TOPIC: Rule 110 A.
Institution of Criminal Actions secure a license to operate as a recruitment agency from the Philippine
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 178607 December 5, 2012
DANTE LA. JIMENEZ, in his capacity as President and representative of
UNLAD SHIPPING & MANAGEMENT CORPORATION, Petitioner,
vs.
HON. EDWIN SORONGON (in his capacity as Presiding Judge of Branch 214
of the Regional Trial Court of Mandaluyong City), SOCRATES
ANTZOULATOS, CARMEN ALAMIL, MARCELl GAZA and MARKOS
AVGOUSTIS, Respondents.
DECISION
BRION, J.:
We resolve the petition for review on certiorari[ 1] filed by Dante La.
Jimenez (petitioner) to challenge the twin resolutions of the Court of Appeals
( CA) dated November 23, 20062 and June 28, 20073 in CA-G.R. SP No. 96584,
which dismissed the petitioner's petition for certiorari and denied his motion
for reconsideration, respectively.
The Factual Antecedents
The petitioner is the president of Unlad Shipping & Management Corporation, a
local manning agency, while Socrates Antzoulatos, Carmen Alamil, Marceli Gaza,
and Markos Avgoustis (respondents) are some of the listed incorporators of
Tsakos Maritime Services, Inc. (TMSI), another local manning agency.
On August 19, 2003, the petitioner filed a complaint-affidavit4 with the Office of
the City Prosecutor of Mandaluyong City against the respondents for syndicated
and large scale illegal recruitment.5 The petitioner alleged that the respondents
falsely represented their stockholdings in TMSIs articles of incorporation 6 to
Overseas Employment Agency (POEA).
On October 9, 2003, respondents Antzoulatos and Gaza filed their joint counter-
affidavit denying the complaint-affidavits allegations.7 Respondents Avgoustis
and Alamil did not submit any counter-affidavit.
In a May 4, 2004 resolution,8 the 3rd Assistant City Prosecutor recommended
the filing of an information for syndicated and large scale illegal recruitment
against the respondents. The City Prosecutor approved his recommendation
and filed the corresponding criminal information with the Regional Trial Court
(RTC) of Mandaluyong City (docketed as Criminal Case No. MC04-8514 and
raffled to Branch 212) presided by Judge Rizalina T. Capco-Umali.
Subsequently, in a December 14, 2004 resolution, the City Prosecutor
reconsidered the May 4, 2004 resolution and filed a motion with the RTC to
withdraw the information.9 The petitioner and respondents Antzoulatos and
Gaza filed their opposition10 and comment to the opposition, respectively.
In an August 1, 2005 resolution,11 the RTC denied the motion to withdraw
information as it found the existence of probable cause to hold the respondents
for trial.12 Thus, the RTC ordered the issuance of warrants of arrest against the
respondents.
On August 26, 2005, respondents Antzoulatos and Gaza filed an omnibus motion
for reconsideration and for deferred enforcement of the warrants of arrest.13 In
a September 2, 2005 order,14 the RTC denied the omnibus motion, reiterating
that the trial court is the sole judge on whether a criminal case should be
dismissed or not.
On September 26, 2005, respondent Alamil filed a motion for judicial
determination of probable cause with a request to defer enforcement of the
warrants of arrest.15
On September 29, 2005, the petitioner filed his opposition with motion to
expunge, contending that respondent Alamil, being a fugitive from justice, had
no standing to seek any relief and that the RTC, in the August 1, 2005 resolution,
already found probable cause to hold the respondents for trial.16
In a September 30, 2005 order,17 the RTC denied respondent Alamils motion for
being moot and academic; it ruled that it had already found probable cause
against the respondents in the August 1, 2005 resolution, which it affirmed in
the September 2, 2005 order.
On October 10, 2005, respondent Alamil moved for reconsideration and for the
inhibition of Judge Capco-Umali, for being biased or partial.18 On October 25,
2005, the petitioner filed an opposition with a motion to expunge, reiterating
that respondent Alamil had no standing to seek relief from the RTC.19
In a January 4, 2006 order,20 Judge Capco-Umali voluntarily inhibited herself
from the case and did not resolve respondent Alamils motion for
reconsideration and the petitioners motion to expunge. The case was later re-
raffled to Branch 214, presided by Judge Edwin D. Sorongon.
The RTC Rulings
In its March 8, 2006 order,21 the RTC granted respondent Alamils motion for
reconsideration. It treated respondent Alamils motion for judicial
determination as a motion to dismiss for lack of probable cause. It found: (1) no
evidence on record to indicate that the respondents gave any false information
to secure a license to operate as a recruitment agency from the POEA; and (2)
that respondent Alamil voluntarily submitted to the RTCs jurisdiction through
the filing of pleadings seeking affirmative relief. Thus, the RTC dismissed the
case, and set aside the earlier issued warrants of arrest.
On April 3, 2006, the petitioner moved for reconsideration, stressing the
existence of probable cause to prosecute the respondents and that respondent
Alamil had no standing to seek any relief from the RTC.22
On April 26, 2006, respondent Alamil moved to expunge the motion for being a
prohibited pleading since the motion did not have the public prosecutors
conformity.23
In its May 10, 2006 order,24 the RTC denied the petitioners motion for
reconsideration, finding that the petitioner merely reiterated arguments in
issues that had been finally decided. The RTC ordered the motion expunged
from the records since the motion did not have the public prosecutors
conformity.
On May 19, 2006, the petitioner filed a notice of appeal.25
On May 30, 2006, respondent Alamil moved to expunge the petitioners notice
of appeal since the public prosecutor did not authorize the appeal and the
petitioner had no civil interest in the case.26
On June 27, 2006, the petitioner filed his comment to the motion to expunge,
claiming that, as the offended party, he has the right to appeal the RTC order
dismissing the case; the respondents fraudulent acts in forming TMSI greatly
prejudiced him.27
In its August 7, 2006 joint order,28 the RTC denied the petitioners notice of
appeal since the petitioner filed it without the conformity of the Solicitor
General, who is mandated to represent the People of the Philippines in criminal
actions appealed to the CA. Thus, the RTC ordered the notice of appeal
expunged from the records.
On October 18, 2006, the petitioner elevated his case to the CA via a Rule 65
petition for certiorari assailing the RTCs March 8, 2006, May 10, 2006, and
August 7, 2006 orders.
The CA Ruling
In its November 23, 2006 resolution,29 the CA dismissed outright the
petitioners Rule 65 petition for lack of legal personality to file the petition on
behalf of the People of the Philippines. It noted that only the Office of the
Solicitor General (OSG) has the legal personality to represent the People, under
Section 35(1), Chapter 12, Title III, Book IV of the 1987 Administrative Code. It
also held that the petitioner was not the real party in interest to institute the
case, him not being a victim of the crime charged to the respondents, but a mere
competitor in their recruitment business. The CA denied30 the motion for
reconsideration31 that followed.
The Petition
The petitioner argues that he has a legal standing to assail the dismissal of the
criminal case since he is the private complainant and a real party in interest
who had been directly damaged and prejudiced by the respondents illegal acts;
respondent Alamil has no legal standing to seek any relief from the RTC since
she is a fugitive from justice.
The Case for the Respondents
The respondents32 submit that the petitioner lacks a legal standing to assail the
dismissal of the criminal case since the power to prosecute lies solely with the
State, acting through a public prosecutor; the petitioner acted independently
and without the authority of a public prosecutor in the prosecution and appeal
of the case.
The Issue
The case presents to us the issue of whether the CA committed a reversible
error in dismissing outright the petitioners Rule 65 petition for certiorari for
lack of legal personality to file the petition on behalf of the People of the
Philippines.
Our Ruling
The petition lacks merit.
The petitioner has no legal personality to assail the dismissal of the
criminal case
It is well-settled that "every action must be prosecuted or defended in the name
of the real party in interest[,]" "who stands to be benefited or injured by the
judgment in the suit, or by the party entitled to the avails of the suit." 33Interest
means material interest or an interest in issue to be affected by the decree or
judgment of the case, as distinguished from mere interest in the question
involved.34 By real interest is meant a present substantial interest, as
distinguished from a mere expectancy, or a future, contingent, subordinate or
consequential interest.35 When the plaintiff or the defendant is not a real party
in interest, the suit is dismissible.36
Procedural law basically mandates that "[a]ll criminal actions commenced by
complaint or by information shall be prosecuted under the direction and control
of a public prosecutor."37 In appeals of criminal cases before the CA and before
this Court, the OSG is the appellate counsel of the People, pursuant to Section
35(1), Chapter 12, Title III, Book IV of the 1987 Administrative Code. This
section explicitly provides:
SEC. 35. Powers and Functions. The Office of the Solicitor General shall
represent the Government of the Philippines, its agencies and instrumentalities
and its officials and agents in any litigation, proceeding, investigation or matter
requiring the services of lawyers. . . . It shall have the following specific powers
and functions:
(1) Represent the Government in the Supreme Court and the Court of
Appeals in all criminal proceedings; represent the Government and its
officers in the Supreme Court and Court of Appeals, and all other courts or
tribunals in all civil actions and special proceedings in which the Government or
any officer thereof in his official capacity is a party. (emphasis added)
The People is the real party in interest in a criminal case and only the OSG can
represent the People in criminal proceedings pending in the CA or in this Court.
This ruling has been repeatedly stressed in several cases 38 and continues to be
the controlling doctrine.
While there may be rare occasions when the offended party may be allowed to
pursue the criminal action on his own behalf39 (as when there is a denial of due
process), this exceptional circumstance does not apply in the present case.
In this case, the petitioner has no legal personality to assail the dismissal of the
criminal case since the main issue raised by the petitioner involved the criminal
aspect of the case, i.e., the existence of probable cause. The petitioner did not
appeal to protect his alleged pecuniary interest as an offended party of the
crime, but to cause the reinstatement of the criminal action against the
respondents. This involves the right to prosecute which pertains exclusively to
the People, as represented by the OSG.40
Respondent Alamil voluntarily submitted to the RTCs jurisdiction
As a rule, one who seeks an affirmative relief is deemed to have submitted to the
jurisdiction of the court. Filing pleadings seeking affirmative relief constitutes
voluntary appearance, and the consequent jurisdiction of one's person to the
jurisdiction of the court.41
Thus, by filing several motions before the RTC seeking the dismissal of the
criminal case, respondent Alamil voluntarily submitted to the jurisdiction of the
RTC. Custody of the law is not required for the adjudication of reliefs other than
an application for bail.42
WHEREFORE, we hereby DENY the appeal. The twin resolutions of the Court of
Appeals dated November 23, 2006 and June 28, 2007 in CAG. R. SP No. 96584
are AFFIRMED. Costs against the petitioner.
SO ORDERED.
TOPIC: Rule 110 B. Sufficiency of Complaint or Information
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 129296 September 25, 2000
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ABE VALDEZ y DELA CRUZ, accused-appellant.
DECISION
QUISUMBING, J.:
For automatic review is the decision1 promulgated on February 18, 1997, by the
Regional Trial Court of Bayombong, Nueva Vizcaya, Branch 27, in Criminal Case
No. 3105. It found appellant Abe Valdez y Dela Cruz guilty beyond reasonable
doubt for violating Section 9 of the Dangerous Drugs Act of 1972 (R.A. No.
6425), as amended by R.A. No. 7659. He was sentenced to suffer the penalty of
death by lethal injection.
In an Information dated September 26, 1996, appellant was charged as
follows:"That on or about September 25, 1996, at Sitio Bulan, Barangay Sawmill,
Municipality of Villaverde, Province of Nueva Vizcaya, Philippines, and within
the jurisdiction of this Honorable Court, the above-named accused, who was
caught in flagrante delicto and without authority of law, did then and there
wilfully (sic), unlawfully and feloniously plant, cultivate and culture seven (7)
fully grown marijuana plants known as Indian Hemp weighing 2.194 kilos, from
which dangerous drugs maybe (sic) manufactured or derived, to the damage
and prejudice of the government of the Republic of the Philippines.
"That the property where the said seven (7) fully grown marijuana plants were
planted, cultivated and cultured shall be confiscated and escheated in favor of
the government.
"CONTRARY TO LAW."2
On November 15, 1996, appellant was arraigned and, with assistance of counsel,
pleaded not guilty to the charge. Trial on the merits then ensued.
The first witness for the prosecution was SPO3 Marcelo Tipay, a member of the
police force of Villaverde, Nueva Vizcaya. He testified that at around 10:15 a.m.
of September 24, 1996, he received a tip from an unnamed informer about the
presence of a marijuana plantation, allegedly owned by appellant at Sitio Bulan,
Ibung, Villaverde, Nueva Vizcaya.3 The prohibited plants were allegedly planted
close to appellant's hut. Police Inspector Alejandro R. Parungao, Chief of Police
of Villaverde, Nueva Vizcaya then formed a reaction team from his operatives to
verify the report. The team was composed of SPO3 Marcelo M. Tipay, SPO2 Noel
V. Libunao, SPO2 Pedro S. Morales, SPO1 Romulo G. Tobias and PO2 Alfelmer I.
Balut. Inspector Parungao gave them specific instructions to "uproot said
marijuana plants and arrest the cultivator of same."4
At approximately 5:00 o'clock A.M. the following day, said police team,
accompanied by their informer, left for the site where the marijuana plants
were allegedly being grown. After a three-hour, uphill trek from the nearest
barangay road, the police operatives arrived at the place pinpointed by their
informant. The police found appellant alone in his nipa hut. They, then,
proceeded to look around the area where appellant had his kaingin and saw
seven (7) five-foot high, flowering marijuana plants in two rows, approximately
25 meters from appellant's hut.5 PO2 Balut asked appellant who owned the
prohibited plants and, according to Balut, the latter admitted that they were
his.6 The police uprooted the seven marijuana plants, which weighed 2.194
kilograms.7 The police took photos of appellant standing beside the cannabis
plants.8 Appellant was then arrested. One of the plants, weighing 1.090
kilograms, was sent to the Philippine National Police Crime Laboratory in
Bayombong, Nueva Vizcaya for analysis.9 Inspector Prevy Fabros Luwis, the
Crime Laboratory forensic analyst, testified that upon microscopic examination
of said plant, she found cystolitic hairs containing calcium carbonate, a positive
indication for marijuana.10 She next conducted a chemical examination, the
results of which confirmed her initial impressions. She found as follows:
"SPECIMEN SUBMITTED: Exh "A" - 1.090 grams of uprooted suspected
marijuana plant placed inside a white sack with markings.
xxx
"FINDINGS: Qualitative examination conducted on the above stated specimen
gave POSITIVE result to the test for Marijuana, a prohibited drug." 11
The prosecution also presented a certification from the Department of
Environment and Natural Resources that the land cultivated by appellant, on
which the growing marijuana plants were found, was Lot 3224 of Timberland
Block B, which formed part of the Integrated Social Forestry Area in Villaverde,
Nueva Vizcaya.12 This lot was part of the public domain. Appellant was
acknowledged in the certification as the occupant of the lot, but no Certificate of
Stewardship had yet been issued in his favor.13
As its sole witness, the defense presented appellant. He testified that at around
10:00 o'clock A.M., September 25, 1996, he was weeding his vegetable farm in
Sitio Bulan when he was called by a person whose identity he does not know. He
was asked to go with the latter to "see something." 14 This unknown person then
brought appellant to the place where the marijuana plants were found,
approximately 100 meters away from his nipa hut.15 Five armed policemen
were present and they made him stand in front of the hemp plants. He was then
asked if he knew anything about the marijuana growing there. When he denied
any knowledge thereof, SPO2 Libunao poked a fist at him and told him to admit
ownership of the plants.16 Appellant was so nervous and afraid that he admitted
owning the marijuana.17
The police then took a photo of him standing in front of one of the marijuana
plants. He was then made to uproot five of the cannabis plants, and bring them
to his hut, where another photo was taken of him standing next to a bundle of
uprooted marijuana plants.18 The police team then brought him to the police
station at Villaverde. On the way, a certain Kiko Pascua, a barangay peace officer
of Barangay Sawmill, accompanied the police officers. Pascua, who bore a
grudge against him, because of his refusal to participate in the former's illegal
logging activities, threatened him to admit owning the marijuana, otherwise he
would "be put in a bad situation."19 At the police headquarters, appellant
reiterated that he knew nothing about the marijuana plants seized by the
police.20
On cross-examination, appellant declared that there were ten other houses
around the vicinity of his kaingin, the nearest house being 100 meters
away.21 The latter house belonged to one Carlito (Lito) Pascua, an uncle of the
barangay peace officer who had a grudge against him. The spot where the
marijuana plants were found was located between his house and Carlito
Pascua's.22
The prosecution presented SPO3 Tipay as its rebuttal witness. His testimony
was offered to rebut appellant's claim that the marijuana plants were not
planted in the lot he was cultivating.23 Tipay presented a sketch he
made,24 which showed the location of marijuana plants in relation to the old and
new nipa huts of appellant, as well as the closest neighbor. According to Tipay,
the marijuana plot was located 40 meters away from the old hut of Valdez and
250 meters distant from the hut of Carlito Pascua.25 Tipay admitted on cross-
examination that no surveyor accompanied him when he made the
measurements.26 He further stated that his basis for claiming that appellant was
the owner or planter of the seized plants was the information given him by the
police informer and the proximity of appellant's hut to the location of said
plants.27
Finding appellant's defense insipid, the trial court held appellant liable as
charged for cultivation and ownership of marijuana plants as follows:
"WHEREFORE, finding the accused GUILTY beyond reasonable doubt of
cultivating marijuana plants punishable under section 9 of the Dangerous Drugs
Act of 1972, as amended, accused is hereby sentenced to death by lethal
injection. Costs against the accused.
