EN BANC

G.R. No. Nos. 111771-77 November 9, 1993

ANTONIO L. SANCHEZ, Petitioner, vs. The Honorable HARRIET

O. DEMETRIOU (in her capacity as Presiding Judge of
Regional Trial Court, NCR, Branch 70, Pasig), The Honorable
FRANKLIN DRILON (in his capacity as Secretary of Justice),
JOVENCITO R. ZUÑO, LEONARDO C. GUIYAB, CARLOS L. DE
LEON, RAMONCITO C. MISON, REYNALDO J. LUGTU, and
RODRIGO P. LORENZO, the last six respondents in their
official capacities as members of the State Prosecutor's
Office), Respondents.

Mario E. Ongkiko and Marciano P. Brion, Jr. for petitioner. chanrobles virtual law library

The Solicitor General for respondents.

CRUZ, J.:

There is probably no more notorious person in the country today

than Mayor Antonio L. Sanchez of Calauan, Laguna, who stands
accused of an unspeakable crime. On him, the verdict has already
been rendered by many outraged persons who would immediately
impose on him an angry sentence. Yet, for all the prejudgments
against him, he is under our Constitution presumed innocent as long
as the contrary has not been proved. Like any other person accused
of an offense, he is entitled to the full and vigilant protection of the
Bill of Rights.
chanroblesvirtualawlibrary chanrobles virtual law library

Sanchez has brought this petition to challenge the order of the

respondent judge denying his motion to quash the informations for
rape with homicide filed against him and six other persons. We shall
treat it as we would any other suit filed by any litigant hoping to
obtain a just and impartial judgment from this Court. chanroblesvirtualawlibrary chanrobles virtual law library
The pertinent facts are as follows: chanrobles virtual law library

On July 28, 1993, the Presidential Anti-Crime Commission requested

the filing of appropriate charges against several persons, including
the petitioner, in connection with the rape-slay of Mary Eileen
Sarmenta and the killing of Allan Gomez. chanroblesvirtualawlibrary chanrobles virtual law library

Acting on this request, the Panel of State Prosecutors of the

Department of Justice conducted a preliminary investigation on
August 9, 1993. Petitioner Sanchez was not present but was
represented by his counsel, Atty. Marciano Brion, Jr. chanroblesvirtualawlibrary chanrobles virtual law library

On August 12, 1993, PNP Commander Rex Piad issued an

"invitation" to the petitioner requesting him to appear for
investigation at Camp Vicente Lim in Canlubang, Laguna. It was
served on Sanchez in the morning of August 13,1993, and he was
immediately taken to the said camp. chanroblesvirtualawlibrary chanrobles virtual law library

At a confrontation that same day, Sanchez was positively identified

by Aurelio Centeno, and SPO III Vivencio Malabanan, who both
executed confessions implicating him as a principal in the rape-slay
of Sarmenta and the killing of Gomez. The petitioner was then
placed on "arrest status" and taken to the Department of Justice in
Manila.chanroblesvirtualawlibrary chanrobles virtual law library

The respondent prosecutors immediately conducted an inquest upon

his arrival, with Atty. Salvador Panelo as his counsel. chanroblesvirtualawlibrary chanrobles virtual law library

After the hearing, a warrant of arrest was served on Sanchez. This

warrant was issued on August 13, 1993, by Judge Enrico A.
Lanzanas of the Regional Trial Court of Manila, Branch 7, in
connection with Criminal Cases Nos. 93-124634 to 93-124637 for
violation of Section 8, in relation to Section 1, of R.A. No. 6713.
Sanchez was forthwith taken to the CIS Detention Center, Camp
Crame, where he remains confined. chanroblesvirtualawlibrary chanrobles virtual law library

On August 16, 1993, the respondent prosecutors filed with the

Regional Trial Court of Calamba, Laguna, seven informations
charging Antonio L. Sanchez, Luis Corcolon, Rogelio Corcolon,
Pepito Kawit, Baldwin Brion, Jr., George Medialdea and Zoilo Ama
with the rape and killing of Mary Eileen Sarmenta. chanroblesvirtualawlibrary chanrobles virtual law library

