filing
of the information for homicide, depriving the State and the offended parties of due process.

As to the second issue, we likewise hold that Judge Roura acted with grave abuse of
discretion when, in his order of 26 March l996,   he deferred resolution on the motion for a
66

hold departure order until "such time that all the accused who are out on bail are arraigned"
and denied the motion to defer proceedings for the reason that the "private prosecution has
not shown any indication that [the] appeal was given due course by the Secretary of Justice."
Neither rhyme nor reason or even logic, supports the ground for the deferment of the first
motion. Precisely, immediate action thereon was called for as the accused were out on bail
and, perforce, had all the opportunity to leave the country if they wanted to. To hold that
arraignment is a prerequisite to the issuance of a hold departure order could obviously
defeat the purpose of said order. As to the second motion, Judge Roura was fully aware of
the pendency of petitioner's appeal with the DOJ, which was filed as early as 23 February
1996. In fact, he must have taken that into consideration when he set arraignment of the
accused only on 12 April 1996, and on that date, after denying petitioners' motion to
reconsider the denial of the motion to defer proceedings, he further reset arraignment to 3
May 1996 and gave petitioners ten (10) days within which to file a petition for certiorari to
question his denial of the motion to defer and of the order denying the reconsideration. In

42
any event, the better part of wisdom suggested that, at the very least, he should have asked
petitioners as regards the status of the appeal or warned them that if the DOJ would not
decide the appeal within a certain period, then arraignment would proceed.

Petitioners did in fact file the petition with the Court of Appeals on 19 April 1996 and, at the
same time, moved to inhibit Judge Roura. These twin moves prompted Judge Roura to
"voluntarily" inhibit himself from the case on 29 April 1996   and to transfer the case to the
67

branch presided by public respondent Judge Villon. The latter received the records of the
case on 30 April 1996. From that time on, however, the offended parties did not receive any
better deal. Acting with deliberate dispatch, Judge Villon issued an order on 3 May 1996
setting arraignment of the accused on 20 May 1996. If Judge Villon only perused the record of
the case with due diligence, as should be done by anyone who has just taken over a new
case, he could not have helped but notice: (a) the motion to defer further proceedings; (2) the
order of Judge Roura giving petitioners ten days within which to file a petition with the Court
of Appeals; (3) the fact of the filling of such petition in CA-G.R. SP No. 40393; (4) the
resolution of the Court of Appeals directing respondents to comment on the petition and
show cause why the application for a writ of preliminary injunction should not be granted and
deferring resolution of the application for a temporary restraining order until after the
required comment was filed, which indicated a prima facie showing of merit; (5) the motion to
inhibit Judge Roura precisely because of his prejudgment that the crime committed was
merely homicide; (6) Judge Roura's subsequent inhibition; (7) various pieces of documentary
evidence submitted by petitioners on 30 April 1996 supporting a charge of murder, not
homicide; and (8) most importantly , the pending appeal with the DOJ.

All the foregoing demanded from any impartial mind, especially that of Judge Villon, a
cautious attitude as these were unmistakable indicia of the probability of a miscarriage of
justice should arraignment be precipitately held. However, Judge Villon cursorily ignored all
this. While it may be true that he was not bound to await the DOJ's resolution of the appeal,
as he had, procedurally speaking, complete control over the case and any disposition thereof
rested on his sound discretion,   his judicial instinct should have led him to peruse the
68

documents submitted on 30 April 1996 and to initially determine, for his own enlightenment
with serving the ends of justice as the ultimate goal, if indeed murder was the offense
committed; or, he could have directed the private prosecutor to secure a resolution on the
appeal within a specified time. Given the totality of circumstances, Judge Villon should have
heeded our statement in Marcelo   that prudence, if not wisdom, or at least, respect for the
69

authority of the prosecution agency, dictated that he should have waited for the resolution of
the appeal then pending before the DOJ. All told, Judge Villon should not have merely
acquiesced to the findings of the public prosecutor.

We do not then hesitate to rule that Judge Villon committed grave abuse of discretion in
rushing the arraignment of the YABUTs on the assailed information for homicide. Again, the
State and the offended parties were deprived of due process.

Up to the level then of Judge Villon, two pillars of the criminal justice system failed in this
case to function in a manner consistent with the principle of accountability inherent in the
public trust character of a public office. Judges Roura and Villon and prosecutors Alfonso-
Flores and Datu need be reminded that it is in the public interest that every crime should be
punished   and judges and prosecutors play a crucial role in this regard for theirs is the
70

delicate duty to see justice done, i.e., not to allow the guilty to escape nor the innocent to
suffer. 
71

43
Prosecutors must never forget that, in the language of Suarez v. Platon,   they are the
72

representatives not of an ordinary party to a controversy, but of a sovereignty whose

obligation to govern impartially is as compelling as its obligation to govern at all; and whose
interest, therefore, in a criminal prosecution is not that it shall win every case but that justice
be done. As such, they are in a peculiar and every definite sense the servants of the law,
whose two-fold aim is that guilt shall not escape or innocence suffer.

Prosecutors are charged with the defense of the community aggrieved by a crime, and are
expected to prosecute the public action with such zeal and vigor as if they were the ones
personally aggrieved, but at all times cautious that they refrain from improper methods
designed to secure a wrongful conviction.   With them lies the duty to lay before the court the
73

pertinent facts at the judge's disposal with strict attention to punctilios, thereby clarifying
contradictions and sealing all gaps in the evidence, with a view to erasing all doubt from the
court's mind as to the accused's innocence or guilt.

The judge, on the other hand, "should always be imbued with a high sense of duty and
responsibility in the discharge of his obligation to promptly and properly administer
justice."   He must view himself as a priest, for the administration of justice is akin to a
74

religious crusade. Thus, exerting the same devotion as a priest "in the performance of the
most sacred ceremonies of religious liturgy," the judge must render service with impartiality
commensurate with the public trust and confidence reposed in him.   Although the
75

determination of a criminal case before a judge lies within his exclusive jurisdiction and
competence,   his discretion is not unfettered, but rather must be exercised within
76

reasonable confines.   The judge's action must not impair the substantial rights of the
77

accused, nor the right of the State and offended party to due process of law.  78

Indeed, for justice to prevail, the scales must balance; justice is not to be dispensed for the
accused alone. The interests of society and the offended parties which have been wronged
must be equally considered. Verily, a verdict of conviction is not necessarily a denial of
justice; and an acquittal is not necessarily a triumph of justice, for, to the society offended
and the party wronged, it could also mean injustice.   Justice then must be rendered even-
79

handedly to both the accused, on one hand, and the State and offended party, on the other.

In this case, the abuse of discretion on the part of the public prosecution and Judges Roura
and Villon was gross, grave and palpable, denying, the State and the offended parties their
day in court, or in a constitutional sense, due process. As to said judges, such amounted to
lack or excess of jurisdiction, or that their court was ousted of the jurisdiction in respect
thereto, thereby nullifying as having been done without jurisdiction, the denial of the motion
to defer further hearings, the denial of the motion to reconsider such denial, the arraignment
of the YABUTs and their plea of not guilty.

These lapses by both the judges and prosecutors concerned cannot be taken lightly. We
must remedy the situation before the onset of any irreversible effects. We thus have no other
recourse, for as Chief Justice Claudio Teehankee pronounced in Galman v. Sandiganbayan:  80

The Supreme Court cannot permit such a sham trial and verdict and travesty of
justice to stand unrectified. The courts of the land under its aegis are courts of
law and justice and equity. They would have no reason to exist if they were
allowed to be used as mere tools of injustice, deception and duplicity to
subvert and suppress the truth, instead of repositories of judicial power whose
judges are sworn and committed to render impartial justice to all alike who
seek the enforcement or protection of a right or the prevention of redress of a

44
 wrong, without fear or favor and removed from the pressures of politics and
prejudice.

We remind all members of the pillars of the criminal justice system that theirs is not a
mere ministerial task to process each accused in and out of prison, but a noble duty
to preserve our democratic society under a rule of law.

Anent the third issue, it was certainly grave error for the DOJ to reconsider its 7 June 1996
resolution, holding that murder was committed and directing the Provincial Prosecutor to
accordingly amend the information, solely on the basis of the information that the YABUTs
had already been arraigned. In so doing, the DOJ relinquished its power of control and
supervision over the Provincial Prosecutor and the Assistant Provincial Prosecutors of
Pampanga; and meekly surrendered to the latter's inappropriate conductor even hostile
attitude, which amounted to neglect of duty or conduct prejudicial to the best interest of the
service, as well as to the undue haste of Judge Roura and Villon in respect of the
arraignment of the YABUTs. The sins of omission or commission of said prosecutors and
judges resulted, in light of the finding of the DOJ that the crime committed was murder, in
unwarranted benefit to the YABUTs and gross prejudice to the State and the offended parties.
The DOJ should have courageously exercised its power of control by taking bolder steps to
rectify the shocking "mistakes" so far committed and, in the final analysis, to prevent further
injustice and fully serve the ends of justice. The DOJ could have, even if belatedly, joined
cause with petitioners to set aside arraignment. Further, in the exercise of its disciplinary
powers over its personnel, the DOJ could have directed the public prosecutors concerned to
show cause why no disciplinary action should be taken against them for neglect of duty or
conduct prejudicial to the best interest of the service in not, inter alia, even asking the trial
court to defer arraignment in view of the pendency of the appeal, informing the DOJ, from
time to time, of the status of the case, and, insofar as prosecutor Datu was concerned, in
disallowing the private prosecutor from further participating in the case.