"SO ORDERED."28
Appellant assigns the following errors for our consideration:
I seizures. He relies on the ruling of the US Supreme Court in Terry v. Ohio, 392 US
THE TRIAL COURT GRAVELY ERRED IN ADMITTING AS EVIDENCE THE
SEVEN (7) MARIJUANA PLANTS DESPITE THEIR INADMISSIBILITY
BEING PRODUCTS OF AN ILLEGAL SEARCH.
II
THE TRIAL COURT GRAVELY ERRED IN CONVICTING APPELLANT OF
VIOLATION OF SECTION 9, REPUBLIC ACT NO. 6425 DESPITE THE
INADMISSIBILITY OF THE CORPUS DELICTI AND THE FAILURE OF THE
PROSECUTION TO PROVE HIS GUILT BEYOND REASONABLE DOUBT.
III
THE TRIAL COURT GRAVELY ERRED IN IMPOSING THE SUPREME
PENALTY OF DEATH UPON APPELLANT DESPITE FAILURE OF THE
PROSECUTION TO PROVE THAT THE LAND WHERE THE MARIJUANA
PLANTS WERE PLANTED IS A PUBLIC LAND ON THE ASSUMPTION
THAT INDEED APPELLANT PLANTED THE SUBJECT MARIJUANA.29
Simply stated, the issues are:
(1) Was the search and seizure of the marijuana plants in the present
case lawful?
(2) Were the seized plants admissible in evidence against the accused?
(3) Has the prosecution proved appellant's guilt beyond reasonable
doubt?
(4) Is the sentence of death by lethal injection correct?
The first and second issues will be jointly discussed because they are
interrelated.
Appellant contends that there was unlawful search. First, the records show that
the law enforcers had more than ample time to secure a search warrant. Second,
that the marijuana plants were found in an unfenced lot does not remove
appellant from the mantle of protection against unreasonable searches and
1, 20 L. Ed 2d 898, 88 S. Ct. 1868 (1968), to the effect that the protection against
unreasonable government intrusion protects people, not places.
For the appellee, the Office of the Solicitor General argues that the records
clearly show that there was no search made by the police team, in the first place.
The OSG points out that the marijuana plants in question were grown in an
unfenced lot and as each grew about five (5) feet tall, they were visible from
afar, and were, in fact, immediately spotted by the police officers when they
reached the site. The seized marijuana plants were, thus, in plain view of the
police officers. The instant case must, therefore, be treated as a warrantless
lawful search under the "plain view" doctrine.
The court a quo upheld the validity of the search and confiscation made by the
police team on the finding that:
"...It seems there was no need for any search warrant. The policemen went to
the plantation site merely to make a verification. When they found the said
plants, it was too much to expect them to apply for a search warrant. In view of
the remoteness of the plantation site (they had to walk for six hours back and
forth) and the dangers lurking in the area if they stayed overnight, they had a
valid reason to confiscate the said plants upon discovery without any search
warrant. Moreover, the evidence shows that the lot was not legally occupied by
the accused and there was no fence which evinced the occupant's desire to keep
trespassers out. There was, therefore, no privacy to protect, hence, no search
warrant was required."30
The Constitution31 lays down the general rule that a search and seizure must be
carried on the strength of a judicial warrant. Otherwise, the search and seizure
is deemed "unreasonable." Evidence procured on the occasion of an
unreasonable search and seizure is deemed tainted for being the proverbial
fruit of a poisonous tree and should be excluded.32 Such evidence shall be
inadmissible in evidence for any purpose in any proceeding.33
In the instant case, there was no search warrant issued by a judge after personal
determination of the existence of probable cause. From the declarations of the
police officers themselves, it is clear that they had at least one (1) day to obtain
a warrant to search appellant's farm. Their informant had revealed his name to
them. The place where the cannabis plants were planted was pinpointed. From
the information in their possession, they could have convinced a judge that
there was probable cause to justify the issuance of a warrant. But they did not.
Instead, they uprooted the plants and apprehended the accused on the excuse
that the trip was a good six hours and inconvenient to them. We need not
underscore that the protection against illegal search and seizure is
constitutionally mandated and only under specific instances are searches
allowed without warrants.34 The mantle of protection extended by the Bill of
Rights covers both innocent and guilty alike against any form of high-
handedness of law enforcers, regardless of the praiseworthiness of their
intentions.
We find no reason to subscribe to Solicitor General's contention that we apply
the "plain view" doctrine. For the doctrine to apply, the following elements must
be present:
(a) a prior valid intrusion based on the valid warrantless arrest in
which the police are legally present in the pursuit of their official
duties;
(b) the evidence was inadvertently discovered by the police who have
the right to be where they are; and
(c) the evidence must be immediately apparent; and
(d) plain view justified mere seizure of evidence without further
search.35
In the instant case, recall that PO2 Balut testified that they first located the
marijuana plants before appellant was arrested without a warrant. 36 Hence,
there was no valid warrantless arrest which preceded the search of appellant's
premises. Note further that the police team was dispatched to
appellant's kaingin precisely to search for and uproot the prohibited flora. The
seizure of evidence in "plain view" applies only where the police officer
is not searching for evidence against the accused, but inadvertently comes
across an incriminating object.37 Clearly, their discovery of the cannabis plants
was not inadvertent. We also note the testimony of SPO2 Tipay that upon
arriving at the area, they first had to "look around the area" before they could
spot the illegal plants.38 Patently, the seized marijuana plants were not
"immediately apparent" and a "further search" was needed. In sum, the
marijuana plants in question were not in "plain view" or "open to eye and
hand." The "plain view" doctrine, thus, cannot be made to apply.
Nor can we sustain the trial court's conclusion that just because the marijuana
plants were found in an unfenced lot, appellant could not invoke the protection
afforded by the Charter against unreasonable searches by agents of the State.
The right against unreasonable searches and seizures is the immunity of
one's person, which includes his residence, his papers, and other
possessions.39 The guarantee refers to "the right of personal security" 40 of the
individual. As appellant correctly points out, what is sought to be protected
against the State's unlawful intrusion are persons, not places. 41 To conclude
otherwise would not only mean swimming against the stream, it would also
lead to the absurd logic that for a person to be immune against unreasonable
searches and seizures, he must be in his home or office, within a fenced yard or
a private place. The Bill of Rights belongs as much to the person in the street as
to the individual in the sanctuary of his bedroom.
We therefore hold, with respect to the first issue, that the confiscated plants
were evidently obtained during an illegal search and seizure. As to the second
issue, which involves the admissibility of the marijuana plants as evidence for
the prosecution, we find that said plants cannot, as products of an unlawful
search and seizure, be used as evidence against appellant. They are fruits of the
proverbial poisoned tree. It was, therefore, a reversible error on the part of the
court a quo to have admitted and relied upon the seized marijuana plants as
evidence to convict appellant.
We now proceed to the third issue, which revolves around the sufficiency of the
prosecution's evidence to prove appellant's guilt. Having declared the seized
marijuana plants inadmissible in evidence against appellant, we must now
address the question of whether the remaining evidence for the prosecution
suffices to convict appellant?
In convicting appellant, the trial court likewise relied on the testimony of the
police officers to the effect that appellant admitted ownership of the marijuana
when he was asked who planted them. It made the following observation:
"It may be true that the admission to the police by the accused that he planted
the marijuana plants was made in the absence of any independent and
competent counsel. But the accused was not, at the time of police verification;
under custodial investigation. His admission is, therefore, admissible in
evidence and not violative of the constitutional fiat that admission given during
custodial investigation is not admissible if given without any counsel." 42
Appellant now argues that his admission of ownership of the marijuana plants
in question cannot be used against him for being violative of his right to counsel
during the police investigation. Hence, it was error for the trial court to have
relied upon said admission of ownership. He submits that the investigation
conducted by the police officers was not a general inquiry, but was meant to
elicit information on the ownership of the marijuana plants. Appellant theorizes
that since the investigation had narrowed down to him, competent and
independent counsel should have assisted him, when the police sought
information from him regarding the ownership of the prohibited plants.
Appellant claims the presumption of regularity of duty of officers cannot be
made to apply to his purported voluntarily confession of ownership of the
marijuana plants. Nor can it override his constitutional right to counsel during
investigation.
The Office of the Solicitor General believes otherwise. The OSG avers that
appellant was not yet under custodial investigation when he admitted to the
police that he owned the marijuana plants. His right to competent and
independent counsel, accordingly, had not yet attached. Moreover, appellants
failure to impute any false motive for the police officers to falsely accuse him
indicates that the presumption of regularity in the performance of official duties
by police officers was not sufficiently rebutted.
The Constitution plainly declares that any person under investigation for the
commission of an offense shall have the right: (1) to remain silent; (2) to have
competent and independent counsel preferably of his own choice; and (3) to be
informed of such rights. These rights cannot be waived except in writing and in
the presence of counsel.43 An investigation begins when it is no longer a general
inquiry but starts to focus on a particular person as a suspect, i.e., when the
police investigator starts interrogating or exacting a confession from the
suspect in connection with an alleged offense.44 The moment the police try to
elicit admissions or confessions or even plain information from a person
suspected of having committed an offense, he should at that juncture be assisted
by counsel, unless he waives the right in writing and in the presence of
counsel.45
In the instant case we find that, from the start, a tipster had furnished the police
appellant's name as well as the location of appellant's farm, where the
marijuana plants were allegedly being grown. While the police operation was
supposedly meant to merely "verify" said information, the police chief had
likewise issued instructions to arrest appellant as a suspected marijuana
cultivator. Thus, at the time the police talked to appellant in his farm, the latter
was already under investigation as a suspect. The questioning by the police was
no longer a general inquiry.46
Under cross-examination, PO2 Balut stated, he "did not yet admit that he is the
cultivator of that marijuana so we just asked him and I think there is no need to
inform (him of) his constitutional rights because we are just asking him..." 47 In
trying to elicit information from appellant, the police was already investigating
appellant as a suspect. At this point, he was already under custodial
investigation and had a right to counsel even if he had not yet been arrested.
Custodial investigation is "questioning initiated by law enforcement officers
after a person has been taken into custody or otherwise deprived of his freedom
of action in any significant way."48 As a suspect, two armed policemen
interrogated appellant. Behind his inquisitors were a barangay peace officer and
three other armed policemen.49 All had been dispatched to arrest him.50 From
these circumstances, we may infer that appellant had already been deprived of
his freedom of action in a significant way, even before the actual arrest. Note
that even before he was arrested, the police made him incriminatingly pose for
photos in front of the marijuana plants.
Moreover, we find appellant's extrajudicial confession flawed with respect to its
admissibility. For a confession to be admissible, it must satisfy the following
requirements: (1) it must be voluntary; (2) it must be made with the assistance
of competent and independent counsel; (3) it must be express; and (4) it must
be in writing.51 The records show that the admission by appellant was verbal. It
was also uncounselled. A verbal admission allegedly made by an accused during
the investigation, without the assistance of counsel at the time of his arrest and
even before his formal investigation is not only inadmissible for being violative
of the right to counsel during criminal investigations, it is also hearsay.52 Even if
the confession or admission were "gospel truth", if it was made without
assistance of counsel and without a valid waiver of such assistance, the
confession is inadmissible in evidence, regardless of the absence of coercion or
even if it had been voluntarily given.53
It is fundamental in criminal prosecutions that before an accused may be
convicted of a crime, the prosecution must establish by proof beyond
reasonable doubt that a crime was committed and that the accused is the author
thereof.54 The evidence arrayed against the accused, however, must not only
stand the test of reason,55 it must likewise be credible and
competent.56 Competent evidence is "generally admissible"
evidence.57 Admissible evidence, in turn, is evidence "of such a character that
the court or judge is bound to receive it, that is, allow it to be introduced at
trial."58
In the instant case, the trial court relied on two pieces of probative matter to
convict appellant of the offense charged.1wphi1 These were the seized
marijuana plants, and appellant's purportedly voluntary confession of
ownership of said marijuana plants to the police. Other than these proofs, there
was no other evidence presented to link appellant with the offense charged. As
earlier discussed, it was error on the trial court's part to have admitted both of
these proofs against the accused and to have relied upon said proofs to convict
him. For said evidence is doubly tainted.
First, as earlier pointed out, the seized marijuana plants were obtained in
violation of appellant's constitutional rights against unreasonable searches and
seizures. The search and seizure were void ab initio for having been conducted
without the requisite judicial warrant. The prosecution's very own evidence
clearly establishes that the police had sufficient time to obtain a warrant. There
was no showing of such urgency or necessity for the warrantless search or the
immediate seizure of the marijuana plants subject of this case. To reiterate, said
marijuana plants cannot be utilized to prove appellant's guilt without running
afoul of the constitutional guarantees against illegal searches and the
inadmissibility of evidence procured pursuant to an unlawful search and
seizure.
Second, the confession of ownership of the marijuana plants, which appellant
allegedly made to the police during investigation, is not only hearsay but also
violative of the Bill of Rights. The purported confession was made without the
assistance of competent and independent counsel, as mandated by the Charter.
Thus, said confession cannot be used to convict appellant without running afoul
of the Constitution's requirement that a suspect in a criminal investigation must
have the services of competent and independent counsel during such
investigation.
In sum, both the object evidence and the testimonial evidence as to appellant's
voluntary confession of ownership of the prohibited plants relied upon to prove
appellant's guilt failed to meet the test of Constitutional competence.
The Constitution decrees that, "In all criminal prosecutions, the accused shall be
presumed innocent until the contrary is proved..."59 To justify the conviction of
the accused, the prosecution must adduce that quantum of evidence sufficient to
overcome the constitutional presumption of innocence. The prosecution must
stand or fall on its evidence and cannot draw strength from the weakness of the
evidence for the accused.60 Absent the required degree of proof of an accused's
guilt, he is entitled to an acquittal.61 In this case, the seized marijuana plants
linking appellant to the crime charged are miserably tainted with constitutional
infirmities, which render these inadmissible "for any purpose in any
proceeding."62 Nor can the confession obtained during the uncounselled
investigation be used against appellant, "it being inadmissible in evidence
against him."63 Without these proffered but proscribed materials, we find that
the prosecution's remaining evidence did not even approximate the quantum of
evidence necessary to warrant appellant's conviction. Hence, the presumption
of innocence in his favor stands. Perforce, his acquittal is in order.
In acquitting an appellant, we are not saying that he is lily-white, or pure as
driven snow. Rather, we are declaring his innocence because the prosecution's
evidence failed to show his guilt beyond reasonable doubt. For that is what the
basic law requires. Where the evidence is insufficient to overcome the
presumption of innocence in favor of the accused, then his "acquittal must
follow in faithful obeisance to the fundamental law."64
WHEREFORE, the decision promulgated on February 18, 1997, by the Regional
Trial Court of Bayombong, Nueva Vizcaya, Branch 27, in Criminal Case No. 3105,
finding Abe Valdez y Dela Cruz, guilty beyond reasonable doubt of violating
Section 9 of the Dangerous Drugs Act of 1972, and imposing upon him the death
penalty, is hereby REVERSED and SET ASIDE for insufficiency of evidence.
Appellant is ACQUITTED and ordered RELEASED immediately from
confinement unless held for another lawful cause.
SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 172035 July 4, 2012
FERNANDO Q. MIGUEL, Petitioner,
vs.
THE HONORABLE SANDIGANBAYAN, Respondent.
DECISION
BRION, J.:
Before the Court is a petition for certiorari under Rule 651 filed by Fernando Q.
Miguel (petitioner), assailing the January 25, 2006 and March 27, 2006
resolutions2 of the Sandiganbayan. These resolutions (i) ordered the petitioners
suspension from public office and (ii) denied the petitioners motion for
reconsideration of the suspension order.
THE ANTECEDENT FACTS
On May 29, 1996, then Vice Mayor Mercelita M. Lucido and other local
officials3 of Koronadal City, South Cotabato filed a letter-complaint with the
Office of the Ombudsman-Mindanao (Ombudsman)4 charging the petitioner,
among others,5 with violation of Republic Act (R.A.) No. 3019, in connection
with the consultancy services for the architectural aspect, the engineering
design, and the construction supervision and management of the proposed
Koronadal City public market (project).6
In a June 27, 1996 order, the Ombudsman directed the petitioner, among others,
to submit his counter-affidavit. On October 23, 1996, after moving for an
extension, the petitioner filed his counter-affidavit.7 In its July 29, 1999
resolution, the Ombudsman found probable cause against the petitioner and
some private individuals for violation of R.A. No. 3019 and against the petitioner
alone for Falsification of Public Document under Article 171, par. 4 of the
Revised Penal Code.8
On March 1, 2000, the Ombudsman filed the corresponding informations with
the Sandiganbayan.9 The information for violation of Section 3(e) of R.A. No.
3019 reads:
That on 10 January 1995 or sometime prior or subsequent thereto, in the
Municipality of Koronadal, South Cotabato, Philippines, and within the
jurisdiction of this Honorable Court, the [petitioner], a high ranking public
officer in his capacity as former Municipal Mayor of Koronadal, South Cotabato,
and as such while in the performance of his official functions, committing the
offense in relation to his office, taking advantage of his official position,
conspiring and confederating with the private [individuals] xxx acting with
evident bad faith and manifest partiality, did then and there willfully, unlawfully
and criminally give unwarranted benefits and advantages to said [accused], by
inviting them to participate in the prequalification of consultants to provide the
Detailed Architectural & Engineering Design and Construction Supervision and
Management of the proposed Koronadal Public Market, without causing the
publication of said invitation in a newspaper of general circulation, thereby
excluding other consultants from participating in said
prequalification. (Emphases and underscoring added)
10
On motions separately filed by two of the petitioners co-accused,11 the
Sandiganbayan ordered the Office of the Special Prosecutor (OSP) to conduct a
reinvestigation. On August 21, 2000, the petitioner, through counsel, followed
suit and orally moved for a reinvestigation, which the Sandiganbayan likewise
granted. The Sandiganbayan gave the petitioner ten (10) days within which to
file his counter-affidavit with the OSP.12
Instead of submitting his counter-affidavit, the petitioner asked13 the
Sandiganbayan for a thirty-day extension to submit his counter-affidavit.