On August 26, 1993, Judge Eustaquio P. Sto. Domingo of that court

issued a warrant for the arrest of all the accused, including the
petitioner, in connection with the said crime. chanroblesvirtualawlibrary chanrobles virtual law library

The respondent Secretary of Justice subsequently expressed his

apprehension that the trial of the said cases might result in a
miscarriage of justice because of the tense and partisan atmosphere
in Laguna in favor of the petitioner and the relationship of an
employee, in the trial court with one of the accused. This Court
thereupon ordered the transfer of the venue of the seven cases to
Pasig, Metro Manila, where they were raffled to respondent Judge
Harriet Demetriou. chanroblesvirtualawlibrary chanrobles virtual law library

On September 10, 1993, the seven informations were amended to

include the killing of Allan Gomez as an aggravating
circumstance. chanroblesvirtualawlibrary chanrobles virtual law library

On that same date, the petitioner filed a motion to quash the

informations substantially on the grounds now raised in this
petition. On September 13, 1993, after oral arguments, the
respondent judge denied the motion. Sanchez then filed with this
Court the instant petition for certiorari and prohibition with prayer
for a temporary restraining order/writ of injunction. chanroblesvirtualawlibrary chanrobles virtual law library

The petitioner argues that the seven informations filed against him
should be quashed because: 1) he was denied the right to present
evidence at the preliminary investigation; 2) only the Ombudsman
had the competence to conduct the investigation; 3) his warrantless
arrest is illegal and the court has therefore not acquired jurisdiction
over him, 4) he is being charged with seven homicides arising from
the death of only two persons; 5) the informations are
discriminatory because they do not include Teofilo Alqueza and
Edgardo Lavadia; and 6) as a public officer, he can be tried for the
offense only by the Sandiganbayan. chanroblesvirtualawlibrary chanrobles virtual law library

The respondents submitted a Comment on the petition, to which we

required a Reply from the petitioner within a non-extendible period
of five days. 1The Reply was filed five days late. 2The Court may
consider his non-compliance an implied admission of the
respondents' arguments or a loss of interest in prosecuting his
petition, which is a ground for its dismissal. Nevertheless, we shall
disregard this procedural lapse and proceed to discuss his petition
on the basis of the arguments before us.

The Preliminary Investigation.

The records of the hearings held on August 9 and 13, 1993, belie
the petitioner's contention that he was not accorded the right to
present counter-affidavits. chanroblesvirtualawlibrary chanrobles virtual law library

During the preliminary investigation on August 9, 1993, the

petitioner's counsel, Atty. Marciano Brion, manifested that his client
was waiving the presentation of a counter-affidavit, thus:

Atty. Brion, Jr.: 

chanrobles virtual law library

[W]e manifest that after reviewing them there is nothing to rebut or

countermand all these statements as far as Mayor Sanchez is
concerned, We are not going to submit any counter-affidavit. chanroblesvirtualawlibrary chanrobles virtual law library

ACSP Zuño to Atty. Brion:

xxx xxx xxx

Q. So far, there are no other statements. chanroblesvirtualawlibrary chanrobles virtual law library

A. If there is none then, we will not submit any counter-affidavit

because we believe there is nothing to rebut or countermand with
all these statements. chanroblesvirtualawlibrary chanrobles virtual law library

Q. So, you are waiving your submission of counter-affidavit? chanrobles virtual law library

A. Yes, your honor, unless there are other witnesses who will come
up soon. 3

Nonetheless, the head of the Panel of Prosecutors, respondent

Jovencito Zuño, told Atty. Brion that he could still file a counter-
affidavit up to August 27, 1993. No such counter-affidavit was
filed. chanroblesvirtualawlibrary chanrobles virtual law library

During the hearing on August 1'3, 1993, respondent Zuño furnished

the petitioner's counsel, this time Atty. Salvador Panelo, with copies
of the sworn statements of Centeno and Malabanan, and told him
he could submit counter-affidavits on or before August 27, 1993.
The following exchange ensued:

ACSP Zuño: chanrobles virtual law library

For the record, we are furnishing to you the sworn statement of

witness Aurelio Centeno y Roxas and the sworn statement of SPO3
Vivencio Malabanan y Angeles. chanroblesvirtualawlibrary chanrobles virtual law library