Finally, the DOJ should have further inquired into the vicissitudes of the case below to
determine the regularity of arraignment, considering that the appeal was received by the DOJ
as early as 23 February 1996.

We then rule that the equally hasty motu proprio "reconsideration" of the 7 June 1996
resolution of the DOJ was attended with grave abuse of discretion.

It is settled that when the State is deprived of due process in a criminal case by reason of
grave abuse of discretion on the part of the trial court, the acquittal of the accused 81 or the
dismissal of the case 82 is void, hence double jeopardy cannot be invoked by the accused. If this is
so in those cases, so must it be where the arraignment and plea of not guilty are void, as in this
case as above discussed.

WHEREFORE, the petition is GRANTED. The orders of Judge Reynaldo Roura of 26 March
1996 denying the Motion to Defer Proceeding and of 12 April 1996 denying the motion to
reconsider the denial of said Motion to Defer Proceedings, and the orders of respondent
Judge Sesinando Villon of 3 May 1996 resetting the arraignment to 20 May 1998 and of 25
October 1996 denying the Motion to Set Aside Arraignment in Criminal Case No. 96-1667(M)
are declared VOID and SET ASIDE. The arraignment of private respondents Mayor Santiago
Yabut, Servillano Yabut and Martin Yabut and their separate pleas of not guilty are likewise
declared VOID and SET ASIDE. Furthermore, the order of public respondent Secretary of
Justice of 1 July 1996 is SET ASIDE and his order of 7 June 1996 REINSTATED.

45
The Office of the Provincial Prosecutor of Pampanga is DIRECTED to comply with the order
(letter) of the Secretary of Justice of 7 June 1996 by forthwith filing with the trial court the
amended information for murder. Thereafter the trial court shall proceed in said case with all
reasonable dispatch.

No pronouncement as to costs.

SO ORDERED.

G.R. No. L-29270 November 23, 1971

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellant,

vs.
RODRIGO YORAC, defendant-appellee.

FERNANDO, J.:

The constitutional right not to be put twice in jeopardy for the same offense  was the basis for a 1

motion to quash filed by the accused, now appellee, Rodrigo Yorac. He was prosecuted for
frustrated murder arising allegedly from having assaulted, attacked, and hit with a piece of wood the
offended party, for which he had been previously tried and sentenced for slight physical injuries, his
plea being one of guilt. The later information for frustrated murder was based on a second medical
certificate after the lapse of one week from the former previously given by the same physician who,
apparently, was much more thorough the second time, to the effect that the victim did suffer a
greater injury than was at first ascertained. The lower court, presided by the Honorable Judge Nestor
B. Alampay, considering that there was no, supervening fact that would negate the defense of
double jeopardy, sustained the motion to quash in an order of June 21, 1968. The People appealed.
As the order complained of is, fully supported by the latest authoritative ruling of this
Tribunal, People v. Buling,  we have to affirm.
2

In the brief for the People of the Philippines, it was shown that the accused Yorac was charged with
slight physical injuries before the City Court of Bacolod, the offended party being a certain Lam Hock
who, according to the medical certificate issued in April 10, 1968 by a Dr. Rogelio Zulueta, a resident
physician of the Occidental Negros Provincial Hospital, was confined "since April 8, 1968 up to the
present time for head injury."  Then came a plea of guilty by the accused on April 16, 1968 resulting
3

in his being penalized to suffer ten days of arresto menor. He started serving his sentence forthwith.
On April 18, 1968, the provincial fiscal filed an information, this time in the Court of First Instance of
Negros Occidental, charging the same defendant with frustrated murder arising from the same act
against the aforesaid victim Lam Hock upon another medical certificate dated April 17, 1968 issued
by the same Dr. Zulueta. In the medical certificate of April 17, 1968, it was made to appear that the
confinement of the offended party in the hospital was the result of: "1. Contusion with lacerated
wound 4 inches parieto-occipital region scalp mid portion. 2. Cerebral concussion, moderately severe, secondary."  Moreover, it further
4

contained a statement that the X-ray finding did not yield any "radiographic evidence of fracture." The healing period barring complications,
was declared to be from eighteen to twenty-one days.5

46
Afterwards, a motion to quash was filed by the accused on June 10, 1968 on the ground that, having
been previously convicted of slight physical injuries by the City Court of Bacolod and having already
served the penalty imposed on him for the very same offense, the prosecution for frustrated murder
arising out of the same act committed against the same offended party, the crime of slight physical
injuries necessarily being included in that of frustrated murder, he would be placed in second
jeopardy if indicted for the new offense.  In its well-reasoned resolution of June 21, 1968 granting the
6

motion to quash and ordering the dismissal of a criminal case for frustrated murder against the
accused, Judge Alampay relied on People v. Buling which, in his opinion, was squarely applicable
as "nothing in the later medical certificate [indicated] that a new or supervening fact had developed
or arisen since the time of the filing of the original action" against the accused. A motion for
reconsideration being unavailing, an appeal was elevated to us.

As succinctly set forth in the brief of the People of the Philippines: "The sole issue in this case is
whether the defendant, who had already been convicted of slight physical injuries before the City
Court of Bacolod for injuries inflicted upon Lam Hock, and had served sentence therefore, may be
prosecuted anew for frustrated murder for the same act committed against the same person."  The 7

position taken by the appellant is in the affirmative but, as indicated at the outset, the controlling
force of People v. Buling would preclude us from reversing the resolution of Judge Alampay.

1. The Constitution, to repeat, is quite explicit: "No person shall be twice put in jeopardy of
punishment for the same offense. As Justice Laurel made clear in an address as delegate before the
Constitutional Convention, such a provision finds its origin" from the days when sanguinary
punishments were frequently resorted to by despots."  A defendant in a criminal case should
9

therefore, according to him, be adjudged either guilty or not guilty and thereafter left alone in peace,
in the latter case the State being precluded from taking an appeal.   It is in that sense that the right
10

against being twice put in jeopardy is considered as possessing many features in common with the
rule of finality in civil cases. For the accused is given assurance that the matter is closed, enabling
him to plan his, future accordingly, protecting him from continued distress, not to mention saving
both him and the state from the expenses incident to redundant litigation. There is likewise the
observation that this constitutional guarantee helps to equalize the adversary capabilities of two
grossly mismatched litigants, a poor and impecunious defendant hardly in a position to keep on
shouldering the costs of a suit.

Then, as a member of the Supreme Court, Justice Laurel had the first opportunity to give meaning to
what, under the Constitution, should be considered "the same offense." In the case of People v.
Tarok, decided in 1941,   the then comparatively new Rules of Court in its Section 9 of Rule 113
11

speaks of a bar to another prosecution for the offense charged after a defendant shall have been
convicted or acquitted or the case against him dismissed or otherwise terminated without his
express consent, "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." 
12

In the Tarok case, the conviction for parricide of the accused was sought to be set aside, as
previously he had been indicted for the crime of serious physical injuries, to which he had pleaded
guilty. He was sentenced and was actually incarcerated by virtue of such penalty imposed. The
offended party was his wife whom he hacked with bolo, his ire being aroused by certain, remarks
made her. While he was thus serving sentence, the victim died resulting in the new prosecution for
parricide of which he was convicted. On appeal to this Court, it was decided over the dissents of the
then Justice Moran and Justice Diaz that the offense of serious physical injury of which he was
found guilty being included in parricide his previous conviction was a bar to such subsequent
prosecution for the more serious crime. The lower court judgement of conviction was thus reversed.
According to Justice Laurel who spoke for the Court: "To our mind, the principle embodied in the

47
New Rules of Court is a clear expression of selection of rule amidst conflicting theories. We take the
position that when we amended section 26 of General Orders No. 58 by providing that the conviction
or acquittal of the defendant or the dismissal of the case shall be a bar to another prosecution for
any offense not only necessarily therein included but which necessarily includes the offense charged
in the former complaint or information, we meant what we have, in plain language, stated. We
certainly did not mean to engage in the simple, play of words." 13

2. Such a ruling was however re-examined and set aside in Melo v. People,   where it was held that
14

an accused who pleaded guilty to the offense of frustrated homicide, the offended party thereafter
dying in the evening of the same day, could not rely on a plea of double jeopardy if, as a result
thereof, the information was amended to charge him with homicide.   As was clarified in the opinion
15

of this Court through the then Chief Justice Moran, one of the dissenters in the Tarok case: "This
rule of identity does not apply, however, when the second offense was not in existence at the time of
the first prosecution, for the simple reason that in such case there is no possibility for the accused,
during the first prosecution, to be convicted for an offense that was then inexistent. Thus, where the
accused was charged with physical injuries and after conviction the injured person dies, the charge
for homicide against the same accused does not put him twice in jeopardy."   Stated differently, if
16

after the first prosecution "a new fact supervenes on which defendant may be held liable, resulting in
altering the character of the crime and giving rise to a new and distinct offense, "the accused cannot
be said to be in second jeopardy if indicted for the new offense."   It is noteworthy, however, that in
17

the Melo ruling, there was a reiteration of what was so emphatically asserted by Justice Laurel in the
Tarok case in these words: "As the Government cannot begin with the highest, and then down step
by step, bringing the man into jeopardy for every dereliction included therein, neither can it begin the
lowest and ascend to the highest with precisely the same result."  18