Shortly before the expiry of the extension requested, the petitioner asked 14 the
OSP for an additional thirty-day period to file his counter-affidavit. Despite the
two extensions asked and granted, the petitioner asked the OSP anew for a
twenty-day extension period.15
Despite the extension period asked and given, the petitioner failed to file his
counter-affidavit, prompting Prosecutor Norberto B. Ruiz to declare that the
petitioner had waived his right to submit countervailing evidence (April 25,
2001 resolution). On July 31, 2001, then Ombudsman Aniano Desierto approved
the resolution.16
On August 7, 2001, Prosecutor Ruiz asked the Sandiganbayan for the
arraignment and trial of the petitioner and of the other accused private
individuals.17
On August 6, 2002, after several extensions sought and granted, the petitioner
filed a Motion to Quash and/or Reinvestigation for the criminal cases against
him. On February 18, 2003, the Sandiganbayan denied the petitioners motion
because of the pending OSP reinvestigation this, despite the OSPs earlier
termination of the reinvestigation for the petitioners continuous failure to
submit his counter-affidavit.18 The petitioner did not question the denial of his
motion.
On November 3, 2004, the petitioner was arraigned; he pleaded not guilty in
both criminal cases.19
On April 28, 2005, the OSP filed a Motion to Suspend [the petitioner] Pendente
Lite. On June 27, 2005, the petitioner filed his "Vigorous Opposition" based on
the "obvious and fatal defect of the [i]nformation" in failing to allege that the
giving of unwarranted benefits and advantages was done through manifest
partiality, evident bad faith or gross inexcusable negligence.20
On January 25, 2006, the Sandiganbayan promulgated the assailed
resolution21 suspending the petitioner pendente lite
WHEREFORE, PREMISES CONSIDERED, the Prosecutions Motion is GRANTED.
As prayed for, the Court hereby orders the suspension of [the petitioner] from
his position as City Mayor, Koronadal City, South Cotabato, and from any other
public position he now holds. His suspension shall be for a period of ninety (90)
days only.22
On February 2, 2006, the petitioner moved for reconsideration of his
suspension order and demanded for a pre-suspension hearing.23 The
Sandiganbayan denied his motion,24 prompting him to file this certiorari
petition to challenge the validity of his suspension order.
THE PETITION
The petitioner claims that the Sandiganbayan gravely abused its discretion in
ordering his suspension despite the failure of the information to allege that the
giving of unwarranted benefits and advantages by the petitioner was made
through "manifest partiality, evident bad faith or gross inexcusable negligence."
He alleges that the phrases "evident bad faith" and "manifest partiality" actually
refers not to him, but to his co-accused,25 rendering the information fatally
defective.
The petitioner bewails the lack of hearing before the issuance of his suspension
order. Citing Luciano, et al. v. Hon. Mariano, etc., et al.,26 he claims that
"[n]owhere in the records of the [case] can [one] see any order or resolution
requiring the [p]etitioner to show cause at a specific date of hearing why he
should not be ordered suspended."27 For the petitioner, the requirement of a
pre-suspension hearing can only be satisfied if the Sandiganbayan ordered an
actual hearing to settle the "defect" in the information.
THE OSPS COMMENT
The OSP argues for the sufficiency of the information since all the elements of
the offense under Section 3(b) of R.A. No. 3019 are specifically pleaded by way
of ultimate facts. These elements are:
1. The petitioner was the Municipal Mayor of Koronadal, South
Cotabato at the time material to the acts complained of;
2. The petitioner acted with manifest partiality and evident bad faith
when he invited only his co-accused private individuals to participate
in the prequalification of consultants for the project instead of
publishing it in a newspaper of general circulation; and
3. The petitioners actions, performed in relation to his office, gave
unwarranted benefits and advantages to his co-accused.28
The OSP faults the petitioner for his attempt to mislead the Court on the
sufficiency of the allegations in the information, by conveniently failing to cite
the phrase "acting with evident bad faith and manifest partiality" when the
petitioner quoted the "relevant" portions of the information in his petition.
Citing Juan v. People,29 the OSP argues that while no actual pre-suspension
hearing was conducted, the events preceding the issuance of the suspension
order already satisfied the purpose of conducting a pre-suspension hearing
i.e., basically, to determine the validity of the information. Here, the petitioner
was afforded his right to preliminary investigation both by the Ombudsman and
by the OSP (when the petitioner moved for a reinvestigation with the
Sandiganbayan); the acts for which the petitioner was charged constitute a
violation of R.A. No. 3019 and Title VII, Book II of the Revised Penal Code; and
the petitioner already moved to quash the information, although unsuccessfully,
after he had been declared to have waived his right to submit countervailing
evidence in the reinvestigation by the OSP.30
ISSUES
There are only two issues presented for our resolution:
1. Whether the information, charging the petitioner with violation of
Section 3(e) of R.A. No. 3019, is valid; and
2. If it is valid, whether the absence of an actual pre-suspension hearing
renders invalid the suspension order against the petitioner.
THE COURTS RULING
We dismiss the petition for failure to establish any grave abuse of discretion in
the issuance of the assailed resolutions.
The information for violation of R.A. No. 3019 is valid
In deference to the constitutional right of an accused to be informed of the
nature and the cause of the accusation against him,31 Section 6, Rule 110 of the
Revised Rules of Criminal Procedure (Rules)32 requires, inter alia, that the
information shall state the designation of the offense given by the statute and
the acts or omissions imputed which constitute the offense charged.
Additionally, the Rules requires that these acts or omissions and its attendant
circumstances "must be stated in ordinary and concise language" and "in terms
sufficient to enable a person of common understanding to know what offense is
being charged x x x and for the court to pronounce judgment."33
The test of the informations sufficiency is whether the crime is described in
intelligible terms and with such particularity with reasonable certainty so that
the accused is duly informed of the offense charged. In particular, whether an
information validly charges an offense depends on whether the material facts
alleged in the complaint or information shall establish the essential elements of
the offense charged as defined in the law. The raison detre of the requirement
in the Rules is to enable the accused to suitably prepare his defense.34
In arguing against the validity of the information, the petitioner appears to go
beyond the standard of a "person of common understanding" in appreciating
the import of the phrase "acting with evident bad faith and manifest partiality."
A reading of the information clearly reveals that the phrase "acting with evident
bad faith and manifest partiality" was merely a continuation of the prior
allegation of the acts of the petitioner, and that he ultimately acted with evident
bad faith and manifest partiality in giving unwarranted benefits and advantages
to his co-accused private individuals. This is what a plain and non-legalistic
reading of the information would yield.
Notably, in his petition, the petitioner would have us believe that this elemental
phrase was actually omitted in the information35 when, in his reaction to the
OSPs comment, what the petitioner actually disputes is simply the clarity of the
phrases position, in relation with the other averments in the information. Given
the supposed ambiguity of the subject being qualified by the phrase "acting with
evident bad faith and manifest partiality," the remedy of the petitioner, if at all,
is merely to move for a bill of particulars and not for the quashal of an
information which sufficiently alleges the elements of the offense charged.36
The pre-suspension order is valid
Section 13 of R.A. No. 3019 reads:
Section 13. Suspension and loss of benefits. Any public officer against whom any
criminal prosecution under a valid information under this Act or under the
provisions of the Revised Penal Code on bribery is pending in court, shall be
suspended from office. Should he be convicted by final judgment, he shall lose
all retirement or gratuity benefits under any law, but if he is acquitted, he shall
be entitled to reinstatement and to the salaries and benefits which he failed to
receive during suspension, unless in the meantime administrative proceedings
have been filed against him.
While the suspension of a public officer under this provision is mandatory, 37 the
suspension requires a prior hearing to determine "the validity of the
information"38 filed against him, "taking into account the serious and far
reaching consequences of a suspension of an elective public official even before
his conviction."39 The accused public officials right to challenge the validity of
the information before a suspension order may be issued includes the right to
challenge the (i) validity of the criminal proceeding leading to the filing of an
information against him, and (ii) propriety of his prosecution on the ground that
the acts charged do not constitute a violation of R.A. No. 3019 or of the
provisions on bribery of the Revised Penal Code.40
In Luciano v. Mariano41 that the petitioner relied upon, the Court required, "by
way of broad guidelines for the lower courts in the exercise of the power of
suspension," that
(c) upon the filing of such information, the trial court should issue an order
with proper notice requiring the accused officer to show cause at a specific date
of hearing why he should not be ordered suspended from office pursuant to the
cited mandatory provisions of the Act. Where either the prosecution seasonably
files a motion for an order of suspension or the accused in turn files a motion to
quash the information or challenges the validity thereof, such show-cause order
of the trial court would no longer be necessary. What is indispensable is that the
trial court duly hear the parties at a hearing held for determining the validity of
the information, and thereafter hand down its ruling, issuing the corresponding
order of suspension should it uphold the validity of the information or
withholding such suspension in the contrary case.
(d) No specific rules need be laid down for such pre-suspension hearing. Suffice
it to state that the accused should be given a fair and adequate opportunity to
challenge the validity of the criminal proceedings against him, e.g. that he has
not been afforded the right of due preliminary investigation; that the acts for
which he stands charged do not constitute a violation of the provisions of
Republic Act No. 3019 or of the bribery provisions of the Revised Penal Code
which would warrant his mandatory suspension from office under section 13 of
the Act; or he may present a motion to quash the information on any of the
grounds provided in Rule 117 of the Rules of Court. (Emphasis supplied)
The petitioner questions the absence of any show cause order issued by the
Sandiganbayan before his suspension in office was ordered. As clear as the day,
however, Luciano considered it unnecessary for the trial court to issue a show
cause order when the motion, seeking the suspension of the accused pendente
lite, has been submitted by the prosecution, as in the present case.
The purpose of the law in requiring a pre-suspension hearing is to determine
the validity of the information so that the trial court can have a basis to either
suspend the accused and proceed with the trial on the merits of the case,
withhold the suspension and dismiss the case, or correct any part of the
proceedings that impairs its validity.1wphi1 That hearing is similar to a
challenge to the validity of the information by way of a motion to quash.42
While a pre-suspension hearing is aimed at securing for the accused fair and
adequate opportunity to challenge the validity of the information or the
regularity of the proceedings against him,43 Luciano likewise emphasizes that no
hard and fast rule exists in regulating its conduct.44 With the purpose of a pre-
suspension hearing in mind, the absence of an actual hearing alone cannot be
determinative of the validity of a suspension order.
In Bedruz v. Sandiganbayan,45 the Court considered the opposition of the
accused (to the prosecutions motion to suspend pendente lite) as sufficient to
dispense with the need to actually set the prosecutions motion for hearing. The
same conclusion was reached in Juan v. People,46 where the Court ruled:
In the case at bar, while there was no pre-suspension hearing held to determine
the validity of the Informations that had been filed against petitioners, we
believe that the numerous pleadings filed for and against them have achieved
the goal of this procedure. The right to due process is satisfied nor just by an
oral hearing but by the filing and the consideration by the court of the parties'
pleadings, memoranda and other position papers.
Since a pre-suspension hearing is basically a due process requirement, when an
accused public official is given an adequate opportunity to be heard on his
possible defenses against the mandatory suspension under R.A. No. 3019, then
an accused would have no reason to complain that no actual hearing was
conducted.47 It is well settled that "to be heard" does not only mean oral
arguments in court; one may be heard also through pleadings. Where
opportunity to be heard, either through oral arguments or pleadings, has been
accorded, no denial of procedural due process exists.48
In the present case, the petitioner (i) filed his Vigorous Opposition (to the OSPs
Motion to Suspend Accused Pendente Lite), and after receiving an adverse
ruling from the Sandiganbayan, (ii) moved for reconsideration of the
suspension order issued against him, and (iii) filed a Reply to the OSPs
Opposition to his plea for reconsideration.49Given this opportunity, we find that
the petitioners continued demand for the conduct of an actual pre-suspension
hearing based on the same alleged "defect in the information," 50 which we
have found wanting has legally nothing to anchor itself on.
Another reason that militates against the petitioners position relates to the
nature of Section 13 of R.A. No. 3019; it is not a penal provision that would call
for a liberal interpretation in favor of the accused public official and a strict
construction against the State.51 The suspension required under this provision is
not a penalty, as it is not imposed as a result of judicial proceedings; in fact, if
acquitted, the accused official shall be entitled to reinstatement and to the
salaries and benefits which he failed to receive during his suspension.52
Rather, the suspension under Section 13 of R.A. No. 3019 is a mere preventive
measure53 that arises from the legal presumption that unless the accused is
suspended, he may frustrate his prosecution or commit further acts of
malfeasance or do both, in the same way that upon a finding that there is
probable cause to believe that a crime has been committed and that the accused
is probably guilty thereof, the law requires the judge to issue a warrant for the
arrest of the accused.54
Suspension under R.A. No. 3019 being a mere preventive measure whose
duration shall in no case exceed ninety (90) days, 55 the adequacy of the
opportunity to contest the validity of the information and of the proceedings
that preceded its filing vis--vis the merits of the defenses of the accused cannot
be measured alone by the absence or presence of an actual hearing. An
opportunity to be heard on ones defenses, however unmeritorious it may be,
against the suspension mandated by law equally and sufficiently serves both the
due process right of the accused and the mandatory nature of the suspension
required by law.
Lest it be forgotten, Section 13 of R.A. No. 3019 reinforces the principle
enshrined in the Constitution that a public office is a public trust. 56 In light of the
constitutional principle underlying the imposition of preventive suspension of a
public officer charged under a valid information and the nature of this
suspension, the petitioners demand for a trial-type hearing in the present case
would only overwhelmingly frustrate, rather than promote, the orderly and
speedy dispensation of justice.
WHEREFORE, we hereby DISMISS the petition for lack of merit.
SO ORDERED.
SECOND DIVISION
G.R. No. 179031 February 24, 2014
PEOPLE OF THE PHILIPPINES, Plaintiff Appellee,
vs.
BENJAMIN SORIA y GOMEZ, Accused-Appellant.
RESOLUTION
DEL CASTILLO, J.:
On November 14, 2012, this Court rendered its Decision1 in this case finding
accused-appellant Benjamin Soria y Gomez guilty beyond reasonable doubt of
rape. The dispositive portion of the Decision reads:
WHEREFORE, the December 29, 2006 Decision of the Court of Appeals in CA-GR.
CR-H.C. No. 01442 is AFFIRMED with MODIFICATIONS. Accused-appellant
Benjamin Soria y Gomez is found guilty beyond reasonable doubt of the crime of
rape by sexual assault and is sentenced to suffer the penalty of twelve (12)
years of prision mayor, as minimum, to twenty (20) years of reclusion temporal,
as maximum. He is also ordered to pay "AAA" the amounts of 30,000.00 as civil
indemnity, 30,000.00 as moral damages, and 30,000.00 as exemplary
damages. "AAA" is entitled to an interest on all damages awarded at the legal
rate of 6% per annum :from the date of finality of this judgment until fully paid.
SO ORDERED.2
The said Decision supposedly became final and executory on December 20,
2012.3 Subsequently, however, the Court received a letter from the Bureau of
Corrections informing us of the death of accused-appellant on August 16, 2012.
In compliance with our directive, the Director of the Bureau of Corrections
submitted on November 11, 2013, a certified true copy of the death ineffectual. Moreover, said Decision has not yet become final, and the Court still
certificate4 of accused-appellant. has the jurisdiction to set it aside.

Clearly, accused-appellants demise on August 16, 2012 transpired before the
promulgation of this Courts Decision on November 14, 2012 or before its
finality on December 20, 2012. Therefore, when accused-appellant died, his
appeal before this Court was still pending resolution.
Article 89 of the Revised Penal Code pertinently provides:
ART. 89. How criminal liability is totally extinguished. - Criminal liability is
totally extinguished:
1. By the death of the convict, as to the personal penalties; and as to pecuniary
penalties, liability therefor is extinguished only when the death of the offender
occurs before final judgment;
xxxx
The Court had no course of action but to set aside its Decision and dismiss the
criminal case against Amistoso by reason of his death.
Likewise, the November 14, 2012 Decision of this Court finding accused-
appellant guilty beyond reasonable doubt of the crime of rape had become
irrelevant and ineffectual by reason of his death on August 16, 2012.
Consequently, the same must be set aside and the case against accused-
appellant must consequently be dismissed.
ACCORDINGLY, the November 14, 2012 Decision of this Court is SET ASIDE and
Criminal Case No. Q-01-98692 before the Regional Trial Court of Quezon City,
Branch 94, is DISMISSED on account of accused-appellant's demise.
SO ORDERED.

In People v. Amistoso,5 this Court encountered a similar situation wherein the

accused-appellant died before his appeal could be resolved. The Court explained TOPIC: Rule 110 D. Place Where Action is Instituted
the implications of the accused-appellants demise as follows:
Republic of the Philippines
Given the foregoing, it is clear that the death of the accused pending appeal of
SUPREME COURT
his conviction extinguishes his criminal liability, as well as his civil liability ex
Manila
delicto. Since the criminal action is extinguished inasmuch as there is no longer
a defendant to stand as the accused, the civil action instituted therein for
EN BANC
recovery of civil liability ex delicto is ipso facto extinguished, grounded as it is
on the criminal case.