Do I understand from you that you are again waiving the

submission of counter-affidavit? chanrobles virtual law library

Atty. Panelo: chanrobles virtual law library

Yes. chanroblesvirtualawlibrary chanrobles virtual law library

ACSP Zuño: chanrobles virtual law library

So, insofar as the respondent, Mayor Antonio Sanchez is concerned,

this case is submitted for resolution. 4

On the other hand, there is no support for the petitioner's

subsequent manifestation that his counsel, Atty. Brion, was not
notified of the inquest held on August 13, 1993, and that he was not
furnished with the affidavits sworn to on that date by Vivencio
Malabanan and Aurelio Centeno, or with their supplemental
affidavits dated August 15, 1993. Moreover, the above-quoted
excerpt shows that the petitioner's counsel at the hearing held on
August 13, 1993, was not Atty. Brion but Atty. Panelo. chanroblesvirtualawlibrary chanrobles virtual law library

The petitioner was present at that hearing and he never disowned

Atty. Panelo as his counsel. During the entire proceedings, he
remained quiet and let this counsel speak and argue on his behalf.
It was only in his tardy Reply that he has suddenly bestirred himself
and would now question his representation by this lawyer as
unauthorized and inofficious. chanroblesvirtualawlibrary chanrobles virtual law library

Section 3, Paragraph (d), Rule 112 of the Rules of Court, provides

that if the respondent cannot be subpoenaed or, if subpoenaed,
does not submit counter-affidavits, the investigating officer shall
base his resolution on the evidence presented by the
complainant. chanroblesvirtualawlibrary chanrobles virtual law library

Just as the accused may renounce the right to be present at the

preliminary investigation 5, so may he waive the right to present
counter-affidavits or any other evidence in his defense.   chanroblesvirtualawlibrary chanrobles virtual law library

At any rate, it is settled that the absence of a preliminary

investigation does not impair the validity of the information or
otherwise render the same defective and neither does it affect the
jurisdiction of the court over the case or constitute a ground for
quashing the information. 6 chanrobles virtual law library

If no preliminary investigation has been held, or if it is flawed, the

trial court may, on motion of the accused, order an investigation or
reinvestigation and hold the proceedings in the criminal case in
abeyance. 7In the case at bar, however, the respondent judge saw
no reason or need for such a step. Finding no arbitrariness in her
factual conclusions, we shall defer to her judgment.

Jurisdiction of the Ombudsman

Invoking the case of Deloso v. Domingo, 8the petitioner submits

that the proceedings conducted by the Department of Justice are
null and void because it had no jurisdiction over the case. His claim
is that it is the Office of the Ombudsman that is vested with the
power to conduct the investigation of all cases involving public
officers like him, as the municipal mayor of Calauan, Laguna. chanroblesvirtualawlibrary chanrobles virtual law library

The Ombudsman is indeed empowered under Section 15, paragraph

(1) of R.A. 6770 to investigate and prosecute, any illegal act or
omission of any public official. However, as we held only two years
ago in the case of Aguinaldo v. Domagas, 9this authority "is not an
exclusive authority but rather a shared or concurrent authority in.
respect of the offense charged."

Petitioners finally assert that the information and amended

information filed in this case needed the approval of the
Ombudsman. It is not disputed that the information and amended
information here did not have the approval of the Ombudsman.
However, we do not believe that such approval was necessary at all.
In Deloso v. Domingo, 191 SCRA. 545 (1990), the Court held that
the Ombudsman has authority to investigate charges of illegal or
omissions on the part of any public official, i.e., any crime imputed
to a public official. It must, however, be pointed out that the
authority of the Ombudsman to investigate "any [illegal] act or
omission of any public official" (191 SCRA at 550)
is not an exclusive authority but rather a shared or concurrent
authority in respect of the offense here charged, i.e., the crime of
sedition. Thus, the non-involvement of the office of the Ombudsman
in the present case does not have any adverse legal consequence
upon the authority the panel of prosecutors to file and prosecute the
information or amended information.