3. There is then the indispensable requirement of the existence of "a new fact [which] supervenes for
which the defendant is responsible" changing the character of the crime imputed to him and together
with the facts existing previously constituting a new and distinct offense. The conclusion reached
in People v. Buling,   the latest case in point relied upon by Judge Alampay in the resolution no
19

appeal, was thus, predictable. As set forth in the opinion of Justice Labrador in the case, there was a
medical certification that the wounds for which the accused Buenaventura as first prosecuted for less
serious physical injuries would require medical attendance from a period of from ten days to fifteen
days. He pleaded guilty and on December 8, 1956, sentenced by the Justice of the Peace of
Cabalian Leyte, to one month and one day of arresto mayor. He started serving his sentence on the
same day. On January 18, 1957, however, another physician examined the offended party and with
the use of an X-ray apparatus, certified that he did suffer a fracture requiring a treatment of from one
and one-half months to two and one half months, barring complications. As a result, on February 20,
1957, an information was filed against the same accused, this time before the Court of First Instance
of Leyte, charging him with serious physical injuries. He stood trial and was found guilty of such an
offense and sentenced to imprisonment of four months of arresto mayor as minimum to one year
of prision correccional as maximum. On appeal to this Court, his invocation of the defense of double
jeopardy struck a responsive chord, and he was acquitted.

4. The opinion of Justice Labrador explained with clarity why the constitutional right against being
put twice in jeopardy was a bar to the second prosecution. Thus: "If the X-ray examination discloses
the existence of a fracture on January 17, 1957, that fracture must have existed when the first
examination was made on December 10, 1956. There is therefore, no view or supervening fact that
could be said to have developed or arisen since the filing of the original action, which would justify
the application of the ruling enunciated by us in the cases if Melo vs. People and People vs.
Manolong ... . We attribute the new finding of fracture, which evidently lengthened the period of
healing of the wound, to the very superficial and inconclusive examination made on December 10,
1956. Had an X-ray examination been taken at the time, the fracture would have certainly been
disclosed. The wound causing the delay in healing was already in existence at the time of the first

48
examination, but said delay was, caused by the very superficial examination then made. As we have
stated, we find therefore that no supervening fact had occurred which justifies the application of the
rule in the case of Melo vs. People and People vs. Manolong for which reason we are constrained to
apply the general rule of double jeopardy."   It is quite apparent, in the light of the foregoing, why the
20

lower court, submitting to the compulsion of the Buling decision, had to sustain the motion to quash
and to dismiss the information against appellee Yorac. No error could therefore be rightfully imputed
to it.

WHEREFORE, the resolution of June 21, 1968 of Judge Nestor B. Alampay granting the motion to
quash, ordering the dismissal of the case and the immediate release of the appellee Rodrigo Yorac,
is affirmed. Without costs.

www.chanrobles.com

EN BANC

G.R. No. L-41311 August 28, 1934

THE PEOPLE OF THE PHILIPPINE ISLANDS, Plaintiff-Appellee, vs. LEON MALLARI Y LAGMAN and YU
Defendants-Appellant.

Emilio de la Paz for appellants.

Acting Solicitor-General Pe�a for appellee.

DIAZ, J.: chanrobles virtual law library

The herein defendants Leon Mallari y Lagman and Lao Yu appealed from the judgment sentencing them
respectively to the penalties of six years, ten months and one day of prision mayor and three years,
eight months and one day of prision correccional, with the corresponding accessory penalties and the
costs, on the ground that said judgment was not in accordance with the law. In their brief, they contend
that the trial court committed the four alleged errors enumerated therein.chanroblesvirtualawlibrary
chanrobles virtual law library

All the questions raised by said appellants in their assignment of errors alleged to have been committed
by the trial court are purely questions of fact. After carefully reviewing the evidence of record, this court

49
is fully convinced that the facts are as stated in the opinion of the trial court, to wit:chanrobles virtual
law library

The appellants herein invited Ellizar Dimson to accompany them to a certain Japanese hospital, the
appellant Lao Yu promising to give a tip of one peso to both Dimson and the appellant Mallari, whom he
pretended to have met, by chance at Dasmari �as Street in the City of Manila. Said appellants,
simulating not to know each other, engaged said Dimson in conversation and brought him to Intramuros
by way of Victoria Street. Upon arriving at the yard of the school building situated on said street, the
appellant Lao Yu requested appellant Mallari to change a 10-peso bill, which he carried, for the purpose
of giving them the tips he had promised. Under the pretext that he had no money with him, Mallari tried
to pass the bill to Dimson, asking him to change it, but Dimson answered that he did not have enough
money to make the change. In order to convince the appellants that he really did not have enough
money, Dimson took his wallet from his pocket to show them its contents, whereupon Mallari
immediately grabbed Dimson by both hands and wrested the wallet from him, emptying the contents
thereof, which amounted to P1.50, into his hand. After taking Dimson's money, Mallari ran away and in
order to prevent Dimson from making any noise or calling the attention of the neighborhood to the
incident, the appellant Lao Yu threatened to strike him if he made any outcry. Saying this, he ran away
and followed the appellant Mallari, who had already gone some distance. Then Ellizar Dimson, with the
help of a street-car inspector and policeman Bartolome Rulloda, who happened to be passing, pursued
the appellants. The latter, upon seeing that their attempt at escape was futile, stopped. Mallari went to
meet policeman Rulloda to ask him what happened while the appellant Lao Yu hid on the ground floor
of the house at number 96 San Juan de Letran Street. In answer to Mallari's question, policeman Rulloda
asked him why they robbed Dimson of his money. Mallari answered asking his pardon. When asked
where the money was, Mallari replied that Lao Yu, his co-appellant, had it. After Lao Yu's capture in the
said house, he was required to return the money to Dimson and he delivered to policeman Rulloda the
exact sum of P1.50 which had been taken from the former.chanroblesvirtualawlibrary chanrobles virtual
law library

The evidence shows that the appellant Leon Mallari is not a habitual delinquent but merely a recidivist,
having been convicted of the crime of robbery by the Court of First Instance of Manila in criminal case
No. 24027 of said court on May 15, 1922.chanroblesvirtualawlibrary chanrobles virtual law library

The Attorney-General contends that Lao Yu is likewise a recidivist but the evidence in support of his
contention merely consists in the appellant's testimony that in 1927 he had been sent to the Boys'
Training School for theft. This admission does not constitute sufficient evidence of recidivism on the
ground that his having been sent to the said training school necessarily implies that although he had
been accused of said offense no judgment of conviction had been rendered against him. And this is so,
because under Act No. 3203, which was approved on December 3, 1924, and in force in 1927, - the same

50
having been amended by Act No. 3559 only on November 26, 1929, and by article 80 of the Revised
Penal Code on January 1, 1932, - only minors under 18 years of age, who were accused of an offense not
punishable by reclusion perpetua or death, were sent to the institution specified therein or to the Boys'
Training School of the City of Manila. Said Act provided that in such cases, instead of rendering judgment
of conviction against them, the court should order the suspension of all further proceedings and commit
such minors to any of the aforesaid institutions. The pertinent provisions of said Act, as stated in
sections 3 and 7 thereof, read as follows:

SEC. 3. Whenever any boy or girl less than eighteen years of age shall be accused in any court of an
offense not punishable by life imprisonment or death, the court, before passing sentence of conviction,
shall suspend all further proceedings in the case and shall commit such minor to the custody of any of
the institutions mentioned in sections one and two of this act, until said minor shall have reached his
majority or for such less period as to the court may seem proper, subject to the conditions provided in
section seven hereof, or may allow him to remain and be cared for elsewhere, under probation and
subject to visitation and supervision of a probation officer, as hereinafter provided, whom the court may
require to report from time to time on the case:chanrobles virtual law library

SEC. 7. Any minor delinquent committed to an institution in accordance with sections three and five of
this Act or allowed to stay elsewhere, may be paroled by the head of the institution, under such
conditions as the latter may prescribe subject to the approval of the Public Welfare Commissioner, or
may be returned to the court for either sentence or dismissal. The probation period of the minor
allowed to stay at a place other than the institutions mentioned in sections one and two of this Act shall
rest with the probation officer and at its termination he shall return such minor to the court for either
sentence or dismissal.

Such is exactly the provision of the penultimate paragraph of article 80 of the Revised Penal Code, which
reads as follows:

In case the minor fails to behave properly or to comply with the regulations of the institution to which
he has been committed or with the conditions imposed upon him when he was committed to the care of
a responsible person, or in case he should be found incorrigible or his continued stay in such institution
should be inadvisable, he shall be returned to the court in order that the same may render the judgment
corresponding to the crime committed by him.