G.R. No. 192565 February 28, 2012

Undeniably, Amistosos death on December 11, 2012 preceded the

UNION BANK OF THE, PHILIPPINES and DESI TOMAS, Petitioners,
promulgation by the Court of its Decision on January 9, 2013. When Amistoso
vs.
died, his appeal before the Court was still pending and unresolved.1wphi1 The
PEOPLE OF THE PHILIPPINES, Respondent.
Court ruled upon Amistosos appeal only because it was not immediately
informed of his death.
DECISION

Amistosos death on December 11, 2012 renders the Courts Decision dated
BRION, J.:
January 9, 2013, even though affirming Amistosos conviction, irrelevant and
We review in this Rule 45 petition, the decision1 of the Regional Trial Court,
Branch 65, Makati City (RTC-Makati City) in Civil Case No. 09-1038. The petition
seeks to reverse and set aside the RTC-Makati City decision dismissing the
petition for certiorari of petitioners Union Bank of the Philippines (Union Bank)
and Desi Tomas (collectively, the petitioners). The RTC found that the
Metropolitan Trial Court, Branch 63, Makati City (MeTC-Makati City) did not
commit any grave abuse of discretion in denying the motion to quash the
information for perjury filed by Tomas.
The Antecedents
Tomas was charged in court for perjury under Article 183 of the Revised Penal
Code (RPC) for making a false narration in a Certificate against Forum Shopping.
The Information against her reads:
That on or about the 13th day of March 2000 in the City of Makati, Metro
Manila, Philippines and within the jurisdiction of this Honorable Court, the
above-named accused, did then and there willfully, unlawfully and feloniously
make untruthful statements under oath upon a material matter before a
competent person authorized to administer oath which the law requires to wit:
said accused stated in the Verification/Certification/Affidavit of merit of a
complaint for sum of money with prayer for a writ of replevin docketed as
[Civil] Case No. 342-00 of the Metropolitan Trial Court[,] Pasay City, that the
Union Bank of the Philippines has not commenced any other action or
proceeding involving the same issues in another tribunal or agency, accused
knowing well that said material statement was false thereby making a willful
and deliberate assertion of falsehood.2
The accusation stemmed from petitioner Union Banks two (2) complaints for
sum of money with prayer for a writ of replevin against the spouses Eddie and
Eliza Tamondong and a John Doe. The first complaint, docketed as Civil Case No.
98-0717, was filed before the RTC, Branch 109, Pasay City on April 13, 1998.
The second complaint, docketed as Civil Case No. 342-000, was filed on March
15, 2000 and raffled to the MeTC, Branch 47, Pasay City. Both complaints
showed that Tomas executed and signed the Certification against Forum
Shopping. Accordingly, she was charged of deliberately violating Article 183 of
the RPC by falsely declaring under oath in the Certificate against Forum
Shopping in the second complaint that she did not commence any other action
or proceeding involving the same issue in another tribunal or agency.
Tomas filed a Motion to Quash,3 citing two grounds. First, she argued that the
venue was improperly laid since it is the Pasay City court (where the Certificate
against Forum Shopping was submitted and used) and not the MeTC-Makati
City (where the Certificate against Forum Shopping was subscribed) that has
jurisdiction over the perjury case. Second, she argued that the facts charged do
not constitute an offense because: (a) the third element of perjury the willful
and deliberate assertion of falsehood was not alleged with particularity
without specifying what the other action or proceeding commenced involving
the same issues in another tribunal or agency; (b) there was no other action or
proceeding pending in another court when the second complaint was filed; and
(c) she was charged with perjury by giving false testimony while the allegations
in the Information make out perjury by making a false affidavit.
The MeTC-Makati City denied the Motion to Quash, ruling that it has jurisdiction
over the case since the Certificate against Forum Shopping was notarized in
Makati City.4 The MeTC-Makati City also ruled that the allegations in the
Information sufficiently charged Tomas with perjury.5 The MeTC-Makati City
subsequently denied Tomas motion for reconsideration. 6
The petitioners filed a petition for certiorari before the RTC-Makati City to
annul and set aside the MeTC-Makati City orders on the ground of grave abuse
of discretion. The petitioners anchored their petition on the rulings in United
States v. Canet7 and Ilusorio v. Bildner8 which ruled that venue and jurisdiction
should be in the place where the false document was presented.
The Assailed RTC Decision
In dismissing the petition for certiorari, the RTC-Makati City held:
[I]nsofar as the petitioners stance is concerned[,] the more recent case of [Sy
Tiong Shiou v. Sy] (GR Nos. 174168 & 179438, March 30, 2009) however,
reaffirms what has been the long standing view on the venue with respect to
perjury cases. In this particular case[,] the high court reiterated the rule that the
criminal action shall be instituted and tried in the court of the municipality or
territory where the offense was committed, or where any of its essential
ingredients occurred. It went on to declare that since the subject document[,]
the execution of which was the subject of the charge[,] was subscribed and
sworn to in Manila[,] then the court of the said territorial jurisdiction was the
proper venue of the criminal action[.]
xxxx
x x x Given the present state of jurisprudence on the matter, it is not amiss to
state that the city court of Makati City has jurisdiction to try and decide the case
for perjury inasmuch as the gist of the complaint itself which constitute[s] the
charge against the petitioner dwells solely on the act of subscribing to a false
certification. On the other hand, the charge against the accused in the case of
Ilusorio v. Bildner, et al., based on the complaint-affidavits therein[,] was not
simply the execution of the questioned documents but rather the introduction
of the false evidence through the subject documents before the court of Makati
City.9 (emphasis ours)
The RTC-Makati City ruled that the MeTC-Makati City did not commit grave
abuse of discretion since the order denying the Motion to Quash was based on
jurisprudence later than Ilusorio. The RTC-Makati City also observed that the
facts in Ilusorio are different from the facts of the present case. Lastly, the RTC-
Makati City ruled that the Rule 65 petition was improper since the petitioners
can later appeal the decision in the principal case. The RTC-Makati City
subsequently denied the petitioners motion for reconsideration.10
The Petition
The petitioners pray that we reverse the RTC-Makati City decision and quash
the Information for perjury against Tomas. The petitioners contend that the
Ilusorio ruling is more applicable to the present facts than our ruling in Sy Tiong
Shiou v. Sy Chim.11 They argued that the facts in Ilusorio showed that the filing
of the petitions in court containing the false statements was the essential
ingredient that consummated the perjury. In Sy Tiong, the perjurious
statements were made in a General Information Sheet (GIS) that was submitted
to the Securities and Exchange Commission (SEC).
Interestingly, Solicitor General Jose Anselmo I. Cadiz shared the petitioners
view. In his Manifestation and Motion in lieu of Comment (which we hereby
treat as the Comment to the petition), the Solicitor General also relied on
Ilusorio and opined that the lis mota in the crime of perjury is the deliberate or
intentional giving of false evidence in the court where the evidence is material.
The Solicitor General observed that the criminal intent to assert a falsehood
under oath only became manifest before the MeTC-Pasay City.
The Issue
The case presents to us the issue of what the proper venue of perjury under
Article 183 of the RPC should be Makati City, where the Certificate against
Forum Shopping was notarized, or Pasay City, where the Certification was
presented to the trial court.
The Courts Ruling
We deny the petition and hold that the MeTC-Makati City is the proper venue
and the proper court to take cognizance of the perjury case against the
petitioners.
Venue of Action and Criminal Jurisdiction
Venue is an essential element of jurisdiction in criminal cases. It determines not
only the place where the criminal action is to be instituted, but also the court
that has the jurisdiction to try and hear the case. The reason for this rule is two-
fold. First, the jurisdiction of trial courts is limited to well-defined territories
such that a trial court can only hear and try cases involving crimes committed
within its territorial jurisdiction.12 Second, laying the venue in the locus criminis
is grounded on the necessity and justice of having an accused on trial in the
municipality of province where witnesses and other facilities for his defense are
available.13
Unlike in civil cases, a finding of improper venue in criminal cases carries
jurisdictional consequences. In determining the venue where the criminal
action is to be instituted and the court which has jurisdiction over it, Section
15(a), Rule 110 of the 2000 Revised Rules of Criminal Procedure provides:
(a) Subject to existing laws, the criminal action shall be instituted and
tried in the court or municipality or territory where the offense was
committed or where any of its essential ingredients occurred.
[emphasis ours]
The above provision should be read in light of Section 10, Rule 110 of the 2000
Revised Rules of Criminal Procedure which states:
Place of commission of the offense. The complaint or information is sufficient
if it can be understood from its allegations that the offense was committed or
some of its essential ingredients occurred at some place within the jurisdiction
of the court, unless the particular place where it was committed constitutes an
essential element of the offense charged or is necessary for its identification.
Both provisions categorically place the venue and jurisdiction over criminal
cases not only in the court where the offense was committed, but also where
any of its essential ingredients took place. In other words, the venue of action
and of jurisdiction are deemed sufficiently alleged where the Information states
that the offense was committed or some of its essential ingredients occurred at
a place within the territorial jurisdiction of the court.
Information Charging Perjury
Section 5, Rule 7 of the 1997 Rules of Civil Procedure, as amended, contains the
requirement for a Certificate against Forum Shopping. The Certificate against
Forum Shopping can be made either by a statement under oath in the complaint
or initiatory pleading asserting a claim or relief; it may also be in a sworn
certification annexed to the complaint or initiatory pleading. In both instances,
the affiant is required to execute a statement under oath before a duly
commissioned notary public or any competent person authorized to administer
oath that: (a) he or she has not theretofore commenced any action or filed any
claim involving the same issues in any court, tribunal or quasi-judicial agency
and, to the best of his or her knowledge, no such other action or claim is
pending therein; (b) if there is such other pending action or claim, a complete
statement of the present status thereof; and (c) if he or she should thereafter
learn that the same or similar action or claim has been filed or is pending, he or
she shall report that fact within five days therefrom to the court wherein his or
her aforesaid complaint or initiatory pleading has been filed. In relation to the
crime of perjury, the material matter in a Certificate against Forum Shopping is
the truth of the required declarations which is designed to guard against
litigants pursuing simultaneous remedies in different fora.14
In this case, Tomas is charged with the crime of perjury under Article 183 of the
RPC for making a false Certificate against Forum Shopping. The elements of
perjury under Article 183 are:
(a) That the accused made a statement under oath or executed an
affidavit upon a material matter.
(b) That the statement or affidavit was made before a competent
officer, authorized to receive and administer oath.
(c) That in the statement or affidavit, the accused made a willful and
deliberate assertion of a falsehood.
(d) That the sworn statement or affidavit containing the falsity is
required by law or made for a legal purpose.15(emphasis ours)
Where the jurisdiction of the court is being assailed in a criminal case on the
ground of improper venue, the allegations in the complaint and information
must be examined together with Section 15(a), Rule 110 of the 2000 Revised
Rules of Criminal Procedure. On this basis, we find that the allegations in the
Information sufficiently support a finding that the crime of perjury was
committed by Tomas within the territorial jurisdiction of the MeTC-Makati City.
The first element of the crime of perjury, the execution of the subject Certificate
against Forum Shopping was alleged in the Information to have been committed
in Makati City. Likewise, the second and fourth elements, requiring the
Certificate against Forum Shopping to be under oath before a notary public,
were also sufficiently alleged in the Information to have been made in Makati
City:
That on or about the 13th day of March 2000 in the City of Makati, Metro
Manila, Philippines and within the jurisdiction of this Honorable Court, the
above-named accused, did then and there willfully, unlawfully and feloniously
make untruthful statements under oath upon a material matter before a
competent person authorized to administer oath which the law requires to wit:
said accused stated in the Verification/Certification/Affidavit x x x.16
We also find that the third element of willful and deliberate falsehood was also
sufficiently alleged to have been committed in Makati City, not Pasay City, as
indicated in the last portion of the Information:
[S]aid accused stated in the Verification/Certification/Affidavit of merit of a
complaint for sum of money with prayer for a writ of replevin docketed as
[Civil] Case No. 342-00 of the Metropolitan Trial Court[,] Pasay City, that the
Union Bank of the Philippines has not commenced any other action or
proceeding involving the same issues in another tribunal or agency, accused
knowing well that said material statement was false thereby making a willful
and deliberate assertion of falsehood.17 (underscoring ours)
Tomas deliberate and intentional assertion of falsehood was allegedly shown
when she made the false declarations in the Certificate against Forum Shopping
before a notary public in Makati City, despite her knowledge that the material
statements she subscribed and swore to were not true. Thus, Makati City is the
proper venue and MeTC-Makati City is the proper court to try the perjury case
against Tomas, pursuant to Section 15(a), Rule 110 of the 2000 Revised Rules of
Criminal Procedure as all the essential elements constituting the crime of
perjury were committed within the territorial jurisdiction of Makati City, not
Pasay City.
Referral to the En Banc
The present case was referred to the En Banc primarily to address the seeming
conflict between the division rulings of the Court in the Ilusorio case that is
cited as basis of this petition, and the Sy Tiong case that was the basis of the
assailed RTC-Makati City ruling.
The Cited Ilusorio and Sy Tiong Cases
The subject matter of the perjury charge in Ilusorio involved false statements
contained in verified petitions filed with the court for the issuance of a new
owners duplicate copies of certificates of title. The verified petitions containing
the false statements were subscribed and sworn to in Pasig City, but were filed
in Makati City and Tagaytay City. The question posed was: which court (Pasig
City, Makati City and/or Tagaytay City) had jurisdiction to try and hear the
perjury cases?
We ruled that the venues of the action were in Makati City and Tagaytay City,
the places where the verified petitions were filed. The Court reasoned out that it
was only upon filing that the intent to assert an alleged falsehood became
manifest and where the alleged untruthful statement found relevance or
materiality. We cited as jurisprudential authority the case of United States. v.
Caet18 which ruled:
It is immaterial where the affidavit was subscribed and sworn, so long as it
appears from the information that the defendant, by means of such affidavit,
"swore to" and knowingly submitted false evidence, material to a point at issue
in a judicial proceeding pending in the Court of First Instance of Iloilo Province.
The gist of the offense charged is not the making of the affidavit in Manila, but
the intentional giving of false evidence in the Court of First Instance of Iloilo
Province by means of such affidavit. [emphasis and underscoring deleted]
In Sy Tiong, the perjured statements were made in a GIS which was subscribed
and sworn to in Manila. We ruled that the proper venue for the perjury charges
was in Manila where the GIS was subscribed and sworn to. We held that the
perjury was consummated in Manila where the false statement was made. As
supporting jurisprudence, we cited the case of Villanueva v. Secretary of
Justice19 that, in turn, cited an American case entitled U.S. v. Norris.20 We ruled in
Villanueva that
Perjury is an obstruction of justice; its perpetration well may affect the dearest
concerns of the parties before a tribunal. Deliberate material falsification under
oath constitutes the crime of perjury, and the crime is complete when a witness'
statement has once been made.
The Crime of Perjury: A Background
To have a better appreciation of the issue facing the Court, a look at the
historical background of how the crime of perjury (specifically, Article 183 of
the RPC) evolved in our jurisdiction.
The RPC penalizes three forms of false testimonies. The first is false testimony
for and against the defendant in a criminal case (Articles 180 and 181, RPC); the
second is false testimony in a civil case (Article 182, RPC); and the third is false
testimony in other cases (Article 183, RPC). Based on the Information filed, the
present case involves the making of an untruthful statement in an affidavit on a
material matter.
These RPC provisions, however, are not really the bases of the rulings cited by
the parties in their respective arguments. The cited Ilusorio ruling, although
issued by this Court in 2008, harked back to the case of Caet which was
decided in 1915, i.e., before the present RPC took effect.21 Sy Tiong, on the other
hand, is a 2009 ruling that cited Villanueva, a 2005 case that in turn cited United
States v. Norris, a 1937 American case. Significantly, unlike Canet, Sy Tiong is
entirely based on rulings rendered after the present RPC took effect. 22
The perjurious act in Caet consisted of an information charging perjury
through the presentation in court of a motion accompanied by a false sworn
affidavit. At the time the Caet ruling was rendered, the prevailing law on
perjury and the rules on prosecution of criminal offenses were found in Section
3, Act No. 1697 of the Philippine Commission, and in Subsection 4, Section 6 of
General Order No. 5823 for the procedural aspect.
Section 3 of Act No. 1697 reads:
Sec. 3. Any person who, having taken oath before a competent tribunal, officer,
or person, in any case in which a law of the Philippine Islands authorizes an
oath to be administered, that he will testify, declare, depose, or certify truly, or
that any written testimony, declaration, disposition, or certificate by him
subscribed is true, willfully and contrary to such oath states or subscribes any
material matter which he does not believe to be true, is guilty of perjury, and
shall be punished by a fine of not more than two thousand pesos and by
imprisonment for not more than five years; and shall moreover, thereafter be
incapable of holding any public office or of giving testimony in any court of the
Philippine Islands until such time as the judgment against him is reversed.
This law was copied, with the necessary changes, from Sections 5392 24 and
539325 of the Revised Statutes of the United States.26 Act No. 1697 was intended
to make the mere execution of a false affidavit punishable in our jurisdiction. 27
In turn, Subsection 4, Section 6 of General Order No. 58 provided that the venue
shall be the court of the place where the crime was committed.
As applied and interpreted by the Court in Caet, perjury was committed by the
act of representing a false document in a judicial proceeding. 28 The venue of
action was held by the Court to be at the place where the false document was
presented since the presentation was the act that consummated the crime.
The annotation of Justices Aquino and Grio-Aquino in their textbook on the
RPC29 interestingly explains the history of the perjury provisions of the present
RPC and traces as well the linkage between Act No. 1697 and the present Code.