In fact, other investigatory agencies, of the government such as the

Department of Justice, in connection with the charge of
sedition, 10and the Presidential Commission on Good Government, in
ill-gotten wealth cases, 11may conduct the investigation,

The Arrest

Was petitioner Sanchez arrested on August 13, 1993? chanrobles virtual law library

"Arrest" is defined under Section 1, Rule 113 of the Rules of Court

as the taking of a person into custody in order that he may be
bound to answer for the commission of an offense. Under Section 2
of the same Rule, an arrest is effected by an actual restraint of the
person to be arrested or by his voluntary submission to the custody
of the person making the arrest. chanroblesvirtualawlibrary chanrobles virtual law library

Application of actual force, manual touching of the body, physical

restraint or a formal declaration of arrest is not, required. It is
enough that there be an intent on the part of one of the parties to
arrest the other and an intent onthe part of the other to submit,
under the belief and impression that submission is necessary. 12 chanrobles virtual law library

The petitioner was taken to Camp Vicente Lim, Canlubang, Laguna,

by virtue of a letter-invitation issued by PNP Commander Rex Piad
requesting him to appear at the said camp for investigation. chanroblesvirtualawlibrary chanrobles virtual law library

In Babst v. National Intelligence Board 13this Court declared:

Be that as it may, it is not idle to note that ordinarily, an invitation

to attend a hearing and answer some questions, which the person
invited may heed or refuse at his pleasure, is not illegal or
constitutionally objectionable. Under certain circumstances,
however, such an invitation can easily assume a different
appearance. Thus, where the invitation comes from a powerful
group composed predominantly of ranking military officers issued at
a time when the country has just emerged from martial rule and
when the suspension of the privilege of the writ of habeas
corpus has not entirely been lifted, and the designated interrogation
site is a military camp, the same can be easily taken, not as a
strictly voluntary invitation which it purports to be, but  as an
authoritative command which one can only defy at his peril. . . .
(Emphasis supplied)

In the case at bar, the invitation came from a high-ranking military

official and the investigation of Sanchez was to be made at a
military camp. Although in the guise of a request, it was obviously a
command or an order of arrest that the petitioner could hardly he
expected to defy. In fact, apparently cowed by the "invitation," he
went without protest (and in informal clothes and slippers only) with
the officers who had come to fetch him. chanroblesvirtualawlibrary chanrobles virtual law library

It may not be amiss to observe that under R.A. No. 7438, the
requisites of a "custodial investigation" are applicable even to a
person not formally arrested but merely "invited" for questioning.
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It should likewise be noted that at Camp Vicente Lim, the petitioner

was placed on "arrest status" after he was pointed to by Centeno
and Malabanan as the person who first raped Mary Eileen Sarmenta.
Respondent Zuño himself acknowledged during the August 13, 1993
hearing that, on the basis of the sworn statements of the two state
witnesses, petitioner had been "arrested." chanrobles virtual law library

We agree with the petitioner that his arrest did not come under
Section 5, Rule 113 of the Rules of Court, providing as follows:

Sec. 5. Arrest without warrant; when lawful. - A peace officer or a

private person may, without a warrant, arrest a person: chanrobles virtual law library

(a) When, in his presence, the person to be arrested has

committed, is actually committing, or is attempting to commit an
offense;chanrobles virtual law library

(b) When an offense has in fact just been committed and he has
personal knowledge of facts indicating that the person to be
arrested has committed it; and chanrobles virtual law library

(c) When the person to be arrested is a prisoner who has escapes

from a penal establishment or place where he is serving final
judgment or temporarily confined while his case is pending, or has
escaped while being transferred from one confinement to another.

It is not denied that the arresting officers were not present when
the petitioner allegedly participated in the killing of Allan Gomez and
the rape-slay of Mary Eileen Sarmenta. Neither did they have any
personal knowledge that the petitioner was responsible therefor
because the basis of the arrest was the sworn statements of
Centeno and Malabanan. Moreover, as the rape and killing of
Sarmenta allegedly took place on June 28-June 29, 1993, or forty-
six days before the date of the arrest, it cannot be said that the
offense had "in fact just been committed" when the petitioner was
arrested. chanroblesvirtualawlibrary chanrobles virtual law library