The evidence does not show whether or not the appellant Lao Yu was convicted under section 7
aforecited. It cannot be presumed that he was, for the reason that the circumstance of recidivism, like

51
any other circumstance or fact which may alter the degree of liability of an accused or affect him in one
way or another, should be proven as satisfactory as the crime itself with which he is charged. It is
obvious, therefore, that Lao Yu is not a recidivist.chanroblesvirtualawlibrary chanrobles virtual law
library

There is no question that the act of the appellants constitutes the crime of robbery as defined and
penalized in article 294, subsection (5) of the Revised Penal Code. The aggravating circumstances of
recidivism and craft should be taken into consideration in the case of the appellant Leon Mallari, and
that of craft alone in the case of the appellant La Yu. Therefore, the judgment appealed from is in
accordance with the law in so far as it affects the appellant Leon Mallari. With respect to the appellant
Lao Yu, however, it should be modified by imposing upon him the same penalty as that imposed upon
the former, on the ground that the aggravating circumstance of craft, which was taken into
consideration against him, is not compensated by any mitigating
circumstance.chanroblesvirtualawlibrary chanrobles virtual law library

Now then, in applying the provisions of Act No. 4103 to this particular case of the appellants, as required
by sections 1 and 2 thereof, what minimum of the aforesaid penalty should be imposed? should such
minimum necessarily be taken from the penalty of arresto mayor merely because, according to rule 4 of
article 61 of the Revised Penal Code, said penalty is the next lower to the minimum of the penalty
prescribed for the offense committed by said appellants, to wit: prision correccional to prision mayor in
its medium period, that is, from six months and one day to ten years?chanrobles virtual law library

In the judgment rendered by this court in the case of People vs. Ducosin, for frustrated murder (59 Phil.,
109), this question appears to have been decided in the affirmative. In fact, it was said therein that
inasmuch as the penalty imposed upon Ducosin was ten years and one day of prision mayor, which is
the minimum of the penalty prescribed for said crime, which penalty extends from ten years and one
day to seventeen years and four months, the penalty next lower in degree is prision correccional in its
maximum degree to prision mayor in its medium degree, that is, four years, two months and one day to
ten years; and that "it is in the discretion of the court to fix the time of imprisonment within the said
range without reference to the technical subdivisions of maxi- mum degree, medium degree and
minimum degree, and in this particular the courts are vested as stated with a wider discretion than they
ever had before." Under the said ruling, the minimum degree of said penalty imposed upon Ducosin was
fixed at seven years, which period is really within the range of said next lower
penalty.chanroblesvirtualawlibrary chanrobles virtual law library

It is to be noted, however, that in said case it has not been stated in unequivocal upon an accused
should necessarily and invariably be fixed within the range of the penalty next lower in degree as
determined in conformity with said rule 4 of article 61 of the Revised Penal Code. Such ruling could not
have been sustained then nor can it be sustained now on the ground that to do so would amount to

52
annulling or denying to the courts the discretion granted them by Act No. 4103, which discretion is
necessarily inferred from the text thereof which reads as follows:

. . . the court shall sentence the accused to such maximum as may, in view of attending circumstances,
be properly imposed under the present rules of the said Code, and to a minimum which shall not be less
than the minimum imprisonment period of the penalty next lower to that prescribed by said Code for
the offense. (Section 1.)

If the intention of the Legislature in enacting the law in question had been to restrict the courts in the
use of their discretion by not permitting them to fix the minimum of the penalty to be imposed except
within he range of the penalty next lower to that prescribed for the offense, it would have so expressly
stated or at least, it would have stated that said minimum should never exceed the maximum of said
next lower penalty just as it clearly said that "it shall not be less than the minimum imprisonment period
of the penalty next lower to that prescribed by said Code for the offense." Inasmuch as it has not so
stated, this Court cannot restrict the terms thereof, much less supply the deficiency, which is more or
less imaginary, on the ground that in the law under consideration there is not the least indication that
such was the intention of the Legislature. On the contrary, the fact that it has provided that the
minimum of a penalty should not be less than a certain limit specified therein is an indication that it
intended to place no other restriction than this on the exercise of such discretion by the
Courts.chanroblesvirtualawlibrary chanrobles virtual law library

This court is of the opinion that the rule established by said Act is that the courts may fix the minimum
of the penalty to be imposed upon an accused from the minimum of the penalty next lower to that
prescribed for the offense to a period which, without being the same maximum penalty which should be
imposed upon him would give the Board of Indeterminate Sentence, created by virtue of section 3 of Act
No. 4103, sufficient time to make use of the discretion granted it by section 5 of the same Act, so that it
may recommend at the proper time the release under parole of said accused if he deserves such
clemency. Such minimum penalty should not be so short as not to give said board or the officials
concerned sufficient time to study and observe the conduct of the accused and his progress or the
changes he has undergone during his imprisonment for the purpose of properly determining his fitness
to return to society without being a menace to the welfare thereof. Neither should it be to long, that the
penalty thus imposed upon him would fail to serve as a deterrent to the commission of another crime or
as a lesson for his guidance thereafter. In determining such minimum penalty, the age of the accused,
his general health and physical condition, the degree of his mentality and morality, and his previous
criminal record, if any, should necessarily be taken into consideration.chanroblesvirtualawlibrary
chanrobles virtual law library

In view of the foregoing, and taking into consideration the age of the appellants, the nature of their
offense, the criminal record of the appellant Mallari and the means employed by both in the commission
thereof, the judgment appealed from is hereby modified by sentencing the appellant Leon Mallari to

53
suffer the indeterminate penalty of from two years of prision correctional to six years, ten months and
one day of prision mayor, and the appellant Lao Yu to the indeterminate penalty of one year of prision
correccional to six years, ten months and one day of prision mayor, with the proportionate costs against
both. So ordered.

Street, Malcolm, Abad Santos, Hull, Vickers and Goddard, JJ., concur.

Separate Opinion

BUTTE, J., dissenting:chanrobles virtual law library

The foregoing decision changes the rule of law laid in the case of People vs. Ducosin (59 Phil., 109)
rendered in December 14, 1933. After an extended consideration of the legislative history and the
objects to be obtained by the Indeterminate Sentence Law, this court by unanimous vote declared that
the minimum imprisonment period to be determined under said Act should be placed anywhere within
the range of the penalty next lower to the maximum penalty assessed by the court in conformity with
the provisions of the Revised Penal Code. Under this interpretation a reasonable interval between the
minimum and the maximum penalties is always assured and the defendant cannot be deprived of the
benefits of the Indeterminate Sentence Law. The modification to the doctrine of the Ducosin case made
in this case by the majority of this court leaves it to the uncontrolled discretion of the trial judge to put
the minimum penalty in the same period and the same degree of the maximum penalty. It is true that
the majority have asserted in their opinion words of admonition to the trial courts to the effect that a
reasonable interval should always be fixed in the judgment and it is probable that in the great majority
of cases the result would be the same, namely, that the minimal penalty next lower that assessed by the
court as the maximum. However, the rule laid down in the Ducosin case which definitely assures every
defendant of such a reasonable interval seems to be more consonant with the spirit of the
Indeterminate Sentence Law and a more accurate expression of the intention of the Legislature as
disclosed by the legislative history of the act.

54
  

G.R. No. 114046 October 24, 1994

HONORATO GALVEZ and GODOFREDO DIEGO, petitioners,

vs.
COURT OF APPEALS (17TH DIVISION), First Asst. Provincial Prosecutor. DENNIS M. VILLA-
IGNACIO of Pasig, Rizal; THE PEOPLE OF THE PHILIPPINES; and PNP P/SR. SUPT. RICARDO
F. DE LEON, Camp Commander and Head of the PNP Custodial Group, Camp Crame, Cubao,
Quezon City, respondents.

Emerito M. Salva & Associates; Juanito L. Andrade; and Lazaro Law Firm for petitioners.

REGALADO, J.:

Submitted for resolution in the present special civil action are: (1) the basic petition
for certiorari and mandamus with a petition for habeas corpus, to review the resolution issued by
respondent Court of Appeals, dated
February 18, 1994, in CA-G.R. SP No. 33261;  (2) the Urgent Motion  and Supplemental Urgent
1 2

Motion  for Immediate Action on Petition for Habeas corpus; and (3) the Urgent Petition to Declare
3

Judge Jaime N. Salazar, Jr. and First Assistant Provincial Prosecutor Dennis M. Villa-Ignacio for
Contempt and to Annul Proceedings (with Immediate Prayer for another Cease and Desist Order). 4

On November 12, 1993, petitioners Honorato Galvez, the incumbent Mayor of San Ildefonso,
Bulacan, and one Godofredo Diego were charged in three separate informations with homicide and
two counts of frustrated homicide fot has been the rule that under the first paragraph of Section 14,
Rule 110, the amendment of the information may also be made even if it may result in altering the
nature of the charge so long as it Regional Trial Court of Malolos, Bulacan, Branch 14, and docketed
as Criminal Cases Nos. 3642-M-93 to 3644-M-93.  Both accused posted their respective cash bail
5

bonds and were subsequently released from detention.