To quote these authors:30
Art. 180 was taken from art. 318 of the Old Penal Code and art. 154 of Del Pans
Proposed Correctional Code, while art. 181 was taken from art. 319 of the old
Penal Code and Art. 157 of Del Pans Proposed Correctional Code. Said arts. 318
and 319, together with art. 321 of the old Penal Code, were impliedly repealed
by Act 1697, the Perjury Law, passed on August 23, 1907, which in turn was
expressly repealed by the Administrative Code of 1916, Act 2657. In view of the
express repeal of Act 1697, arts. 318 and 321 of the old Penal Code were
deemed revived. However, Act 2718 expressly revived secs. 3 and 4 of the
Perjury Law. Art. 367 of the Revised Penal Code repealed Act Nos. 1697 and
2718.
It should be noted that perjury under Acts 1697 and 2718 includes false
testimony, whereas, under the Revised Penal Code, false testimony includes
perjury. Our law on false testimony is of Spanish origin, but our law on perjury
(art. 183 taken from sec. 3 of Act 1697) is derived from American statutes. The
provisions of the old Penal Code on false testimony embrace perjury committed
in court or in some contentious proceeding, while perjury as defined in Act
1697 includes the making of a false affidavit. The provisions of the Revised
Penal Code on false testimony "are more severe and strict than those of Act
1697" on perjury. [italics ours]
With this background, it can be appreciated that Article 183 of the RPC which
provides:
The penalty of arresto mayor in its maximum period to prision correccional in
its minimum period shall be imposed upon any person, who knowingly makes
untruthful statements and not being included in the provisions of the next
preceding articles, shall testify under oath, or make an affidavit, upon any
material matter before a competent person authorized to administer an oath in
cases in which the law so requires. [emphasis supplied; emphases ours]
in fact refers to either of two punishable acts (1) falsely testifying under oath
in a proceeding other than a criminal or civil case; and (2) making a false
affidavit before a person authorized to administer an oath on any material
matter where the law requires an oath.
As above discussed, Sy Tiong decided under Article 183 of the RPC
essentially involved perjured statements made in a GIS that was subscribed and
sworn to in Manila and submitted to the SEC in Mandaluyong City. Thus, the
case involved the making of an affidavit, not an actual testimony in a proceeding
that is neither criminal nor civil. From this perspective, the situs of the oath, i.e.,
the place where the oath was taken, is the place where the offense was
committed. By implication, the proper venue would have been the City of
Mandaluyong the site of the SEC had the charge involved an actual testimony
made before the SEC.
In contrast, Caet involved the presentation in court of a motion supported and
accompanied by an affidavit that contained a falsity. With Section 3 of Act No.
1697 as basis, the issue related to the submission of the affidavit in a judicial
proceeding. This came at a time when Act No. 1697 was the perjury law, and
made no distinction between judicial and other proceedings, and at the same
time separately penalized the making of false statements under oath (unlike the
present RPC which separately deals with false testimony in criminal, civil and
other proceedings, while at the same time also penalizing the making of false
affidavits). Understandably, the venue should be the place where the
submission was made to the court or the situs of the court; it could not have
been the place where the affidavit was sworn to simply because this was not the
offense charged in the Information.
The case of Ilusorio cited the Caet case as its authority, in a situation where the
sworn petitions filed in court for the issuance of duplicate certificates of title
(that were allegedly lost) were the cited sworn statements to support the
charge of perjury for the falsities stated in the sworn petitions. The Court ruled
that the proper venue should be the Cities of Makati and Tagaytay because it
was in the courts of these cities "where the intent to assert an alleged falsehood
became manifest and where the alleged untruthful statement finds relevance or
materiality in deciding the issue of whether new owners duplicate copies of the
[Certificate of Condominium Title] and [Transfer Certificates of Title] may
issue."31 To the Court, "whether the perjurious statements contained in the four
petitions were subscribed and sworn in Pasig is immaterial, the gist of the
offense of perjury being the intentional giving of false statement,"32citing Caet
as authority for its statement.
The statement in Ilusorio may have partly led to the present confusion on venue
because of its very categorical tenor in pointing to the considerations to be
made in the determination of venue; it leaves the impression that the place
where the oath was taken is not at all a material consideration, forgetting that
Article 183 of the RPC clearly speaks of two situations while Article 182 of the
RPC likewise applies to false testimony in civil cases.
The Ilusorio statement would have made perfect sense had the basis for the
charge been Article 182 of the RPC, on the assumption that the petition itself
constitutes a false testimony in a civil case. The Caet ruling would then have
been completely applicable as the sworn statement is used in a civil case,
although no such distinction was made under Caet because the applicable law
at the time (Act No. 1697) did not make any distinction.
If Article 183 of the RPC were to be used, as what in fact appears in the Ilusorio
ruling, then only that portion of the article, referring to the making of an
affidavit, would have been applicable as the other portion refers to false
testimony in other proceedings which a judicial petition for the issuance of a
new owners duplicate copy of a Certificate of Condominium Title is not because
it is a civil proceeding in court. As a perjury based on the making of a false
affidavit, what assumes materiality is the site where the oath was taken as this
is the place where the oath was made, in this case, Pasig City.
Procedurally, the rule on venue of criminal cases has been subject to various
changes from the time General Order No. 58 was replaced by Rules 106 to 122
of the Rules of Court on July 1, 1940. Section 14, Rule 106 of the Rules of Court
provided for the rule on venue of criminal actions and it expressly included, as
proper venue, the place where any one of the essential ingredients of the crime
took place.1wphi1 This change was followed by the passage of the 1964 Rules
of Criminal Procedure,33 the 1985 Rules of Criminal Procedure,34 and the 2000
Revised Rules of Criminal Procedure which all adopted the 1940 Rules of
Criminal Procedures expanded venue of criminal actions. Thus, the venue of
criminal cases is not only in the place where the offense was committed, but
also where any of its essential ingredients took place.
In the present case, the Certification against Forum Shopping was made integral
parts of two complaints for sum of money with prayer for a writ of replevin
against the respondent spouses Eddie Tamondong and Eliza B. Tamondong,
who, in turn, filed a complaint-affidavit against Tomas for violation of Article
183 of the RPC. As alleged in the Information that followed, the criminal act
charged was for the execution by Tomas of an affidavit that contained a falsity.
Under the circumstances, Article 183 of the RPC is indeed the applicable
provision; thus, jurisdiction and venue should be determined on the basis of this
article which penalizes one who "make[s] an affidavit, upon any material matter
before a competent person authorized to administer an oath in cases in which
the law so requires." The constitutive act of the offense is the making of an
affidavit; thus, the criminal act is consummated when the statement containing
a falsity is subscribed and sworn before a duly authorized person.
Based on these considerations, we hold that our ruling in Sy Tiong is more in
accord with Article 183 of the RPC and Section 15(a), Rule 110 of the 2000
Revised Rules of Criminal Procedure. To reiterate for the guidance of the Bar
and the Bench, the crime of perjury committed through the making of a false
affidavit under Article 183 of the RPC is committed at the time the affiant
subscribes and swears to his or her affidavit since it is at that time that all the
elements of the crime of perjury are executed. When the crime is committed
through false testimony under oath in a proceeding that is neither criminal nor
civil, venue is at the place where the testimony under oath is given. If in lieu of
or as supplement to the actual testimony made in a proceeding that is neither
criminal nor civil, a written sworn statement is submitted, venue may either be
at the place where the sworn statement is submitted or where the oath was
taken as the taking of the oath and the submission are both material ingredients
of the crime committed. In all cases, determination of venue shall be based on
the acts alleged in the Information to be constitutive of the crime committed.
WHEREFORE, premises considered, we hereby DENY the petition for lack of
merit. Costs against the petitioners.
SO ORDERED.
TOPIC: Rule 111 A. Civil Liability Arising from the Offense is
Deemed Instituted
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 192123 March 10, 2014
DR. FERNANDO P. SOLIDUM, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
BERSAMIN, J.:
This appeal is taken by a physician-anesthesiologist who has been pronounced
guilty of reckless imprudence resulting in serious physical injuries by the
Regional Trial Court (RTC) and the Court of Appeals (CA). He had been part of
the team of anesthesiologists during the surgical pull-through operation
conducted on a three-year old patient born with an imperforate anus.1
The antecedents are as follows:
Gerald Albert Gercayo (Gerald) was born on June 2, 1992 2 with an imperforate
anus. Two days after his birth, Gerald underwent colostomy, a surgical
procedure to bring one end of the large intestine out through the abdominal
wall,3 enabling him to excrete through a colostomy bag attached to the side of
his body.4
On May 17, 1995, Gerald, then three years old, was admitted at the Ospital ng
Maynila for a pull-through operation.5Dr. Leandro Resurreccion headed the
surgical team, and was assisted by Dr. Joselito Luceo, Dr. Donatella Valea and
Dr. Joseph Tibio. The anesthesiologists included Dr. Marichu Abella, Dr. Arnel
Razon and petitioner Dr. Fernando Solidum (Dr. Solidum).6 During the
operation, Gerald experienced bradycardia,7 and went into a coma.8His coma
lasted for two weeks,9 but he regained consciousness only after a month.10 He
could no longer see, hear or move.11
Agitated by her sons helpless and unexpected condition, Ma. Luz Gercayo (Luz)
lodged a complaint for reckless imprudence resulting in serious physical
injuries with the City Prosecutors Office of Manila against the attending
physicians.12
Upon a finding of probable cause, the City Prosecutors Office filed an
information solely against Dr. Solidum,13alleging:
That on or about May 17, 1995, in the City of Manila, Philippines, the said
accused, being then an anesthesiologist at the Ospital ng Maynila, Malate, this
City, and as such was tasked to administer the anesthesia on three-year old
baby boy GERALD ALBERT GERCAYO, represented by his mother, MA. LUZ
GERCAYO, the former having been born with an imperforate anus [no anal
opening] and was to undergo an operation for anal opening [pull through
operation], did then and there willfully, unlawfully and feloniously fail and
neglect to use the care and diligence as the best of his judgment would dictate
under said circumstance, by failing to monitor and regulate properly the levels
of anesthesia administered to said GERALD ALBERT GERCAYO and using 100%
halothane and other anesthetic medications, causing as a consequence of his
said carelessness and negligence, said GERALD ALBERT GERCAYO suffered a
cardiac arrest and consequently a defect called hypoxic encephalopathy
meaning insufficient oxygen supply in the brain, thereby rendering said
GERALD ALBERT GERCAYO incapable of moving his body, seeing, speaking or
hearing, to his damage and prejudice.
Contrary to law.14
The case was initially filed in the Metropolitan Trial Court of Manila, but was
transferred to the RTC pursuant to Section 5 of Republic Act No. 8369 (The
Family Courts Act of 1997),15 where it was docketed as Criminal Case No. 01-
190889.
Judgment of the RTC
On July 19, 2004, the RTC rendered its judgment finding Dr. Solidum guilty
beyond reasonable doubt of reckless imprudence resulting to serious physical
injuries,16 decreeing:
WHEREFORE, premises considered, the Court finds accused DR. FERNANDO P.
SOLIDUM GUILTY beyond reasonable doubt as principal of the crime charged
and is hereby sentenced to suffer the indeterminate penalty of TWO (2)
MONTHS and ONE (1) DAY of arresto mayor as minimum to ONE (1) YEAR, ONE
(1) MONTH and TEN (10) DAYS of prision correccional as maximum and to
indemnify, jointly and severally with the Ospital ng Maynila, Dr. Anita So and Dr.
Marichu Abella, private complainant Luz Gercayo, the amount of 500,000.00 as
moral damages and 100,000.00 as exemplary damages and to pay the costs.
Accordingly, the bond posted by the accused for his provisional liberty is hereby
CANCELLED.
SO ORDERED.17
Upon motion of Dr. Anita So and Dr. Marichu Abella to reconsider their solidary
liability,18 the RTC excluded them from solidary liability as to the damages,
modifying its decision as follows:
WHEREFORE, premises considered, the Court finds accused Dr. Fernando
Solidum, guilty beyond reasonable doubt as principal of the crime charged and
is hereby sentenced to suffer the indeterminate penalty of two (2) months and
one (1) day of arresto mayor as minimum to one (1) year, one (1) month and
ten (10) days of prision correccional as maximum and to indemnify jointly and
severally with Ospital ng Maynila, private complainant Luz Gercayo the amount
of 500,000.00 as moral damages and 100,000 as exemplary damages and to
pay the costs.
Accordingly, the bond posted by the accused for his provisional liberty is hereby
cancelled.19
Decision of the CA
On January 20, 2010, the CA affirmed the conviction of Dr.
Solidum,20 pertinently stating and ruling:
The case appears to be a textbook example of res ipsa loquitur.
xxxx
x x x [P]rior to the operation, the child was evaluated and found fit to undergo a
major operation. As noted by the OSG, the accused himself testified that pre-
operation tests were conducted to ensure that the child could withstand the
surgery. Except for his imperforate anus, the child was healthy. The tests and
other procedures failed to reveal that he was suffering from any known ailment
or disability that could turn into a significant risk. There was not a hint that the
nature of the operation itself was a causative factor in the events that finally led
to hypoxia.
In short, the lower court has been left with no reasonable hypothesis except to
attribute the accident to a failure in the proper administration of anesthesia, the
gravamen of the charge in this case. The High Court elucidates in Ramos vs.
Court of Appeals 321 SCRA 584
In cases where the res ipsa loquitur is applicable, the court is permitted to find a
physician negligent upon proper proof of injury to the patient, without the aid
of expert testimony, where the court from its fund of common knowledge can
determine the proper standard of care.
Where common knowledge and experience teach that a resulting injury would
not have occurred to the patient if due care had been exercised, an inference of
negligence may be drawn giving rise to an application of the doctrine of res ipsa
loquitur without medical evidence, which is ordinarily required to show not
only what occurred but how and why it occurred. When the doctrine is
appropriate, all that the patient must do is prove a nexus between the particular
act or omission complained of and the injury sustained while under the custody
and management of the defendant without need to produce expert medical
testimony to establish the standard of care. Resort to res ipsa loquitur is
allowed because there is no other way, under usual and ordinary conditions, by
which the patient can obtain redress for injury suffered by him.
The lower court has found that such a nexus exists between the act complained
of and the injury sustained, and in line with the hornbook rules on evidence, we
will afford the factual findings of a trial court the respect they deserve in the
absence of a showing of arbitrariness or disregard of material facts that might
affect the disposition of the case. People v. Paraiso 349 SCRA 335.
The res ipsa loquitur test has been known to be applied in criminal cases.
Although it creates a presumption of negligence, it need not offend due process,
as long as the accused is afforded the opportunity to go forward with his own
evidence and prove that he has no criminal intent. It is in this light not
inconsistent with the constitutional presumption of innocence of an accused.
IN VIEW OF THE FOREGOING, the modified decision of the lower court is
affirmed.
SO ORDERED.21
Dr. Solidum filed a motion for reconsideration, but the CA denied his motion on
May 7, 2010.22
Hence, this appeal.
Issues
Dr. Solidum avers that:
I.
THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING THE
DECISION OF THE LOWER COURT IN UPHOLDING THE PETITIONERS
CONVICTION FOR THE CRIME CHARGED BASED ON THE TRIAL
COURTS OPINION, AND NOT ON THE BASIS OF THE FACTS
ESTABLISHED DURING THE TRIAL. ALSO, THERE IS A CLEAR
MISAPPREHENSION OF FACTS WHICH IF CORRECTED, WILL RESULT
TO THE ACQUITTAL OF THE PETITIONER. FURTHER, THE
HONORABLE COURT ERRED IN AFFIRMING THE SAID DECISION OF
THE LOWER COURT, AS THIS BREACHES THE CRIMINAL LAW
PRINCIPLE THAT THE PROSECUTION MUST PROVE THE
ALLEGATIONS OF THE INFORMATION BEYOND REASONABLE DOUBT,
AND NOT ON THE BASIS OF ITS PRESUMPTIVE CONCLUSION.
II.
THE HONORABLE COURT OF APPEALS ERRED IN APPLYING THE
PRINCIPLE OF RES IPSA LOQUITOR (sic) WHEN THE DEFENSE WAS
ABLE TO PROVE THAT THERE IS NO NEGLIGENCE ON THE PART OF
THE PETITIONER, AND NO OVERDOSING IN THE APPLICATION OF
THE ANESTHETIC AGENT BECAUSE THERE WAS NO 100%
HALOTHANE ADMINISTERED TO THE CHILD, BUT ONLY ONE (1%)
PERCENT AND THE APPLICATION THEREOF, WAS REGULATED BY AN
ANESTHESIA MACHINE. THUS, THE APPLICATION OF THE PRINCIPLE
OF RES IPSA LOQUITOR (sic) CONTRADICTED THE ESTABLISHED
FACTS AND THE LAW APPLICABLE IN THE CASE.
III.
 THE AWARD OF MORAL DAMAGES AND EXEMPLARY DAMAGES IS
NOT JUSTIFIED THERE BEING NO NEGLIGENCE ON THE PART OF THE
PETITIONER. ASSUMING THAT THE CHILD IS ENTITLED TO
FINANCIAL CONSIDERATION, IT SHOULD BE ONLY AS A FINANCIAL
ASSISTANCE, BECAUSE THERE WAS NO NEGLIGENCE, AND NO
OVERDOSING OF ANESTHETIC AGENT AND AS SUCH, THE AWARD IS
SO EXCESSIVE, AND NO FACTUAL AND LEGAL BASIS.23
To simplify, the following are the issues for resolution, namely: (a) whether or
not the doctrine of res ipsa loquitur was applicable herein; and (b) whether or
not Dr. Solidum was liable for criminal negligence.
Ruling
The appeal is meritorious.