The original warrantless arrest of the petitioner was doubtless

illegal. Nevertheless, the Regional Trial Court lawfully acquired
jurisdiction over the person of the petitioner by virtue of the warrant
of arrest it issued on August 26, 1993 against him and the other
accused in connection with the rape-slay cases. It was belated, to
be sure, but it was nonetheless legal. chanroblesvirtualawlibrary chanrobles virtual law library
Even on the assumption that no warrant was issued at all, we find
that the trial court still lawfully acquired jurisdiction over the person
of the petitioner. The rule is that if the accused objects to the
jurisdiction of the court over his person, he may move to quash the
information, but only on that ground. If, as in this case, the accused
raises other grounds in the motion to quash, he is deemed to have
waived that objection and to have submitted his person to the
jurisdiction of that court. 14
chanrobles virtual law library

The Court notes that on August 13, 1993, after the petitioner was
unlawfully arrested, Judge Lanzanas issued a warrant of arrest
against Antonio L. Sanchez in connection with Criminal Cases Nos.
93-124634 to 93-124637 for violation of R.A No. 6713. 15Pending
the issuance of the warrant of arrest for the rape-slay cases, this
first warrant served as the initial justification for his detention.
chanroblesvirtualawlibrary chanrobles virtual law library

The Court also adverts to its uniform ruling that the filing of
charges, and the issuance of the corresponding warrant of arrest,
against a person invalidly detained will cure the defect of that
detention or at least deny him the right to be released because of
such defect. * Applicable by analogy to the case at bar is Rule 102
Section 4 of the Rules of Court that:

Sec, 4. When writ is not allowed or discharge authorized. - If it

appears that the person alleged to be restrained of his liberty is in
the custody of an officer under process issued by a court or judge or
by virtue of a judgment or order of a court of record, and that the
court or judge had jurisdiction to issue the process, render the
judgment, or make the order, the writ shall not be allowed; or if the
jurisdiction appears after the writ is allowed, the person shall not be
discharged by reason of any informality or defect in the process,
judgment, or order. Nor shall, anything in this rule be held to
authorize the discharge of a person charged with or convicted of an
offense in the Philippines or of a person suffering imprisonment
under lawful judgment.

In one case, 16the petitioner, sued on habeas corpus on the ground

that she had been arrested by virtue of a John Doe warrant. In their
return, the respondents declared that a new warrant specifically
naming her had been issued, thus validating her detention. While
frowning at the tactics of the respondents, the Court said:

The, case has, indeed, become moot and academic inasmuch as the
new warrant of arrest complies with the requirements of the
Constitution and the Rules of Court regarding the particular
description of the person to be arrested. While the first warrant was
unquestionably void, being a general warrant, release of the
petitioner for that reason will be a futile act as it will be followed by
her immediate re-arrest pursuant to the new and valid warrant,
returning her to the same prison she will just have left. This Court
will not participate in such a meaningless charade.

The same doctrine has been consistently followed by the

Court, 17more recently in the Umil case. 18

The Informations

The petitioner submits that the seven informations charging seven

separate homicides are absurd because the two victims in these
cases could not have died seven times. chanroblesvirtualawlibrary chanrobles virtual law library

This argument was correctly refuted by the Solicitor General in this

wise:

Thus, where there are two or more offenders who commit rape, the
homicide committed on the occasion or by reason of each rape,
must be deemed as a constituent of the special complex crime of
rape with homicide. Therefore, there will be as many crimes of rape
with homicide as there are rapes committed. chanroblesvirtualawlibrary chanrobles virtual law library

In effect, the presence of homicide qualifies the crime of rape,

thereby raising its penalty to the highest degree. Thus, homicide
committed on the occasion or by reason of rape, loses its character
as an independent offense, but assumes a new character, and
functions like a qualifying circumstance. However,by fiction of law, it
merged with rape to constitute an constituent element of a special
complex crime of rape with homicide with a specific penalty which is
in the highest degree, i.e. death (reduced to reclusion perpetua with
the suspension of the application of the death penalty by the
Constitution).

It is clearly provided in Rule 110 of the Rules of Court that:

Sec. 13. Duplicity of offense. A complaint or information must

charge but one offense, except only in those cases in which existing
laws prescribe a simple punishment for various offenses.