55
On November 15, 1993, Bulacan Provincial Prosecutor Liberato L. Reyes filed a Motion to Defer
Arraignment and Subsequent Proceedings to enable him "to review the evidence on record and
determine once more the proper crimes chargeable against the accused,"  which was granted by
6

Judge Villajuan in an order dated November 16, 1993.  Thereafter, pursuant to Department Order
7

No. 369 of the Department of Justice, respondent Prosecutor Dennis M. Villa-Ignacio was
designated Acting Provincial Prosecutor of Bulacan and was instructed to conduct a re-investigation
of the aforesaid criminal cases filed against herein petitioners. 8

By virtue of a Manifestation with Ex-parte Motion dated November 23, 1993  filed by respondent

9

prosecutor, the proceedings were again ordered suspended by Judge Villajuan until after the
prosecution's request for change of venue shall have been resolved by the Supreme Court, and the
preliminary investigation being conducted by the former shall have been terminated.   It appears that
10

on December 2, 1993, private complainants, through their counsel, Atty. Silvestre R. Bello III, had
filed with the Supreme Court a Petition for Change of Venue of Criminal Cases Nos. 3642-M-93 to
3644-M-93, purportedly to safeguard the lives of the victims and their witnesses, and to prevent a
miscarriage of justice.  11

On December 15, 1993, before petitioners could be arraigned in Criminal Cases Nos. 3642-M-93 to
3644-M-93, respondent prosecutor filed an Ex
parte Motion to Withdraw Informations in said cases.   This motion was granted by Judge Villajuan
12

also on December 15, 1993 and the cases were considered withdrawn from the docket of the
court.   On the same day, Prosecutor Villa-Ignacio filed four new informations against herein
13

petitioners for murder, two counts of frustrated murder, and violation of Presidential Decree No. 1866
for illegal possession of firearms   which were subsequently raffled to the sala of Judge Victoria
14

Pornillos of Branch 10, Regional

Trial Court of Malolos, Bulacan and were docketed therein as Criminal Cases Nos. 4004-M-93 to
4007-M-93. No bail having been recommended for the crime of murder, Judge Pornillos ordered the
arrest of herein petitioners.   On December 23, 1993, said presiding judge issued an order setting
15

the arraignment of the accused for December 27, 1993.  16

On December 27, 1993, the scheduled arraignment before Judge Pornillos were reset due to the
absence of respondent prosecutor. On even date, petitioners filed before Judge Villajuan a Motion
for Reconsideration of his order of December 15, 1993 which granted the motion to withdraw the
original informations. 
17

Thereafter, a Motion to Quash the new informations for lack

of jurisdiction was filed by petitioners before Judge Pornillos on January 3, 1994.   At the court
18

session set for the arraignment of petitioners on January 24, 1994, Judge Pornillos issued an order
denying the motion to quash and, at the same time, directed that a plea of not guilty be entered for
petitioners when the latter refused to enter their plea. 
19

In the meantime, and prior to the arraignment of herein petitioners before Judge Pornillos, an order
was issued on January 20, 1994 by Judge Villajuan granting the motion for reconsideration filed by
petitioners, ordering the reinstatement of Criminal Cases Nos. 3642-M-93 to 3644-M-93, and setting
the arraignment of the accused therein for February 8, 1994.   On said date, however, the
20

arraignment was suspended and, in the meanwhile, petitioners filed a petition for certiorari,
prohibition and mandamus with respondent Court of Appeals, assailing the order dated January 24,
1994 issued by Judge Pornillos which denied petitioners' motion to quash filed in Criminal Cases
Nos. 4004-M-93 and 4007-M-93. As earlier stated, respondent court dismissed the petition in its
questioned resolution of February 18, 1994, hence this petition.

I. On the Main Petition

56
The main issue in this case involves a determination of the set
of informations under which herein petitioners should be tried, that is, (a) the first set of informations
for homicide and frustrated homicide in Criminal
Cases Nos. 3642-M-93 to 3644-M-93, or (b) the subsequent informations for murder, frustrated
murder, and illegal possession of firearms in Criminal Cases Nos. 4004-M-93 to 4007-M-93. Several
corollary but equally important issues have likewise been addressed to us for resolution, to wit:

1. Whether the ex parte motion to withdraw the original informations is null and void on the ground
that (a) there was no notice and hearing as required by Sections 4, 5 and 6, Rule 15 of the Rules of
Court; and (b) the appropriate remedy which should have been adopted by the prosecution was to
amend the informations by charging the proper offenses pursuant to Section 14 of Rule 110;

2. Whether the order granting the withdrawal of the original informations was immediately final and
executory;

3. Whether Judge Pornillos was correct in denying the motion to quash and thereby acquired
jurisdiction over the new informations considering that (a) the designated public prosecutor allegedly
had no authority to file the second set of informations; and (b) the filing thereof constituted forum
shopping; and

4. Whether the arraignment proceeding held on January 24, 1994 in Criminal Cases Nos. 4004-M-93
to 4007-M-93 was valid.

We shall discuss these issues seriatim.

1. It is petitioners' submission that the prosecution's failure to serve them a copy of the motion to
withdraw the original informations and to set said motion for hearing constitutes a violation of their
right to be informed of the proceedings against them, as well as a violation of Sections 4, 5 and 6,
Rule 15 of the Rules of Court. Hence, so they contend, the ex parte motion should be considered as
a worthless scrap of paper and Judge Villajuan had no authority to act on it. Ergo, the order granting
the same is null and void.

Petitioners advance the theory that respondent prosecutor should have amended the original
informations instead of withdrawing the same and filing new ones. They postulate that the principle
of nolle prosequi does not apply in this case since the withdrawal or dismissal of an information is
addressed solely to the sound and judicious discretion of the court which has the option to grant or
deny it and the prosecution cannot impose its opinion on the court. It is further stressed that in case
there is a need to change the nature of the offense charged, that is, from homicide to murder, by
adding the qualifying circumstance of treachery, the only legal and proper remedy is through the
filing of the corresponding amended information; and that the withdrawal of an information is allowed
only where the new information involves a different offense which does not include or is not included
in the offense originally charged.

Normally, an accused would not object to the dismissal of an information against him because it is to
his best interest not to oppose the same. Contrarily, if the accused should deem such conditional or
provisional dismissal to be unjust and prejudicial to him, he could object to such dismissal and insist
that the case be heard and decided on the merits.   However, considering that in the original cases
21

before Branch 14 of the trial court petitioners had not yet been placed in jeopardy, and the ex
parte motion to withdraw was filed and granted before they could be arraigned, there would be no
imperative need for notice and hearing thereof. In actuality, the real grievance of herein accused is
not the dismissal of the original three informations but the filing of four new informations, three of
which charge graver offenses and the fourth, an additional offense. Had these new informations not

57
been filed, there would obviously have been no cause for the instant petition. Accordingly, their
complaint about the supposed procedural lapses involved in the motion to dismiss filed and granted
in Criminal Cases Nos. 3642-M-93 to 3644-M-93 does not impress us as a candid presentation of
their real position.

Petitioners' contention that the dismissal of the original informations and the consequent filing of the
new ones substantially affected their right to bail is too strained and tenuous an argument. They
would want to ignore the fact that had the original informations been amended so as to charge the
capital offense of murder, they still stood to likewise be deprived of their right to bail once it was
shown that the evidence of guilt is strong. Petitioners could not be better off with amended
informations than with the subsequent ones. It really made no difference considering that where a
capital offense is charged and the evidence of guilt is strong, bail becomes a matter of discretion
under either an amended or a new information.

Contrary to petitioners' submission, the absence of notice and hearing does not divest a trial court of
authority to pass on the merits of the motion. It has been held that —

The order of the court granting the motion to dismiss despite absence of a notice of hearing, or proof
of service thereof, is merely an irregularity in the proceedings. It cannot deprive a competent court of
jurisdiction over the case. The court still retains its authority to pass on the merits of the motion. The
remedy of the aggrieved party in such cases is either to have the order set aside or the irregularity
otherwise cured by the court which dismissed the complaint, or to appeal from the dismissal and
not certiorari. 
22

Besides, when petitioners were given by Judge Villajuan the opportunity to file a motion for
reconsideration, even assuming the alleged procedural infirmity in his issuance of the order of
dismissal, the same was thereby deemed cured. This is especially so in this case since, on his
order, the original informations were reinstated in Branch 14 of the trial court.

The rule is now well settled that once a complaint or information is filed in court any disposition of the
case, whether as to its dismissal or the conviction or the acquittal of the accused, rests in the sound
discretion of the court. Although the prosecutor retains the direction and control of the prosecution of
criminal cases even when the case is already in court, he cannot impose
his opinion upon the tribunal. For while it is true that the prosecutor has the quasi-judicial discretion
to determine whether or not a criminal case should be filed in court, once the case had already been
brought therein any disposition the prosecutor may deem proper thereafter should be addressed to
the court for its consideration and approval.   The only qualification is that the action of the court
23

must not impair the substantial rights of the accused or the right of the People to due process of law.