Applicability of the Doctrine of Res Ipsa Loquitur
Res ipsa loquitur is literally translated as "the thing or the transaction speaks
for itself." The doctrine res ipsa loquitur means that "where the thing which
causes injury is shown to be under the management of the defendant, and the
accident is such as in the ordinary course of things does not happen if those who
have the management use proper care, it affords reasonable evidence, in the
absence of an explanation by the defendant, that the accident arose from want
of care."24 It is simply "a recognition of the postulate that, as a matter of
common knowledge and experience, the very nature of certain types of
occurrences may justify an inference of negligence on the part of the person
who controls the instrumentality causing the injury in the absence of some
explanation by the defendant who is charged with negligence. It is grounded in
the superior logic of ordinary human experience and on the basis of such
experience or common knowledge, negligence may be deduced from the mere
occurrence of the accident itself.
Hence, res ipsa loquitur is applied in conjunction with the doctrine of common
knowledge."25
Jarcia, Jr. v. People26 has underscored that the doctrine is not a rule of
substantive law, but merely a mode of proof or a mere procedural convenience.
The doctrine, when applicable to the facts and circumstances of a given case, is
not meant to and does not dispense with the requirement of proof of culpable
negligence against the party charged. It merely determines and regulates what
shall be prima facie evidence thereof, and helps the plaintiff in proving a breach
of the duty. The doctrine can be invoked when and only when, under the
circumstances involved, direct evidence is absent and not readily available. 27
The applicability of the doctrine of res ipsa loquitur in medical negligence cases
was significantly and exhaustively explained in Ramos v. Court of
Appeals,28 where the Court said
Medical malpractice cases do not escape the application of this doctrine. Thus,
res ipsa loquitur has been applied when the circumstances attendant upon the
harm are themselves of such a character as to justify an inference of negligence
as the cause of that harm. The application of res ipsa loquitur in medical
negligence cases presents a question of law since it is a judicial function to
determine whether a certain set of circumstances does, as a matter of law,
permit a given inference.
Although generally, expert medical testimony is relied upon in malpractice suits
to prove that a physician has done a negligent act or that he has deviated from
the standard medical procedure, when the doctrine of res ipsa loquitur is
availed by the plaintiff, the need for expert medical testimony is dispensed with
because the injury itself provides the proof of negligence. The reason is that the
general rule on the necessity of expert testimony applies only to such matters
clearly within the domain of medical science, and not to matters that are within
the common knowledge of mankind which may be testified to by anyone
familiar with the facts. Ordinarily, only physicians and surgeons of skill and
experience are competent to testify as to whether a patient has been treated or
operated upon with a reasonable degree of skill and care. However, testimony
as to the statements and acts of physicians and surgeons, external appearances,
and manifest conditions which are observable by any one may be given by non-
expert witnesses. Hence, in cases where the res ipsa loquitur is applicable, the
court is permitted to find a physician negligent upon proper proof of injury to
the patient, without the aid of expert testimony, where the court from its fund of
common knowledge can determine the proper standard of care. Where common
knowledge and experience teach that a resulting injury would not have
occurred to the patient if due care had been exercised, an inference of
negligence may be drawn giving rise to an application of the doctrine of res ipsa
loquitur without medical evidence, which is ordinarily required to show not
only what occurred but how and why it occurred. When the doctrine is
appropriate, all that the patient must do is prove a nexus between the particular
act or omission complained of and the injury sustained while under the custody
and management of the defendant without need to produce expert medical
testimony to establish the standard of care. Resort to res ipsa loquitur is
allowed because there is no other way, under usual and ordinary conditions, by
which the patient can obtain redress for injury suffered by him.
Thus, courts of other jurisdictions have applied the doctrine in the following
situations: leaving of a foreign object in the body of the patient after an
operation, injuries sustained on a healthy part of the body which was not under,
or in the area, of treatment, removal of the wrong part of the body when
another part was intended, knocking out a tooth while a patients jaw was under
anesthetic for the removal of his tonsils, and loss of an eye while the patient
plaintiff was under the influence of anesthetic, during or following an operation
for appendicitis, among others.
Nevertheless, despite the fact that the scope of res ipsa loquitur has been
measurably enlarged, it does not automatically apply to all cases of medical
negligence as to mechanically shift the burden of proof to the defendant to show
that he is not guilty of the ascribed negligence. Res ipsa loquitur is not a rigid or
ordinary doctrine to be perfunctorily used but a rule to be cautiously applied,
depending upon the circumstances of each case. It is generally restricted to
situations in malpractice cases where a layman is able to say, as a matter of
common knowledge and observation, that the consequences of professional
care were not as such as would ordinarily have followed if due care had been
exercised. A distinction must be made between the failure to secure results, and
the occurrence of something more unusual and not ordinarily found if the
service or treatment rendered followed the usual procedure of those skilled in
that particular practice. It must be conceded that the doctrine of res ipsa
loquitur can have no application in a suit against a physician or surgeon which
involves the merits of a diagnosis or of a scientific treatment. The physician or
surgeon is not required at his peril to explain why any particular diagnosis was
not correct, or why any particular scientific treatment did not produce the
desired result. Thus, res ipsa loquitur is not available in a malpractice suit if the
only showing is that the desired result of an operation or treatment was not
accomplished. The real question, therefore, is whether or not in the process of
the operation any extraordinary incident or unusual event outside of the
routine performance occurred which is beyond the regular scope of customary
professional activity in such operations, which, if unexplained would
themselves reasonably speak to the average man as the negligent cause or
causes of the untoward consequence. If there was such extraneous intervention,
the doctrine of res ipsa loquitur may be utilized and the defendant is called
upon to explain the matter, by evidence of exculpation, if he could.
In order to allow resort to the doctrine, therefore, the following essential
requisites must first be satisfied, to wit: (1) the accident was of a kind that does
not ordinarily occur unless someone is negligent; (2) the instrumentality or
agency that caused the injury was under the exclusive control of the person
charged; and (3) the injury suffered must not have been due to any voluntary
action or contribution of the person injured.29
The Court considers the application here of the doctrine of res ipsa loquitur
inappropriate. Although it should be conceded without difficulty that the second
and third elements were present, considering that the anesthetic agent and the
instruments were exclusively within the control of Dr. Solidum, and that the
patient, being then unconscious during the operation, could not have been
guilty of contributory negligence, the first element was undeniably wanting. Luz
delivered Gerald to the care, custody and control of his physicians for a pull-
through operation. Except for the imperforate anus, Gerald was then of sound
body and mind at the time of his submission to the physicians. Yet, he
experienced bradycardia during the operation, causing loss of his senses and
rendering him immobile. Hypoxia, or the insufficiency of oxygen supply to the
brain that caused the slowing of the heart rate, scientifically termed as
bradycardia, would not ordinarily occur in the process of a pull-through
operation, or during the administration of anesthesia to the patient, but such
fact alone did not prove that the negligence of any of his attending physicians,
including the anesthesiologists, had caused the injury. In fact, the
anesthesiologists attending to him had sensed in the course of the operation
that the lack of oxygen could have been triggered by the vago-vagal reflex,
prompting them to administer atropine to the patient.30
This conclusion is not unprecedented. It was similarly reached in Swanson v.
Brigham,31 relevant portions of the decision therein being as follows:
On January 7, 1973, Dr. Brigham admitted 15-year-old Randall Swanson to a
hospital for the treatment of infectious mononucleosis. The patient's symptoms
had included a swollen throat and some breathing difficulty. Early in the
morning of January 9 the patient was restless, and at 1:30 a.m. Dr. Brigham
examined the patient. His inspection of the patient's air passage revealed that it
was in satisfactory condition. At 4:15 a.m. Dr. Brigham received a telephone call
from the hospital, advising him that the patient was having respiratory
difficulty. The doctor ordered that oxygen be administered and he prepared to
leave for the hospital. Ten minutes later, 4:25 a.m., the hospital called a second
time to advise the doctor that the patient was not responding. The doctor
ordered that a medicine be administered, and he departed for the hospital.
When he arrived, the physician who had been on call at the hospital had begun
attempts to revive the patient. Dr. Brigham joined him in the effort, but the
patient died.
The doctor who performed the autopsy concluded that the patient died between
4:25 a.m. and 4:30 a.m. of asphyxia, as a result of a sudden, acute closing of the
air passage. He also found that the air passage had been adequate to maintain
life up to 2 or 3 minutes prior to death. He did not know what caused the air
passage to suddenly close.
xxxx
It is a rare occurrence when someone admitted to a hospital for the treatment of
infectious mononucleosis dies of asphyxiation. But that is not sufficient to
invoke res ipsa loquitur. The fact that the injury rarely occurs does not in itself
prove that the injury was probably caused by someone's negligence. Mason v.
Ellsworth, 3 Wn. App. 298, 474 P.2d 909 (1970). Nor is a bad result by itself
enough to warrant the application of the doctrine. Nelson v. Murphy, 42 Wn.2d
737, 258 P.2d 472 (1953). See 2 S. Speiser, The Negligence Case Res Ipsa
Loquitur 24:10 (1972). The evidence presented is insufficient to establish the
first element necessary for application of res ipsa loquitur doctrine. The acute
closing of the patients air passage and his resultant asphyxiation took place
over a very short period of time. Under these circumstances it would not be
reasonable to infer that the physician was negligent. There was no palpably
negligent act. The common experience of mankind does not suggest that death
would not be expected without negligence. And there is no expert medical
testimony to create an inference that negligence caused the injury.
Negligence of Dr. Solidum
In view of the inapplicability of the doctrine of res ipsa loquitur, the Court next
determines whether the CA correctly affirmed the conviction of Dr. Solidum for
criminal negligence.
Negligence is defined as the failure to observe for the protection of the interests
of another person that degree of care, precaution, and vigilance that the
circumstances justly demand, whereby such other person suffers
injury.32Reckless imprudence, on the other hand, consists of voluntarily doing
or failing to do, without malice, an act from which material damage results by
reason of an inexcusable lack of precaution on the part of the person performing
or failing to perform such act.33
Dr. Solidums conviction by the RTC was primarily based on his failure to
monitor and properly regulate the level of anesthetic agent administered on
Gerald by overdosing at 100% halothane. In affirming the conviction, the CA
observed:
On the witness stand, Dr. Vertido made a significant turnaround. He affirmed
the findings and conclusions in his report except for an observation which, to all
intents and purposes, has become the storm center of this dispute. He wanted to
correct one piece of information regarding the dosage of the anesthetic agent
administered to the child. He declared that he made a mistake in reporting a
100% halothane and said that based on the records it should have been 100%
oxygen.
The records he was relying on, as he explains, are the following:
(a) the anesthesia record A portion of the chart in the record was
marked as Exhibit 1-A and 1-B to indicate the administration at
intervals of the anesthetic agent.
(b) the clinical abstract A portion of this record that reads as follows
was marked Exhibit 3A. 3B Approximately 1 hour and 45 minutes
through the operation, patient was noted to have bradycardia (CR = 70)
and ATSO4 0.2 mg was immediately administered. However, the
bradycardia persisted, the inhalational agent was shut off, and the
patient was ventilated with 100% oxygen and another dose of ATSO4
0.2 mg was given. However, the patient did not respond until no cardiac
rate can be auscultated and the surgeons were immediately told to stop
the operation. The patient was put on a supine position and CPR was
initiated. Patient was given 1 amp of epinephrine initially while
continuously doing cardiac massage still with no cardiac rate
appreciated; another ampule of epinephrine was given and after 45
 secs, patients vital signs returned to normal. The entire resuscitation
lasted approximately 3-5 mins. The surgeons were then told to proceed
to the closure and the childs vital signs throughout and until the end of
surgery were: BP = 110/70; CR = 116/min and RR = 20-22 cycles/min
(on assisted ventilation).
Dr. Vertido points to the crucial passage in the clinical abstract that the patient
was ventilated with 100% oxygen and another dose of ATSO4 when the
bradycardia persisted, but for one reason or another, he read it as 100%
halothane. He was asked to read the anesthesia record on the percentage of the
dosage indicated, but he could only sheepishly note I cant understand the
number. There are no clues in the clinical abstract on the quantity of the
anesthetic agent used. It only contains the information that the anesthetic plan
was to put the patient under general anesthesia using a nonrebreathing system
with halothane as the sole anesthetic agent and that 1 hour and 45 minutes
after the operation began, bradycardia occurred after which the inhalational
agent was shut off and the patient administered with 100% oxygen. It would be
apparent that the 100% oxygen that Dr. Vertido said should be read in lieu of
100% halothane was the pure oxygen introduced after something went amiss in
the operation and the halothane itself was reduced or shut off.
The key question remains what was the quantity of halothane used before
bradycardia set in?
The implication of Dr. Vertidos admission is that there was no overdose of the
anesthetic agent, and the accused Dr. Solidum stakes his liberty and reputation
on this conclusion. He made the assurance that he gave his patient the utmost
medical care, never leaving the operating room except for a few minutes to
answer the call of nature but leaving behind the other members of his team Drs.
Abella and Razon to monitor the operation. He insisted that he administered
only a point 1% not 100% halothane, receiving corroboration from Dr. Abella
whose initial MA in the record should be enough to show that she assisted in the
operation and was therefore conversant of the things that happened. She
revealed that they were using a machine that closely monitored the
concentration of the agent during the operation.
But most compelling is Dr. Solidums interpretation of the anesthesia record
itself, as he takes the bull by the horns, so to speak. In his affidavit, he says,
reading from the record, that the quantity of halothane used in the operation is
one percent (1%) delivered at time intervals of 15 minutes. He studiedly
mentions the concentration of halothane as reflected in the anesthesia record
(Annex D of the complaint-affidavit) is only one percent (1%) The numbers
indicated in 15 minute increments for halothane is an indication that only 1%
halothane is being delivered to the patient Gerard Gercayo for his entire
operation; The amount of halothane delivered in this case which is only one
percent cannot be summated because halothane is constantly being rapidly
eliminated by the body during the entire operation.
xxxx
In finding the accused guilty, despite these explanations, the RTC argued that
the volte-face of Dr. Vertido on the question of the dosage of the anesthetic used
on the child would not really validate the non-guilt of the anesthesiologist. Led
to agree that the halothane used was not 100% as initially believed, he was
nonetheless unaware of the implications of the change in his testimony. The
court observed that Dr. Vertido had described the condition of the child as
hypoxia which is deprivation of oxygen, a diagnosis supported by the results of
the CT Scan. All the symptoms attributed to a failing central nervous system
such as stupor, loss of consciousness, decrease in heart rate, loss of usual acuity
and abnormal motor function, are manifestations of this condition or syndrome.
But why would there be deprivation of oxygen if 100% oxygen to 1% halothane
was used? Ultimately, to the court, whether oxygen or halothane was the object
of mistake, the detrimental effects of the operation are incontestable, and they
can only be led to one conclusion if the application of anesthesia was really
closely monitored, the event could not have happened.34
The Prosecution did not prove the elements of reckless imprudence beyond
reasonable doubt because the circumstances cited by the CA were insufficient to
establish that Dr. Solidum had been guilty of inexcusable lack of precaution in
monitoring the administration of the anesthetic agent to Gerald. The Court aptly
explained in Cruz v. Court of Appeals35 that:
Whether or not a physician has committed an "inexcusable lack of precaution"
in the treatment of his patient is to be determined according to the standard of
care observed by other members of the profession in good standing under
similar circumstances bearing in mind the advanced state of the profession at
the time of treatment or the present state of medical science. In the recent case
of Leonila Garcia-Rueda v. Wilfred L. Pacasio, et. al., this Court stated that in
accepting a case, a doctor in effect represents that, having the needed training
and skill possessed by physicians and surgeons practicing in the same field, he
will employ such training, care and skill in the treatment of his patients. He
therefore has a duty to use at least the same level of care that any other
reasonably competent doctor would use to treat a condition under the same
circumstances. It is in this aspect of medical malpractice that expert testimony
is essential to establish not only the standard of care of the profession but also
that the physician's conduct in the treatment and care falls below such
standard. Further, inasmuch as the causes of the injuries involved in
malpractice actions are determinable only in the light of scientific knowledge, it
has been recognized that expert testimony is usually necessary to support the
conclusion as to causation.
xxxx
In litigations involving medical negligence, the plaintiff has the burden of
establishing appellant's negligence and for a reasonable conclusion of
negligence, there must be proof of breach of duty on the part of the surgeon as
well as a causal connection of such breach and the resulting death of his patient.
In Chan Lugay v. St Luke's Hospital, Inc., where the attending physician was
absolved of liability for the death of the complainants wife and newborn baby,
this Court held that:
"In order that there may be a recovery for an injury, however, it must be shown
that the injury for which recovery is sought must be the legitimate consequence
of the wrong done; the connection between the negligence and the injury must
be a direct and natural sequence of events, unbroken by intervening efficient
causes. In other words, the negligence must be the proximate cause of the
injury. For, negligence, no matter in what it consists, cannot create a right of
action unless it is the proximate cause of the injury complained of. And the
proximate cause of an injury is that cause, which, in natural and continuous
sequence, unbroken by any efficient intervening cause, produces the injury, and
without which the result would not have occurred."
An action upon medical negligence whether criminal, civil or administrative
calls for the plaintiff to prove by competent evidence each of the following four
elements, namely: (a) the duty owed by the physician to the patient, as created
by the physician-patient relationship, to act in accordance with the specific
norms or standards established by his profession; (b) the breach of the duty by
the physicians failing to act in accordance with the applicable standard of care;
(3) the causation, i.e., there must be a reasonably close and causal connection
between the negligent act or omission and the resulting injury; and (4) the
damages suffered by the patient.36
In the medical profession, specific norms or standards to protect the patient
against unreasonable risk, commonly referred to as standards of care, set the
duty of the physician to act in respect of the patient. Unfortunately, no clear
definition of the duty of a particular physician in a particular case exists.