Rape with homicide comes within the exception under R.A. 2632
and R.A. 4111, amending the Revised Penal Code. chanroblesvirtualawlibrary chanrobles virtual law library

The petitioner and his six co-accused are not charged with only one
rape committed by him in conspiracy with the other six. Each one of
the seven accused is charged with having himself raped Sarmenta
instead of simply helping Sanchez in committing only one rape. In
other words, the allegation of the prosecution is that the girl was
raped seven times, with each of the seven accused taking turns in
abusing her with the assistance of the other six. Afterwards, their
lust satisfied, all seven of them decided to kill and thus silence
Sarmenta. chanroblesvirtualawlibrary chanrobles virtual law library

Every one of the seven accused is being charged separately for

actually raping Sarmenta and later killing her instead of merely
assisting the petitioner in raping and then slaying her. The separate
informations filed against each of them allege that each of the
seven successive rapes is complexed by the subsequent slaying of
Sarmenta and aggravated by the killing of Allan Gomez by her
seven attackers. The separate rapes were committed in succession
by the seven accused, culminating in the slaying of Sarmenta. chanroblesvirtualawlibrary chanrobles virtual law library

It is of course absurd to suggest that Mary Eileen Sarmenta and

Allan Gomez were killed seven times, but the informations do not
make such a suggestion. It is the petitioner who does so and is thus
hoist by his own petard.

The Alleged Discrimination

The charge of discrimination against the petitioner because of the
non-inclusion of Teofilo Alqueza and Edgardo Lavadia in the
informations must also be dismissed.   chanroblesvirtualawlibrary chanrobles virtual law library

While the prosecuting officer is required by law to charge all those

who in his opinion, appear to be guilty, he nevertheless cannot be
compelled to include in the information a person against whom he
believes no sufficient evidence of guilt exists. 19The appreciation of
the evidence involves the use of discretion on the part of the
prosecutor, and we do not find in the case at bar a clear showing by
the petitioner of a grave abuse of such discretion. 20 chanrobles virtual law library

The decision of the prosecutor may be reversed or modified by the

Secretary of Justice or in special cases by the President of the
Philippines. 21But even this Court cannot order the prosecution of a
person against whom the prosecutor does not find sufficient
evidence to support at least a  prima facie case. The courts try and
absolve or convict the accused but as a rule have no part in the
initial decision to prosecute him.chanroblesvirtualawlibrary chanrobles virtual law library

The possible exception is where there is an unmistakable showing of

a grave abuse of discretion that will justify judicial intrusion into the
precincts of the executive. But in such a case the proper remedy to
call for such exception is a petition for mandamus,  not  certiorari or
prohibition. 22 Moreover, before resorting to this relief, the party
seeking the inclusion of another person as a co-accused in the same
case must first avail itself of other adequate remedies such as the
filing of a motion for such inclusion. 23 chanrobles virtual law library

At any rate, it is a preposterous contention that because no charges

have been filed against Alqueza and Lavadia, the charges against
the petitioner and his co-accused should also be dropped.

Jurisdiction of the Sandiganbayan

The petitioner argued earlier that since most of the accused were
incumbent public officials or employees at the time of the alleged
commission of the crimes, the cases against them should come
under the jurisdiction of the Sandiganbayan and not of the regular
courts. This contention was withdrawn in his Reply but we shall
discuss it just the same for the guidance of all those concerned. chanroblesvirtualawlibrary chanrobles virtual law library

Section 4, paragraph (a) of P.D. No, 1606, as amended by P.D.

No.1861, provides:

Sec. 4. Jurisdiction. - The Sandiganbayan shall exercise: chanrobles virtual law library

a) Exclusive original jurisdiction in all cases involving:

(1) Violations of Republic Act No. 3019, as amended, otherwise

known as the Anti-Graft and Corrupt Practices Act, Republic Act No.
1379, and Chapter II, Section 2, Title VII of the Revised Penal
Code: chanrobles virtual law library

(2) Other offenses or felonies committed by public officers and

employees in relation to their office, including those employed in
government-owned or controlled corporations, whether simple or
complexed with other crimes, where the penalty prescribed by law
is higher than  prision correccional or imprisonment for six (6) years,
or a fine of P6,000.00. . . . (Emphasis supplied)