We reiterate once again the doctrine we enunciated and explained in Crespo vs. Mogul, etc., et al.:  24

Whether the accused had been arraigned or not and whether it was due to a reinvestigation by the
fiscal or a review by the Secretary of Justice whereby a motion to dismiss was submitted to the
Court, the Court in the exercise of its discretion may grant the motion or deny it and require that the
trial on the merits proceed for the proper determination of the case.

xxx xxx xxx

The rule therefore in this jurisdiction is that once a complaint or information is filed in Court any
disposition of the case as to its dismissal or the conviction or acquittal of the accused rests in the
sound discretion of the Court. Although the fiscal retains the direction and control of the prosecution
of criminal cases even while the case is already in Court he cannot impose his opinion on the trial

58
court. The court is the best and sole judge on what to do with the case before it. The determination
of the case is within its exclusive jurisdiction and competence. A motion to dismiss the case filed by
the fiscal should be addressed to the Court who has the option to grant or deny the same. It does
not matter if this is done before or after the arraignment of the accused or that the motion was filed
after a reinvestigation or upon instructions of the Secretary of Justice who reviewed the records of
the investigation.

In such an instance, before a re-investigation of the case may be conducted by the public
prosecutor, the permission or consent of the court must be secured. And, if after such re-
investigation the prosecution finds a cogent basis to withdraw the information or otherwise cause the
dismissal of the case, such proposed course of action may be taken but shall likewise be addressed
to the sound discretion of the court. 25

It is not denied that in the present case, the court granted the motion of respondent prosecutor for
the suspension of the proceedings until the
re-investigation thereof shall have been terminated. Thereafter, the prosecutor arrived at a finding
that petitioners should have been charged with murder, frustrated murder, and illegal possession of
firearms. This prompted him to file an ex parte motion to withdraw the original informations for
homicide and frustrated homicide. Although the motion did not state the reasons for the withdrawal
of the informations, nevertheless, the court in the exercise of its discretion granted the same, as a
consequence of which a new set of informations was thereafter filed and raffled to another branch of
the court. Petitioners now question the propriety of the procedure adopted by the prosecution,
insisting that an amendment, not a new information, was required under the circumstances.

It must here be emphasized that respondent prosecutor sought, and was subsequently granted,
permission by the court to dismiss the original informations. It cannot therefore be validly claimed
that the prosecutor exceeded his authority in withdrawing those informations because the same bore
the imprimatur of the court. The issue is thus focused on whether or not under the given situation the
court acted correctly in dismissing the original informations rather than ordering the amendment
thereof.

It has been observed that while the Rules of Court gives the accused the right to move for the
quashal of the information, it is silent with respect to the right of the prosecutor to ask for a dismissal
or withdrawal thereof.   A perusal of the 1985 Rules on Criminal Procedure will show that there are
26

only two provisions concerning the dismissal of an information other than on motion of the accused,
namely, Section 14 of Rule 110 and Section 11 of Rule 119. But then, it may be contended that
these rules speak of a dismissal by the court when there is a mistake in charging the proper offense,
but make no mention of a dismissal made upon application of the prosecution. That is not
necessarily so.

It is true that Section 11, Rule 119 is virtually a restatement of Section 14, Rule 110, providing as it
does that:

Sec. 11. When mistake has been made in charging the proper offense. — When it becomes
manifest at any time before judgment, that a mistake has been made in charging the proper
offense, and the accused cannot be convicted of the offense charged, or of any other offense
necessarily included therein, the accused shall not be discharged, if there appears to be good cause
to detain him. In such case, the court shall commit the accused to answer for the proper offense and
dismiss the original case upon the filing of the proper information. (Emphasis supplied.)

Rule 119 is the rule specifically governing the trial stage where evidence is necessarily being
presented, hence the trial court is now in a better position to conclude that manifestly the accused

59
cannot be convicted of the offense charged or of one that it necessarily includes. It would primarily
be the function of the court to motu proprio order the dismissal of the case and direct the filing of the
appropriate information. We do not discount the possibility of either the prosecution or the defense
initiating such dismissal and substitution at that stage, although, from a realistic point of view, that
would be a rare situation. This provision, therefore, is more directly and principally directed to the
trial court to invest it with the requisite authority to direct by itself the dismissal and refiling of the
informations therein contemplated.

Rule 110, on the other hand, provides the procedural governance for the prosecution of offenses.
Section 14 thereof, quoted infra, provides in its second paragraph the procedure and requisites for
the substitution of a defective information by the correct one. Although, just like Section 11 of Rule
119 the permissible stage for effecting that substitution is "at any time before judgment," unlike the
latter situation it is sufficient that "it appears . . . that a mistake has been made in charging the proper
offense, . . . ." The situation under said Section 14 contemplates a longer time span, inclusive of the
period from the filing of the information up to and before trial. Since no evidence has been presented
at that stage, the error would appear or be discoverable from a review of the records of the
preliminary investigation. Of course, that fact may be perceived by the trial judge himself but, again,
realistically it will be the prosecutor who can initially determine the same. That is why such error
need not be manifest or evident, nor is it required that such nuances as offenses includible in the
offense charged be taken into account. It necessarily follows, therefore, that the prosecutor can and
should institute remedial measures for the dismissal of the original information and the refiling of the
correct one, otherwise he would be recreant to his duties.

It is interesting to note that in the American jurisdiction, such right is specifically recognized under
Rule 48 (a) of the Federal Rules of Criminal Procedure which provides that the entry of a nolle
prosequi by the Government is a permissible right, although requiring in all cases the approval of the
court in the exercise of its judicial discretion.   As a matter of fact, the prosecuting attorney is given
27

the broad power, sole authority and discretion to enter a nolle prosequi provided he does not act
arbitrarily   and subject to the discretion of the court.
28

In several cases, we have also impliedly recognized the propriety of such a procedure particularly in
those instances where the prosecution is allowed to dismiss or withdraw an information on the
ground of insufficiency of evidence. We have even gone further by imposing upon the fiscal, as he
was then called, the duty to move for the dismissal of the information if he is convinced that the
evidence is insufficient to establish, at least prima facie, the guilt of the accused. 
29

In this case now before us, what is involved is a dismissal effected at the instance of the prosecutor
by reason of a mistake in charging the proper offense, in order that new informations can be filed.
The problem that may be posited, and should now be resolved, is when the fiscal may be allowed to
move to dismiss an information and when he should merely move to amend it.

Section 14 of Rule 110, which is invoked by petitioners, reads as follows:

Sec. 14. Amendment. — The information or complaint may be amended, in substance or form,

without leave of court, at any time before the accused pleads; and thereafter and during the trial as
to all matters of form, by leave and at the discretion of the court, when the same can be done without
prejudice to the rights of the accused.

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 Rule 119, Section 11, provided the accused would

60
not be placed thereby in double jeopardy, and may also require the witnesses to give bail for their
appearance at the trial.

The first paragraph provides the rule for amendment of the information or complaint, while the
second paragraph refers to the substitution of the information or complaint. Under the second
paragraph, the court can order the filing of another information to charge the proper offense,
provided the accused would not be placed thereby in double jeopardy and that could only be true if
the offense proved does not necessarily include or is not necessarily included in the offense charged
in the original information.

It has been the rule that under the first paragraph of Section 14, Rule 110, the amendment of the
information may also be made even if it may result in altering the nature of the charge so long as it
can be done without prejudice to the rights of the accused. Hence, in the case of Dimalibot vs.
Salcedo,   the accused therein were originally charged with homicide and were released on bail.
30

However, the then provincial fiscal, after a review of the affidavits of the witnesses for the
prosecution, discovered that the killing complained of was perpetrated with the qualifying
circumstances of treachery, taking advantage of superior strength, and employing means to weaken
the defense of the victim. Consequently, an amended information for murder was filed against the
accused who were ordered re-arrested without the amount of bail being fixed, the new charge being
a capital offense.

The Court ruled therein that the amendment was proper, pursuant to Section 13, Rule 106 of the
1940 Rules of Court (now Section 14, Rule 110 of the 1985 Rules on Criminal Procedure), thus:

Here these rules properly apply, since it is undisputed that the herein accused were not yet
arraigned before the competent court when the complaint for homicide was amended so as to
charge the crime of murder. Upon the authority of said rules, the amendment could therefore be
made even as to substance in order that the proper charge may be made. The claim that such
amendment can only refer to matters of specification affecting the elements constituting the crime is
not correct, for there is nothing in the rule to show that the nature of the amendment should only be
limited to matters of specification. The change may also be made even if it may result in altering the
nature of the charge so long as it can be done without prejudice to the rights of the defendant.

Be that as it may, it is quite plausible under Section 14 of Rule 110 that, instead of an amendment,
an information for homicide may also be dismissed before the accused pleads, to give way to the
filing of a new information for murder. This may be deduced from the pronouncement of the Court in
the aforecited case of Dimalibot, to wit:

This clearly appears from the second part of Section 13 of Rule 106 which says that, if it appears
before judgment that a mistake has been made in charging the proper offense, the court may
dismiss the original information and order the filing of a new one provided the defendant may not be
placed in double jeopardy. If a new information may be ordered at any time before judgment no
reason is seen why the court may not order the amendment of the information if its purpose is to
make it conformable to the true nature of the crime committed. . . .

In the subsequent case of Teehankee, Jr. vs. Madayag, et al.,   however, Section 14 of Rule 110
31

was clarified to mean as follows:

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:

61
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.