Because most medical malpractice cases are highly technical, witnesses with
special medical qualifications must provide guidance by giving the knowledge
necessary to render a fair and just verdict. As a result, the standard of medical
care of a prudent physician must be determined from expert testimony in most
cases; and in the case of a specialist (like an anesthesiologist), the standard of
care by which the specialist is judged is the care and skill commonly possessed
and exercised by similar specialists under similar circumstances. The specialty
standard of care may be higher than that required of the general practitioner. 37
The standard of care is an objective standard by which the conduct of a
physician sued for negligence or malpractice may be measured, and it does not
depend, therefore, on any individual physicians own knowledge either. In
attempting to fix a standard by which a court may determine whether the
physician has properly performed the requisite duty toward the patient, expert
medical testimony from both plaintiff and defense experts is required. The
judge, as the trier of fact, ultimately determines the standard of care, after
listening to the testimony of all medical experts.38
Here, the Prosecution presented no witnesses with special medical
qualifications in anesthesia to provide guidance to the trial court on what
standard of care was applicable. It would consequently be truly difficult, if not
impossible, to determine whether the first three elements of a negligence and
malpractice action were attendant.
Although the Prosecution presented Dr. Benigno Sulit, Jr., an anesthesiologist
himself who served as the Chairman of the Committee on Ethics and
Malpractice of the Philippine Society of Anesthesiologists that investigated the
complaint against Dr. Solidum, his testimony mainly focused on how his
Committee had conducted the investigation.39 Even then, the report of his
Committee was favorable to Dr. Solidum,40 to wit:
Presented for review by this committee is the case of a 3 year old male who
underwent a pull-thru operation and was administered general anesthesia by a
team of anesthesia residents. The patient, at the time when the surgeons was
manipulating the recto-sigmoid and pulling it down in preparation for the
anastomosis, had bradycardia. The anesthesiologists, sensing that the cause
thereof was the triggering of the vago-vagal reflex, administered atropine to
block it but despite the administration of the drug in two doses, cardiac arrest
ensued. As the records show, prompt resuscitative measures were administered
and spontaneous cardiac function re-established in less than five (5) minutes
and that oxygen was continuously being administered throughout,
unfortunately, as later become manifest, patient suffered permanent
irreversible brain damage.
In view of the actuations of the anaesthesiologists and the administration of
anaesthesia, the committee find that the same were all in accordance with the
universally accepted standards of medical care and there is no evidence of any
fault or negligence on the part of the anaesthesiologists.
Dr. Antonio Vertido, a Senior Medico-Legal Officer of the National Bureau of
Investigation, was also presented as a Prosecution witness, but his testimony
concentrated on the results of the physical examination he had conducted on
Gerald, as borne out by the following portions of his direct examination, to wit:
FISCAL CABARON Doctor, what do you mean by General Anesthetic Agent?
WITNESS General Anesthetic Agent is a substance used in the conduction of
Anesthesia and in this case, halothane was used as a sole anesthetic agent.
xxxx
Q Now under paragraph two of page 1 of your report you mentioned that after
one hour and 45 minutes after the operation, the patient experienced a
bradycardia or slowing of heart rate, now as a doctor, would you be able to tell
this Honorable Court as to what cause of the slowing of heart rate as to Gerald
Gercayo?
WITNESS Well honestly sir, I cannot give you the reason why there was a
bradycardia of time because is some reason one way or another that might
caused bradycardia.
FISCAL CABARON What could be the possible reason?
A Well bradycardia can be caused by anesthetic agent itself and that is a
possibility, were talking about possibility here.
Q What other possibility do you have in mind, doctor?
A Well, because it was an operation, anything can happen within that situation.
FISCAL CABARON Now, this representation would like to ask you about the
slowing of heart rate, now what is the immediate cause of the slowing of the
heart rate of a person?
WITNESS Well, one of the more practical reason why there is slowing of the
heart rate is when you do a vagal reflex in the neck wherein the vagal receptors
are located at the lateral part of the neck, when you press that, you produce the
slowing of the heart rate that produce bradycardia.
Q I am pro[p]ounding to you another question doctor, what about the deficiency
in the supply of oxygen by the patient, would that also cause the slowing of the
heart rate?
A Well that is a possibility sir, I mean not as slowing of the heart rate, if there is
a hypoxia or there is a low oxygen level in the blood, the normal thing for the
heart is to pump or to do not a bradycardia but a to counter act the Hypoxia
that is being experienced by the patient
(sic).
xxxx
Q Now, you made mention also doctor that the use of general anesthesia using
100% halothane and other anesthetic medications probably were contributory
to the production of hypoxia.
A Yes, sir in general sir.41
On cross-examination, Dr. Vertido expounded more specifically on his
interpretation of the anesthesia record and the factors that could have caused
Gerald to experience bradycardia, viz:
ATTY. COMIA I noticed in, may I see your report Doctor, page 3, will you kindly
read to this Honorable court your last paragraph and if you will affirm that as if
it is correct?
A "The use of General Anesthesia, that is using 100% Halothane probably will be
contributory to the production of Hypoxia and - - - -"
ATTY COMIA And do you affirm the figure you mentioned in this Court Doctor?
WITNESS Based on the records, I know the - - -
Q 100%?
A 100% based on the records.
Q I will show you doctor a clinical record. I am a lawyer I am not a doctor but
will you kindly look at this and tell me where is 100%, the word "one hundred"
or 1-0-0, will you kindly look at this Doctor, this Xerox copy if you can show to
this Honorable Court and even to this representation the word "one hundred"
or 1-0-0 and then call me.
xxxx
ATTY. COMIA Doctor tell this Honorable Court where is that 100, 1-0-0 and if
there is, you just call me and even the attention of the Presiding Judge of this
Court. Okay, you read one by one.
WITNESS Well, are you only asking 100%, sir?
ATTY. COMIA Im asking you, just answer my question, did you see there 100%
and 100 figures, tell me, yes or no?
WITNESS Im trying to look at the 100%, there is no 100% there sir.
ATTY. COMIA Okay, that was good, so you Honor please, may we request also
temporarily, because this is just a xerox copy presented by the fiscal, that the
percentage here that the Halothane administered by Dr. Solidum to the patient
is 1% only so may we request that this portion, temporarily your Honor, we are
marking this anesthesia record as our Exhibit 1 and then this 1% Halothane also
be bracketed and the same be marked as our Exhibit "1-A".
xxxx
ATTY. COMIA Doctor, my attention was called also when you said that there are
so many factors that contributed to Hypoxia is that correct?
WITNESS Yes, sir.
Q I remember doctor, according to you there are so many factors that
contributed to what you call hypoxia and according to you, when this Gerald
suffered hypoxia, there are other factors that might lead to this Hypoxia at the
time of this operation is that correct?
WITNESS The possibility is there, sir.
Q And according to you, it might also be the result of such other, some or it
might be due to operations being conducted by the doctor at the time when the
operation is being done might also contribute to that hypoxia is that correct?
A That is a possibility also.
xxxx
ATTY. COMIA How will you classify now the operation conducted to this Gerald,
Doctor?
WITNESS Well, that is a major operation sir.
Q In other words, when you say major operation conducted to this Gerald, there
is a possibility that this Gerald might [be] exposed to some risk is that correct?
A That is a possibility sir.
Q And which according to you that Gerald suffered hypoxia is that correct?
A Yes, sir.
Q And that is one of the risk of that major operation is that correct?
A That is the risk sir.42
At the continuation of his cross-examination, Dr. Vertido maintained that
Geralds operation for his imperforate anus, considered a major operation, had
exposed him to the risk of suffering the same condition. 43 He then corrected his
earlier finding that 100% halothane had been administered on Gerald by saying
that it should be 100% oxygen.44
Dr. Solidum was criminally charged for "failing to monitor and regulate
properly the levels of anesthesia administered to said Gerald Albert Gercayo
and using 100% halothane and other anesthetic medications." 45However, the
foregoing circumstances, taken together, did not prove beyond reasonable
doubt that Dr. Solidum had been recklessly imprudent in administering the
anesthetic agent to Gerald. Indeed, Dr. Vertidos findings did not preclude the
probability that other factors related to Geralds major operation, which could
or could not necessarily be attributed to the administration of the anesthesia,
had caused the hypoxia and had then led Gerald to experience bradycardia. Dr.
Vertido revealingly concluded in his report, instead, that "although the
anesthesiologist followed the normal routine and precautionary procedures,
still hypoxia and its corresponding side effects did occur." 46
The existence of the probability about other factors causing the hypoxia has
engendered in the mind of the Court a reasonable doubt as to Dr. Solidums
guilt, and moves us to acquit him of the crime of reckless imprudence resulting
to serious physical injuries. "A reasonable doubt of guilt," according to United
States v. Youthsey:47
x x x is a doubt growing reasonably out of evidence or the lack of it. It is not a
captious doubt; not a doubt engendered merely by sympathy for the
unfortunate position of the defendant, or a dislike to accept the responsibility of
convicting a fellow man. If, having weighed the evidence on both sides, you
reach the conclusion that the defendant is guilty, to that degree of certainty as
would lead you to act on the faith of it in the most important and crucial affairs
of your life, you may properly convict him. Proof beyond reasonable doubt is
not proof to a mathematical demonstration. It is not proof beyond the
possibility of mistake.
We have to clarify that the acquittal of Dr. Solidum would not immediately
exempt him from civil liability.1wphi1 But we cannot now find and declare him
civilly liable because the circumstances that have been established here do not
present the factual and legal bases for validly doing so. His acquittal did not
derive only from reasonable doubt. There was really no firm and competent
showing how the injury to Gerard had been caused. That meant that the manner
of administration of the anesthesia by Dr. Solidum was not necessarily the cause
of the hypoxia that caused the bradycardia experienced by Gerard.
Consequently, to adjudge Dr. Solidum civilly liable would be to speculate on the
cause of the hypoxia. We are not allowed to do so, for civil liability must not rest
on speculation but on competent evidence.
Liability of Ospital ng Maynila
Although the result now reached has resolved the issue of civil liability, we have
to address the unusual decree of the RTC, as affirmed by the CA, of expressly
holding Ospital ng Maynila civilly liable jointly and severally with Dr. Solidum.
The decree was flawed in logic and in law.
In criminal prosecutions, the civil action for the recovery of civil liability that is
deemed instituted with the criminal action refers only to that arising from the
offense charged.48 It is puzzling, therefore, how the RTC and the CA could have
adjudged Ospital ng Maynila jointly and severally liable with Dr. Solidum for the
damages despite the obvious fact that Ospital ng Maynila, being an artificial
entity, had not been charged along with Dr. Solidum. The lower courts thereby
acted capriciously and whimsically, which rendered their judgment against
Ospital ng Maynila void as the product of grave abuse of discretion amounting
to lack of jurisdiction.
Not surprisingly, the flawed decree raises other material concerns that the RTC
and the CA overlooked. We deem it important, then, to express the following
observations for the instruction of the Bench and Bar.
For one, Ospital ng Maynila was not at all a party in the proceedings. Hence, its
fundamental right to be heard was not respected from the outset. The R TC and
the CA should have been alert to this fundamental defect. Verily, no person can
be prejudiced by a ruling rendered in an action or proceeding in which he was
not made a party. Such a rule would enforce the constitutional guarantee of due
process of law.
Moreover, Ospital ng Maynila could be held civilly liable only when subsidiary
liability would be properly enforceable pursuant to Article 103 of the Revised
Penal Code. But the subsidiary liability seems far-fetched here. The conditions
for subsidiary liability to attach to Ospital ng Maynila should first be complied
with. Firstly, pursuant to Article 103 of the Revised Penal Code, Ospital ng
Maynila must be shown to be a corporation "engaged in any kind of industry."
The term industry means any department or branch of art, occupation or
business, especially one that employs labor and capital, and is engaged in
industry.49 However, Ospital ng Maynila, being a public hospital, was not
engaged in industry conducted for profit but purely in charitable and
humanitarian work.50 Secondly, assuming that Ospital ng Maynila was engaged
in industry for profit, Dr. Solidum must be shown to be an employee of Ospital
ng Maynila acting in the discharge of his duties during the operation on Gerald.
Yet, he definitely was not such employee but a consultant of the hospital. And,
thirdly, assuming that civil liability was adjudged against Dr. Solidum as an
employee (which did not happen here), the execution against him was
unsatisfied due to his being insolvent.
WHEREFORE, the Court GRANTS the petition for review on certiorari;
REVERSES AND SETS ASIDE the decision promulgated on January 20, 2010;
ACQUITS Dr. Fernando P. Solidum of the crime of reckless imprudence resulting
to serious physical injuries; and MAKES no pronouncement on costs of suit.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 191240 July 30, 2014
CRISTINA B. CASTILLO, Petitioner,
vs.
PHILLIP R. SALVADOR, Respondent.
DECISION
PERALTA, J.:
Before us is a petition for review on certiorari which assails the Decision 1 dated
February 11, 2010 of the Court of Appeals (CA) in CA-G.R. CR No. 30151 with
respect only to the civil aspect of the case as respondent Phillip R. Salvador had
been acquitted of the crime of estafa. Respondent Phillip Salvador and his
brother Ramon Salvador were charged with estafa under Article 315, paragraph
2 (a) of the Revised Penal Code in an Information2 which reads:
That during the period from March 2001 up to May 2002, in the City of Las
Pias, Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, conspiring and confederating together and both of them
mutually helping and aiding one another, with intent to gain and by means of
false pretenses or fraudulent acts executed prior to or simultaneously with the
commission of the fraud, did then and there willfully, unlawfully and feloniously
defraud the complainant CRISTINA B. CASTILLO, in the amount of
US$100,000.00 in the following manner, to wit: Respondents convinced the
complainant to invest into the remittance business in the name of accused
PHILLIP R. SALVADOR in Hongkong, representing to her that they will
personally take charge of the operations and marketing of the said business,
assuring her with huge profits because of the popularity of accused PHILLIP R.
SALVADOR, knowing very well that the said manifestations/representations
and fraudulent manifestations were false and were intended only to exact
money from the Complainant, and by reason of the said false representations
made by both accused, the Complainant gave and entrusted to the accused the
amount of US$100,000.00 as seed money to start the operations of the business
and the said accused, once in the possession of the said amount of money,
misappropriated, misapplied and/or converted the same to their own personal
use and benefit, to the damage and prejudice of the Complainant in the
aforementioned amount of US$100,000.00.
CONTRARY TO LAW.3
Upon their arraignment, respondentand his brother Ramon pleaded not
guilty4 to the offense charged.
Trial on the merits thereafter ensued.
Petitioner Cristina B. Castillo testified that she is engaged in real estate business,
educational institution, boutique, and trading business.5 She met respondent
through a common friend in December 2000 and became close since then.
Respondent had told her that his friends, Jinggoy Estrada and Rudy Fernandez,
were engaged in the freight and remittance business and that Jinggoy even
brought him toHong Kong and Singapore to promote the former's
business.6 Petitioner eventually met respondents brother and manager, Ramon
Salvador, to whom she volunteered to financially help respondent in his bid for
the Vice-Mayoralty race in Mandaluyong.7 It was also in the same meeting that
they talked about the matter of engaging in a freight and remittance
business.8 Respondent enticed petitioner to go to Hong Kong to see for herself
the viability of such business and Ramon suggested to use respondents name to
attract the overseas contract workers.9
In March 2001, petitioner and her husband, together with respondent and a
certain Virgilio Calubaquib wentto Hong Kong and they witnessed respondents
popularity among the Filipino domestic helpers.10 In April 2001, the same
group, with Ramon this time, went to Bangkok where respondents popularity
was again shown among the overseas Filipinos. 11 In both instances, respondent
promoted their prospective business. In both trips, petitioner paid for all the
travelexpenses and even gave respondent US$10,000.00 as pocket money for
the Hong Kong trip and another US$10,000.00 for the Bangkok trip. 12 Her
accountant introduced her to a certain Roy Singun who is into the freight and
money remittance business.13 In August 2001, respondent initiated a trip to
Palau, to observe Singuns business thereat to which petitioner
acceded.14 Petitioner paid for the travel expenses and even gaverespondent
US$20,000.00.15 In October 2001, she and respondent had a training at Western
Union at First World Center in Makati City.16
As petitioner had deeply fallen in love with respondent and since she trusted
him very much as heeven acted as a father to her children when her annulment
was ongoing, she agreed to embark on the remittance business. In December
2001, she, accompanied by her mother, Zenaida G. Bondoc (Zenaida), and
Ramon, went to Hong Kong and had the Phillip Salvador Freight and Remittance
International Limited registered on December 27, 2001.17 A Memorandum of
Articles of Incorporation and a Certificate of Incorporation were issued. 18 They
also rented an office space in Tsimshatsui, Kowloon, Hong Kong which they
registered as their office address as a requirement for opening a business in
Hong Kong, thus, a Notification of Situation of Registered Office was also
issued.19 She agreed with respondent and Ramon that any profit derived from
the business would be equally divided among them and thatrespondent would
be in charge of promotion and marketing in Hong Kong,while Ramon would
take charge of the operations of business in the Philippines and she would be
financing the business.20
The business has not operated yet as petitioner was still raising the amount of
US$100,000.00 as capital for the actual operation.21 When petitioner already
had the money, she handed the same to respondent in May 2002 at her mothers
house in Las Pias City, which was witnessed by her disabled half-brother
Enrico B. Tan (Enrico).22 She also gave respondent 100,000.00 in cash to
begiven to Charlie Chau, who is a resident of Hong Kong, as payment for the
heart-shaped earrings she bought from him while she was there. Respondent
and Ramon went to Hong Kong in May 2002. However, the proposed business
never operated as respondent only stayed in Hong Kongfor three days. When
she asked respondent about the money and the business, the latter told her that
the money was deposited in a bank.23 However, upon further query, respondent
confessed that he used the money to pay for his other obligations. 24 Since then,
the US$100,000.00 was not returned at all.