The crime of rape with homicide with which the petitioner stands
charged obviously does not fall under paragraph (1), which deals
with graft and corruption cases. Neither is it covered by paragraph
(2) because it is not an offense committed in relation to the office of
the petitioner. chanroblesvirtualawlibrary chanrobles virtual law library

In Montilla v, Hilario, 24 this Court described the "offense committed

in relation to the office" as follows:

[T]he relation between the crime and the office contemplated by the
Constitution is, in our opinion, direct and not accidental. To fall into
the intent of the Constitution, the relation has to be such that, in
the legal sense, the offense cannot exist without the office. In other
words, the office must be a constituent element of the crime as
defined in the statute, such as, for instance, the crimes defined and
punished in Chapter Two to Six, Title Seven, of the Revised Penal
Code. chanroblesvirtualawlibrary chanrobles virtual law library
Public office is not of the essence of murder. The taking of human
life is either murder or homicide whether done by a private citizen
or public servant, and the penalty is the same except when the
perpetrator. being a public functionary took advantage of his office,
as alleged in this case, in which event the penalty is increased. chanroblesvirtualawlibrary chanrobles virtual law library

But the use or abuse of office does not adhere to the crime as an
element; and even as an aggravating circumstance, its materiality
arises not from the allegations but on the proof, not from the fact
that the criminals are public officials but from the manner of the
commission of the crime

There is no direct relation between the commission of the crime of

rape with homicide and the petitioner's office as municipal mayor
because public office is not an essential element of the crime
charged. The offense can stand independently of the office.
Moreover, it is not even alleged in the information that the
commission of the crime charged was intimately connected with the
performance of the petitioner's official functions to make it fall
under the exception laid down in People v. Montejo. 25 chanrobles virtual law library

In that case, a city mayor and several detectives were charged with
murder for the death of a suspect as a result of a "third degree"
investigation held at a police substation. The appearance of a
senator as their counsel was questioned by the prosecution on the
ground that he was inhibited by the Constitution from representing
them because they were accused of an offense committed in
relation to their office. The Court agreed. It held that even if their
position was not an essential ingredient of the offense, there was
nevertheless an intimate connection between the office and the
offense, as alleged in the information, that brought it within the
definition of an offense "committed in relation to the public office."
library
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As Chief Justice Concepcion said:

It is apparent from these allegations that, although public office is

not an element of the crime of murder in abstract, as committed by
the main respondents herein, according to the amended
information, the offense therein charged is intimately
connected with their respective offices and was perpetrated while
they were in the performance, though improper or irregular, of their
official functions. Indeed they had no personal motive to commit the
crime and they would not have committed it had they not held their
aforesaid offices. The co-defendants of respondent Leroy S. Brown,
obeyed his instructions because he was their superior officer, as
Mayor of Basilan City. (Emphasis supplied).

We have read the informations in the case at bar and find no

allegation therein that the crime of rape with homicide imputed to
the petitioner was connected with the discharge of his functions as
municipal mayor or that there is an "intimate connection" between
the offense and his office. It follows that the said crime, being an
ordinary offense, is triable by the regular courts and not the
Sandiganbayan.

Conclusion

As above demonstrated, all of the grounds invoked by the petitioner

are not supported by the facts and the applicable law and
jurisprudence. They must, therefore, all be rejected. In
consequence, the respondent judge, who has started the trial of the
criminal cases against the petitioner and his co-accused, may
proceed therewith without further hindrance. chanroblesvirtualawlibrary chanrobles virtual law library

It remains to stress that the decision we make today is not a

decision on the merits of the criminal cases being tried below. These
will have to be decided by the respondent judge in accordance with
the evidence that is still being received. At this time, there is yet no
basis for judgment, only uninformed conjecture. The Court will
caution against such irrelevant public speculations as they can be
based only on imperfect knowledge if not officious ignorance. chanroblesvirtualawlibrary chanrobles virtual law library

WHEREFORE, the petition is DISMISSED. The respondent judge is

DIRECTED to continue with the trial of Criminal Cases Nos. 101141,
101142, 101143, 101144, 101145, 101146 and 101147 and to
decide them with deliberate dispatch. chanroblesvirtualawlibrary chanrobles virtual law library

SO ORDERED.