In any event, we are inclined to uphold the propriety of the withdrawal of the original informations,
there having been no grave abuse of discretion on the part of the court in granting the motion and,
more importantly, in consideration of the fact that the motion to withdraw was filed and granted
before herein petitioners were arraigned, hence before they were placed in jeopardy. Thus, even if a
substitution was made at such stage, petitioners cannot validly claim double jeopardy, which is
precisely the evil sought to be prevented under the rule on substitution, for the simple reason that no
first jeopardy had as yet attached. Consequently, we hold that although the offenses charged under
the three new informations necessarily include those charged under the original informations, the
substitution of informations was not a fatal error. A contrary ruling, to paraphrase from our former
pronouncements, would sacrifice substantial justice for formal nuances on the altar of procedural
technicalities. Furthermore, petitioner's right to speedy trial was never violated since the new
informations were filed immediately after the motion to withdraw the original informations was
granted.

2. The controversy over the jurisdiction of Judge Pornillos to entertain and act upon the new
informations for murder, frustrated murder and illegal possession of firearms, is grounded on three
points of disagreement.

Firstly, it is argued that the new informations were prematurely filed considering that the order
granting the withdrawal of the original informations had not yet become final and executory and that,
as a matter of fact, the same was subsequently reconsidered and the case reinstated by Judge
Villajuan. Therefore, so petitioners postulate, Judge Pornillos could not acquire jurisdiction over the
same offense involving the same incident and the same accused.

Secondly, petitioners contend that the dismissal of the original informations and the filing of new
ones which were raffled to another branch of the court constituted forum shopping, and was tainted
with malice considering the indecent haste with which the motion to withdraw the informations was

62
filed, the order granting the same was issued, and the new informations were filed, all of which took
place on the same day. Pursuant to the doctrinal ruling that the court first acquiring jurisdiction
excludes the other courts, it is theorized that the cognizance of the case taken by Judge Villajuan
barred Judge Pornillos from assuming jurisdiction thereover.

Finally, the designation of respondent Prosecutor Dennis Villa-Ignacio (who was then First Assistant
Provincial Prosecutor of Pasig, Rizal) as Acting Provincial Prosecutor of Bulacan was arbitrary and
without any justifiable reason. It follows, therefore, so petitioners vigorously argue, that in the
absence of such authority, the informations should be considered null and void by reason of which
Judge Pornillos did not acquire jurisdiction over the same.

On the other hand, respondents question the propriety of petitioners' filing of a petition
for certiorari prohibition and mandamus in the Court of Appeals against the order of the lower court
denying petitioners' motion to quash, claiming that the proper remedy was to proceed to trial on the
merits and thereafter raise on appeal, as special defenses, the grounds invoked in the motion to
quash.

It is a general rule that a nolle prosequi or dismissal entered before the accused is placed on trial
and before he is called on to plead is not equivalent
to an acquittal,   and does not bar a subsequent prosecution for the same offense.   It is not a final
32 33

disposition of the case.   Rather, it partakes of the nature of a nonsuit or discontinuance in a civil suit
34

and leaves the matter in the same condition in which it was before the commencement of the
prosecution.  35

A dismissal is different from an acquittal. An order of dismissal which is actually an acquittal is

immediately final and cannot be reconsidered.   Furthermore, an acquittal is always based on the
36

merits, that is, the defendant is acquitted because the evidence does not show that defendant's guilt
is beyond reasonable doubt; but a dismissal does not decide the case on the merits or that the
defendant is not guilty. Dismissals terminate the proceedings, either because the court is not a court
of competent jurisdiction, or the evidence does not show that the offense was committed within the
territorial jurisdiction of the court, or the complaint or information is not valid or sufficient in form and
substance.   For dismissal to be a bar under double jeopardy, it must have the effect of acquittal.
37

All these go to show, therefore, that the dismissal of Criminal Cases

Nos. 3642-M-93 to 3644-M-93 did not amount to an acquittal of herein petitioners. Consequently, the
same did not immediately become final, hence petitioners could still file a motion for the
reconsideration thereof. Moreover, such dismissal does not constitute a proper basis for a claim of
double jeopardy.   Since jeopardy had not yet attached, herein petitioners were not prejudiced by the
38

filing of the new informations even though the order of dismissal in the prior case had not yet
become final. Neither did it affect the jurisdiction of the court in the subsequent case.

In American legal practice, where a motion for an order of nolle prosequi is made, the only power to
deny the motion would be based on failure of the district attorney to judiciously exercise his
discretion.   In most cases, the motion will be readily granted and should not be refused unless the
39

court has some knowledge that it is based on an improper reason or a corrupt motive. But such a
motion to dismiss will not also be approved unless the court is satisfied that the administration of
justice requires that the prosecution be ended, or if there appears to be a clear violation of the
law.   Whatever may be the reason therefor, a denial of the motion to withdraw should not be
40

construed as a denigration of the authority of the special prosecutor to control and direct the
prosecution of the case,   since the disposition of the case already rests in the sound discretion of
41

the court.

63
This brings us to the question as to whether or not an order of dismissal may be subsequently set
aside and the information reinstated. Again, in American jurisprudence, the authorities differ
somewhat as to whether a nolle prosequi may be set aside and the cause reinstated.   Some cases 42

hold that the nolle prosequi may be recalled and that the accused may be tried on the same
information,  but before it can be retraced, set aside, cancelled, or struck off, the permission or
43

assent of the court must be had and obtained, and such cancellation or retraction must be duly
entered. According to other authorities, however, the entry of an unconditional nolle prosequi, not on
the ground that the information is insufficient on its face, is an end to the prosecution of that
information, and such nolle prosequi cannot afterward be vacated and further proceedings had in
that case.44

Still in some cases, it has been held that a nolle prosequi may be set aside by leave of court, so as
to reinstate proceedings on the information, or unless it was entered by mistake.   In our jurisdiction,
45

we follow the rule which allows an order of dismissal to be set aside by leave of court. In one case, it
was held that in the absence of any statutory provision to the contrary, the court may, in the interest
of justice, dismiss a criminal case provisionally, that is, without prejudice to reinstating it before the
order becomes final or to the subsequent filing of a new information for the offense.  46

The rule that in cases of concurrent jurisdiction the court first acquiring jurisdiction will retain it to the
end to the exclusion of other tribunals, is not to be given unyielding effect in all cases and it does not
apply where the jurisdiction of the first court has come to an end in any legal way, such as by nolle
prosequi.   The rule on exclusions is intended to prevent confusion and conflicts in jurisdiction and to
47

prevent a person from being twice tried for the same offense, but no accused has a vested right to
be tried in any particular court of concurrent jurisdiction; and when one court of concurrent
jurisdiction voluntarily relinquishes it by a nolle prosequi or dismissal of the case, there can be no
legal or logical reason for preventing the other court from proceeding.   With much more reason will
48

this rule apply where only branches of the same court, and not different courts, are involved in the
jurisdictional conflict.

There was no forum shopping in the lower court with respect to the case involved. While the
procedure adopted by the prosecution was somewhat cumbersome, it was not in bad faith and,
accordingly, it did not affect the legality of the proceedings. There is no showing, and petitioners
failed to prove otherwise, that the assignment by raffle of the new informations to another branch of
the same court was intended to prejudice herein petitioners, or to place them under less favorable
circumstances, or to find a court which would act favorably on the prosecution's case.

The authority of the special prosecutor appointed by the Secretary of Justice to sign and file
informations has long been recognized in this jurisdiction and it has been held that such information
cannot be quashed on that account. There is nothing so sacrosanct in the signing of complaints,
holding of investigations, and conducting prosecutions that only an officer appointed by the
President or one expressly empowered by law be permitted to assume these functions.   And any 49

irregularity in the appointment does not necessarily invalidate the same if he may be considered
a de facto officer.  50

Of course, where the person who signed the information was disqualified from appointment to such
position, the information is invalid and the court does not acquire jurisdiction to try the accused
thereon.   Such is not, however, the situation obtaining in the case at bar. It will be noted that
51

respondent prosecutor was designated by the Secretary of Justice to handle the re-investigation
and prosecution of the case against petitioners pursuant to Department Order No. 369. Petitioners
failed to show any irregularity in the issuance of said directive.

64
At any rate, the power of supervision and control vested in the Secretary of Justice under
Presidential Decree No. 1275 had been broadened beyond the confines of the old law, that is,
Section 1679 of the Revised Administrative Code, wherein the power of the Secretary was then
limited only to certain instances. Pertinently, in Aguinaldo, et al. vs. Domagas, et al.,   we said:
52

The Court notes, however; that Department of Justice Order No. 85 was issued pursuant to, among
others, P.D. No. 1275 issued on 11 April 1978 which provides:

Sec. 1. Creation of the National Prosecution Service; Supervision and Control of the Secretary of
Justice. — There is hereby created and established a National Prosecution Service under the
supervision and control of the Secretary of Justice, to be composed of the Prosecution Staff in the
Office of the Secretary of Justice and such number of Regional State Prosecution Offices, and
Provincial and City Fiscal's Offices as are hereinafter provided, which shall be primarily responsible
for the investigation and prosecution of all cases involving violations of penal laws.

The power of supervision and control vested in the Secretary of Justice includes the authority to act
directly on any matter within the jurisdiction of the Prosecution Staff, the Regional State Prosecution
Office or the Office of the Provincial or City Fiscal and to review, modify or revoke any decision or
action of the Chief of said staff or office.

The power of supervision and control vested in the Secretary of Justice under P.D. No. 1275 had
thus been broadened beyond the confines of the old law, i.e., Section 1679 of the Revised
Administrative Code of 1917, where the power of the Secretary of Justice to designate acting fiscals
or prosecutors to handle a particular case was limited to instances "when a provincial fiscal shall be
disqualified by personal interest to act in a particular case or when for any reason he shall be
unable, or shall fail to discharge any of the duties of his position." Indeed, the limitation upon which
petitioners rely no longer subsisted under P.D. No. 1275.

Having been duly designated in accordance with law, the panel of prosecutors had complete control
of the investigation and prosecution of the case. . . .

3. Petitioners similarly dispute the legality of their arraignment on January 24, 1994, when Judge
Pornillos entered a plea of not guilty for them after they refused to plead, without furnishing them
copies of the information with the list of witnesses, after merely reading the informations against
them and asking whether they understood the same, which were allegedly in palpable violation of
Section 1, Rule 116. Petitioners aver that they were requesting for the suspension of the
arraignment as they wanted to have a final copy of the order of January 24, 1994 which was merely
read in open court, and to take the necessary steps to question the same by way of a motion for
reconsideration or an appeal.

In criminal cases, it is the duty of the accused, in addition to the other pleas authorized by law, to
plead whether he is guilty or not of the crime charged. In that way and in that way only can an issue
be created upon which the trial shall proceed.   Section 1 (c) of Rule 116 is quite explicit that where
53

the accused refuses to plead, a plea of not guilty shall be entered for him. Hence, under such
mandatory language, if the accused refuses to plead, the court must enter a plea of not guilty. The
words are so plain and unambiguous that no construction is necessary. It actually calls for a literal
application thereof. Any explanation or defense which petitioners would want to invoke can be
properly raised during the trial, but they cannot refuse to enter their plea. Nonetheless, the alleged
defect in their arraignment on January 24, 1994 is deemed to have been cured when they were
again arraigned on February 18, 1994 with the assistance of counsel de oficio, and the information
was read to them in the vernacular.

65
In conclusion, considering that Branch 10 of the same trial court handling Criminal Cases Nos. 4004-
M-93 to 4007-M-93 legally acquired jurisdiction over the new informations which we have likewise
declared valid, petitioners may be prosecuted thereunder.

II. On the Petition for Habeas corpus

This petition is predicated mainly on petitioners' asseveration that the court which issued the warrant
for their arrest had no jurisdiction over the case, hence their detention should be deemed illegal.

We have earlier declared that Branch 10 of the trial court acquired jurisdiction over the new set of
informations. Consequently, the warrant of arrest issued on the bases of said informations filed
therein and the subsequent detention of herein petitioners pursuant thereto are valid. What instead
has to be resolved is the corollary issue of whether the petition for habeas corpus was properly filed
together with their present petition for certiorari and mandamus.

The writs of habeas corpus and certiorari may be ancillary to each other where necessary to give
effect to the supervisory powers of the higher courts. A writ of habeas corpus reaches the body and
the jurisdictional matters, but not the record. A writ of certiorari reaches the record but not the body.
Hence, a writ of habeas corpus may be used with the writ of certiorari for the purpose of
review.   However, habeas corpus does not lie where the petitioner has the remedy of appeal
54

or certiorari because it will not be permitted to perform the functions of a writ of error or appeal for
the purpose of reviewing mere errors or irregularities in the proceedings of a court having jurisdiction
over the person and the subject matter.  55

Neither can we grant the writ at this stage since a writ of habeas corpus is not intended as a
substitute for the functions of the trial court. In the absence of exceptional circumstances, the orderly
course of trial should be pursued and the usual remedies exhausted before the writ may be
invoked. Habeas corpus is not ordinarily available in advance of trial to determine jurisdictional
questions that may arise.   It has to be an exceptional case for the writ of habeas corpus to be
56

available to an accused before trial.   In the absence of special circumstances requiring immediate
57

action, a court will not grant the writ and discharge the prisoner in advance of a determination of his
case in court.   In the case under consideration, petitioners have dismally failed to adduce any
58

justification or exceptional circumstance which would warrant the grant of the writ, hence their
petition therefor has to be denied.

In addition, a petition for habeas corpus is not the appropriate vehicle for asserting a right to bail or
vindicating its denial. In the case of Enrile vs. Salazar, etc., et al.,   we held that:
59

The criminal case before the respondent Judge was the normal venue for invoking the petitioner's
right to have provisional liberty pending trial and judgment. The original jurisdiction to grant or deny
bail rested with said respondent. The correct course was for petitioner to invoke that jurisdiction by
filing a petition to be admitted to bail, claiming a right to bail per se by reason of the weakness of the
evidence against him. Only after that remedy was denied by the trial court should the review
jurisdiction of this Court have been invoked, and even then, not without first applying to the Court of
Appeals if appropriate relief was also available there.

III. On the Motion to Cite for Contempt

The records show that on February 24, 1994, this Court issued a temporary restraining order,
pursuant to its resolution in Administrative Matter No. 94-1-13-RTC which is a petition for change of
venue filed by the Vinculados, requiring Judges Felipe N. Villajuan and Victoria Villalon-Pornillos to

66
cease and desist from hearing the criminal cases involving herein petitioners which were pending
before them. 60

Subsequently, another resolution was issued in said cases, dated

March 1, 1994, with the following directive:

ACCORDINGLY, without prejudice to the final determination as to which of the two (2) sets of
information will be upheld or prevail, the Executive Judge of the Regional Trial Court of Malolos,
Bulacan is hereby directed to transfer all the aforementioned criminal cases filed against Mayor
Honorato Galvez, et al. now in the Regional Trial Court of Malolos, Bulacan, to the Executive Judge,
Regional Trial Court of Quezon City for raffle as one (1) single case among its branches and for the
branch concerned, after raffle, to proceed with all deliberate dispatch after the issues raised in CA-
G.R. SP No. 33261 have been resolved with finality.  61

As a consequence, the seven informations which were docketed as Criminal Cases Nos. Q-94-
55481 to Q-94-55487 were assigned to and are now pending trial on the merits before Branch 103 of
the Regional Trial Court of Quezon City, presided over by Judge Jaime N. Salazar, Jr. Petitioners
now assert that Judge Salazar and Prosecutor Villa-Ignacio proceeded with the trial of the cases
despite the aforestated directives in the above cited resolutions. We find no merit in the motion to
cite them for contempt.

The records reveal that there was a manifestation dated May 31, 1994   filed by the Solicitor General
62

wherein the latter manifested his conformity to the agreement made between the prosecution and
the defense before Judge Salazar, the pertinent part of which agreement is as follows:

1. During the hearing on May 26, 1994, the prosecution, through Senior State Prosecutor Dennis
Villa-Ignacio, the defense through Justice Alfredo Lazaro, and this Honorable Court agreed that the
trial in these cases shall proceed on condition that: (a) the defense shall not be deemed to have
waived any issue or objection it has raised before the Supreme Court in G.R. No. 114046; and (b)
that the trial shall also be without prejudice to whatever decision and resolution the Supreme Court
may render in the case before it.

Counsel for petitioners, retired Justice Alfredo Lazaro, takes issue with said agreement on the
pretension that the same is not the true agreement of the parties, but he failed to state what they
actually agreed upon. Withal, the resolutions of this Court in the petition for change of venue, as well
as the cease and desist order issued therein, are clearly directed against the two aforenamed
regional trial judges in Malolos, Bulacan. By no stretch of the imagination can we interpret the same
to include Judge Jaime N. Salazar, Jr. of Quezon City.

For that matter, the issues involved in this petition for certiorari do not necessarily require a
suspension of the proceedings before the present trial court considering that the main petition hinges
only on a determination of which set of informations shall constitute the indictments against
petitioners and for which charges they shall stand trial. Whichever set of informations prevails, the
evidence of the prosecution and defense will more or less be the same and can be utilized for the
charges therein. Hence, no cogent reason exists for the suspension of the proceedings before the
court below.

As a final word, while it may well be that both sets of information validly exist for the nonce, to allow
both of them to subsist will only serve to confuse and complicate the proceedings in the cases
therein. Brushing aside procedural technicalities, therefore, it becomes exigent to now consider and
declare the four informations for murder, frustrated murder and illegal possession of firearms as
having amended and superseded the original three informations for homicide and frustrated

67
homicide, there being no substantial rights of herein petitioners which may be affected thereby.
Correspondingly, the three informations for homicide and frustrated homicide should be ordered
withdrawn from the Quezon City trial court's docket.

WHEREFORE, judgment is hereby rendered DISMISSING the petition

for certiorari and mandamus together with the petition for habeas corpus; DENYING, for lack of
merit, the motion to cite respondent judge and prosecutor for contempt and to annul proceedings;
and ORDERING the withdrawal and invalidation of the three informations for homicide and frustrated
homicide against petitioners from the docket of Branch 103 of the Regional Trial Court of Quezon
City.

SO ORDERED.

68