On cross-examination, petitioner testified that she fell deeply in love with
respondent and was convinced thathe truly loved her and intended to marry
her once there would beno more legal impediment;25 that she helped in
financing respondents campaign in the May 2001 elections.26 As she loved
respondent so much, she gave him monthly allowances amounting to hundreds
of thousands of pesos because he had no work back then. 27 She filed the
annulment case against her husband on November 21, 2001 and respondent
promised her marriage.28 She claimed that respondent and Ramon lured her
with sweet words in going into the freight and remittance business, which never
operated despite the money she had given respondent.29 She raised the
US$100,000.00 by means of selling and pawning her pieces of diamond
jewelry.30
Petitioner admitted being blinded by her love for respondent which made her
follow all the advice given by him and his brother Ramon, i.e., to save money for
her and respondents future because after the annulment, they would get
married and to give the capital for the remittance business in cash so as not to
jeopardize her annulment case.31She did not ask for a receipt for the
US$100,000.00 she gave to respondent as it was for the operational expenses of
a business which will be for their future, as all they needed to do was to get
married.32 She further testified that after the US$100,000.00 was not returned,
she still deposited the amount of 500,000.00 in respondents UCPB bank
account33 and also to Ramons bank accounts.34 And while respondent was in
the United States in August 2003, she still gave him US$2,000.00as evidenced by
a Prudential Telegraphic Transfer Application35 dated August 27, 2003.
Petitioners mother, Zenaida, corroborated her daughters testimony that she
was with her and Ramon when they went to Hong Kong in December 2001 to
register the freight and remittance business.36 She heard Charlie Chau, her
daughter's friend, that a part of his office building will be used for the said
remittance business.37 Enrico Tan, also corroborated her sister's claim that she
handed the money to respondent in his presence.38
Respondent testified that he and petitioner became close friends and eventually
fell in love and had an affair.39 They traveled to Hong Kong and Bangkok where
petitioner saw how popular he was among the Filipino domestic
helpers,40 which led her to suggest a remittance business. Although hesitant, he
has friends with such business.41He denied that petitioner gave him
US$10,000.00 whenhe went to Hong Kong and Bangkok. 42 In July 2001, after he
came back from the United States, petitioner had asked him and his brother
Ramon for a meeting.43 During the meeting, petitioner brought up the money
remittance business, but Ramon told her that they should make a study of it
first.44 He was introduced to Roy Singun, owner of a money remittance business
in Pasay City.45 Upon the advise of Roy, respondent and petitioner, her husband
and Ramon went to Palau in August 2001.46 He denied receiving US$20,000.00
from petitioner but admitted that it was petitioner who paid for the plane
tickets.47 After their Palau trip, they went into training at Western Union at the
First World Center in Makati City.48 It was only in December 2001 that Ramon,
petitioner and her mother went to Hong Kong to register the business, while he
took care of petitioners children here.49 In May 2002, he and Ramon went back
to Hong Kong but deniedhaving received the amount of US$100,000.00 from
petitioner but then admitted receipt of the amount of 100,000.00 which
petitioner asked him to give to Charlie Chau as payment for the pieces of
diamond jewelry she got from him,50 which Chau had duly acknowledged.51 He
denied Enricos testimony that petitioner gave him the amount of
US$100,000.00 in his mothers house.52 He claimed that no remittance business
was started in Hong Kong as they had no license, equipment, personnel and
money to operate the same.53 Upon his return to the Philippines, petitioner
never asked him about the business as she never gave him such amount.54 In
October 2002, he intimated that he and petitioner even went to Hong Kong
again to buy some goods for the latters boutique.55 He admitted that he loved
petitioner and her children very much as there was a time when petitioners
finances were short, he gave her 600,000.00 for the enrollment of her children
in very expensive schools.56 It is also not true that he and Ramon initiated the
Hong Kong and Bangkok trips.57
Ramon testified that it was his brother respondent who introduced petitioner to
him.58 He learned of petitioners plan of a remittance business in July 2001 and
even told her that they should study it first.59 He was introduced to Roy Singun
who operates a remittancebusiness in Pasay and who suggested that their
group observehis remittance business in Palau. After their Palau trip, petitioner
decided to put up a similar business in Hong Kong and it was him who
suggested to use respondents name because of name recall.60 It was decided
thathe would manage the operation in Manila and respondent would be in
charge of promotion and marketing in Hong Kong, while petitioner would be in
charge of all the business finances.61 He admitted that he wentto Hong Kong
with petitioner and her mother to register said business and also to buy goods
for petitioners boutique.62 He said that it was also impossible for Chau to offer a
part of his office building for the remittance business because there was no
more space to accommodate it.63 He and respondent went to Hong Kong in May
2002 to examine the office recommended by Chau and the warehouse of Rudy
Fernandez thereatwho also offered to help.64 He then told Chau that the
remittance office should be in Central Park, Kowloon, because majority of the
Filipinos in Hong Kong live there.65 He concluded that it was impossible for the
business to operate immediately because they had no office, no personnel and
no license permit.66 He further claimed that petitioner never mentioned to him
about the US$100,000.00 she gave to respondent,67 and that he even traveled
again with petitioner to Bangkok in October 2002, and in August 2003. 68 He
denied Enricos allegation that he saw him at his mothers house as he only saw
Enrico for the first time in court.69
On April 21, 2006, the RTC rendered a Decision,70 the dispositive portion of
which reads: WHEREFORE, accused PHILLIP SALVADOR is found GUILTY
beyond reasonable doubt of the crime ofEstafa under Article 315, par. 2 (a) of
the Revised Penal Code and is hereby sentenced to suffer the indeterminate
sentence of four (4) years, two (2) months and one (1) day of prisyon (sic)
correctional (sic)maximum as minimum to twenty (20) years of reclusion
temporal maximumas maximum and to indemnify the private complainant in
the amount of ONE HUNDRED THOUSAND DOLLARS (US$100,000.00) or its
equivalent in Philippine currency. With respect to accused RAMON SALVADOR,
he is ACQUITTED for insufficiency of evidence. SO ORDERED.71
Respondent appealed his conviction to the CA. The parties filed their respective
pleadings, after which, the case was submitted for decision.
On February 11, 2010, the CA rendered its Decision reversing the decision of the
RTC, the decretal portion of which reads:
WHEREFORE, premises considered, the appealed decision of Branch 202 of the
RTC of Las Pias City, dated April 21, 2006, is hereby REVERSED AND SET
ASIDE and accused appellant PHILLIP R. SALVADOR is ACQUITTED of the crime
of Estafa.72
Petitioner files the instant petition onthe civil aspect of the case alleging that:
THE TRIAL COURT WAS CORRECT IN CONVICTING THE RESPONDENT SO
THAT EVEN IF THE COURT OF APPEALS DECIDED TO ACQUIT HIM IT SHOULD
HAVE AT LEAST RETAINED THE AWARD OF DAMAGES TO THE PETITIONER. 73
We find no merit in the petition.
To begin with, in Manantan v. CA,74 we discussed the consequences of an
acquittal on the civil liability of the accused as follows:
Our law recognizes two kinds of acquittal, with different effects on the civil
liability of the accused. First is an acquittal on the ground that the accused is not
the author of the actor omission complained of. This instance closes the door to
civil liability, for a person who has been found to be not the perpetrator of any
act or omission cannot and can never be held liable for such act oromission.
There being no delict, civil liability ex delictois out of the question, and the civil
action, if any, which may be instituted must be based on grounds other than the
delict complained of. This is the situation contemplated in Rule III of the Rules
of Court. The second instance is an acquittal based on reasonable doubt on the
guilt of the accused. In this case, even if the guilt of the accused has not been
satisfactorily established, he is not exempt from civil liability which may be
proved by preponderance of evidence only. This is the situation contemplated
in Article 29 of the Civil Code, where the civil action for damages is "for the
same act or omission." x x x.75
A reading of the CA decision would show that respondent was acquitted
because the prosecution failed to prove his guilt beyond reasonable doubt. Said
the CA:
The evidence for the prosecution being insufficient to prove beyond reasonable
doubt that the crime as charged had been committed by appellant, the general
presumption, "that a person is innocent of the crime or wrong, stands in his
favor. The prosecution failed to prove that all the elements of estafa are present
in this case as would overcome the presumption of innocence in favor of
appellant. For in fact, the prosecution's primary witness herself could not even
establish clearly and precisely how appellant committed the alleged fraud. She
failed to convince us that she was deceived through misrepresentations and/or
insidious actions, in venturing into a remittance business. Quite the contrary,
the obtaining circumstance inthis case indicate the weakness of her
submissions.76
Thus, since the acquittal is based on reasonable doubt, respondent is not
exempt from civil liability which may be proved by preponderance of evidence
only. In Encinas v. National Bookstore, Inc.,77 we explained the concept of
preponderance of evidence as follows:
x x x Preponderance of evidence is the weight, credit, and value of the aggregate
evidence on either side and is usually considered to be synonymous with the
term "greater weight of the evidence" or "greater weight of the credible
evidence." Preponderance of evidence is a phrase which, in the last analysis,
means probability of the truth. It is evidence which is more convincing to the
court as worthy of belief than that which is offered in opposition thereto.78
The issue of whether petitioner gave respondent the amount of US$100,000.00
is factual. While we are not a trier of facts, there are instances, however, when
we are called upon to re-examine the factual findings of the trial court and the
Court of Appeals and weigh, after considering the records of the case, which of
the conflicting findings is more in accord with law and justice.79 Such is the case
before us.
In discrediting petitioners allegation that she gave respondent US$100,000.00
in May 2002, the CA found that: (1) petitioner failed to show how she was able
to raise the money in such a short period of time and even gave conflicting
versions on the source of the same; (2) petitioner failed to require respondent
to sign a receipt so she could have a record of the transaction and offered no
plausible reason why the money was allegedly hand-carried toHong Kong; (3)
petitioners claim of trust as reason for not requiring respondent to sign a
receipt was inconsistent with the way she conducted her previous transactions
with him; and (4) petitioners behavior after the alleged fraud perpetrated
against her was inconsistent with the actuation ofsomeone who had been
swindled.
We find no reversible error committed by the CA in its findings.
Petitioner failed to prove on how she raised the money allegedly given to
respondent. She testified that from December 2001 to May 2002, she was
raising the amount of US$100,000.00 as the capital for the actual operation of
the Phillip Salvador Freight and Remittance International Limited in Hong
Kong,80 and that she was ableto raise the same in May 2002.81 She did so by
selling82 or pawning83 her pieces of diamond jewelry. However, there was no
documentary evidence showing those transactions within the period
mentioned. Upon further questioning on cross-examination on where she got
the money, she then said that she had plenty of dollars as she is a frequent
traveler to Hong Kong and Bangkok to shop for her boutique in Glorietta and
Star Mall.84 Such testimony contradicts her claim that she was still raising the
money for 5 months and that she was only able to formally raise the money in
May 2002.
There was also no receipt that indeed US$100,000.00 was given by petitioner to
respondent.1wphi1 Petitioner in her testimony, both in the direct and cross
examinations, said that the US$100,000.00 given to respondent was for the
actual expenses for setting up the office and the operation of the business in
Hong Kong.85 She claimed that she treated the freight and remittance business
like any of her businesses;86 that she, respondent, and the latters brother even
agreed to divide whatever profits they would have from the business;87 and that
giving US$100,000.00 to respondent was purely business to her.88 She also said
that she kept records of all her business, such that, if there are no records, there
are no funds entrusted89 . Since petitioner admitted that giving the money to
respondent was for business, there must be some records ofsuch transaction as
what she did in her other businesses.
In fact, it was not unusual for petitioner to ask respondent for some documents
evidencing the latter's receipt of money for the purpose of business as this was
done in her previous business dealings with respondent. She had asked
respondent to execute a real estate mortgage on his condominium unit 90 for the
5 million she loaned him in August 2001. Also, when petitioner gave
respondent an additional loan of 10 million in December 2001, for the latter to
redeem the title to his condominium unit from the bank, she had asked him to
sign an acknowledgment receipt for the total amount of 15 million he got from
her.91 She had done all these despite her testimony that she trusted respondent
from the day they met in December 2000 until the day he ran away from her in
August 2003.92
Petitioner insists that she did not ask for any acknowledgment receipt from
respondent, because the latter told her not to have traces that she was giving
money to him as it might jeopardize her then ongoing annulment proceedings.
However, petitioner's testimony would belie such claim of respondent being
cautious of the annulment proceedings. She declared that when she and her
husband separated, respondent stood as a father to her children. 93 Respondent
attended school programs of her children,94 and fetched them from school
whenever the driver was not around.95 In fact, at the time the annulment case
was already pending, petitioner registered the freight and remittance business
under respondents name and the local branch office of the business would be in
petitioner's condominium unit in Makati.96 Also, when petitioner went with her
mother and Ramon to Hong Kong to register the business, it was respondent
who tookcare of her children. She intimated that it was respondent who was
insistent in going to their house.
Worthy to mention is that petitioner deposited the amount of 500,000.00 to
respondent's account with United Coconut Planters Bank (UCPB) in July
2003.97 Also, when respondent was in New York in August 2003, petitioner sent
him the amount of US$2,000.00 by telegraphic transfer.98 Petitioner's act
ofdepositing money to respondent's account contradicted her claim that there
should be no traces that she was giving money to respondent during the
pendency of the annulment case.
Petitioner conceded that she could have either bought a manager's check in US LILY LIM, Petitioner,
dollars from the bank orsend the money by bank transfer, but she did not do so vs.
on the claim that there might be traces of the transaction. 99 However, the KOU CO PING a.k.a. CHARLIE CO, Respondent.
alleged US$100,000.00was supposed to be given to respondent because of the
freight and remittance business; thus, there is nothing wrong to have a record of x-----------------------x
the same, specially since respondent had to account for the valid expense she
incurred with the money.100 G.R. No. 179160

The testimony of Enrico, petitioner's brother, declaring that he was present KOU CO PING a.k.a. CHARLIE CO, Petitioner,
when petitioner gave respondent the US$100,000.00 did not help. Enrico vs.
testified that when petitioner filed the instant case in September 2004, another LILY LIM, Respondent.
case was also filed by petitioner against respondent and his brother Ramon in
the same City Prosecutor's office in Las Pias where Enrico had submitted his LEONARDO-DE CASTRO,*
affidavit. Enrico did not submit an affidavit in this case even when he allegedly
witnessed the giving of the money to respondent as petitioner told him that he PERLAS-BERNABE,**
could just testify for the other case. However, when the other case was
dismissed, it was then that petitioner told him to be a witness in this case. DECISION
Enrico should have been considered at the first opportunity if he indeed had
personal knowledge of the alleged giving of money to respondent. Thus, DEL CASTILLO, J.:
presenting Enrico as a witness only after the other case was dismissed would
create doubt as to the veracity of his testimony. Is it forum shopping for a private complainant to pursue a civil complaint for
specific performance and damages, while appealing the judgment on the civil
WHEREFORE, the petition for review is DENIED. The Decision dated February aspect of a criminal case for estafa?
11, 2010, of the Court of Appeals in CA-G.R. CR No. 30151, is hereby AFFIRMED.
Before the Court are consolidated Petitions for Review assailing the separate
SO ORDERED. Decisions of the Second and Seventeenth Divisions of the Court of Appeals (CA)
on the above issue.

Lily Lims (Lim) Petition for Review1 assails the October 20, 2005 Resolution2 of
TOPIC: Rule 111 B. Suspension of Civil Action the Second Division in CA-G.R. CV No. 85138, which ruled on the above issue in
the affirmative:
Republic of the Philippines
SUPREME COURT Due to the filing of the said civil complaint (Civil Case No. 5112396), Charlie Co
Manila filed the instant motion to dismiss [Lily Lims] appeal, alleging that in filing said
civil case, Lily Lim violated the rule against forum shopping as the elements
FIRST DIVISION of litis pendentia are present.

G.R. No. 175256 August 23, 2012 This Court agrees.3

 xxxx
IN VIEW OF THE FOREGOING, the appeal is DISMISSED.
SO ORDERED.4
On the other hand, Charlie Cos (Co) Petition for Review 5 assails the April 10,
2007 Decision6 of the Seventeenth Division in CA-G.R. SP No. 93395 for ruling on
the same issue in the negative:
We find no grave abuse of discretion committed by respondent judge. The
elements of litis pendentiaand forum-shopping were not met in this case.7
xxxx
WHEREFORE, in view of the foregoing, the instant petition is DENIED. This case
is REMANDED to the court of origin for further proceedings.
SO ORDERED.8
Factual Antecedents
In February 1999, FR Cement Corporation (FRCC), owner/operator of a cement
manufacturing plant, issued several withdrawal authorities9 for the account of
cement dealers and traders, Fil-Cement Center and Tigerbilt. These withdrawal
authorities state the number of bags that the dealer/trader paid for and can
withdraw from the plant. Each withdrawal authority contained a provision that
it is valid for six months from its date of issuance, unless revoked by FRCC
Marketing Department.
Fil-Cement Center and Tigerbilt, through their administrative manager, Gail
Borja (Borja), sold the withdrawal authorities covering 50,000 bags of cement
to Co for the amount of 3.15 million or 63.00 per bag.10 On February 15,
1999, Co sold these withdrawal authorities to Lim allegedly at the price of
64.00 per bag or a total of 3.2 million.11
Using the withdrawal authorities, Lim withdrew the cement bags from FRCC on
a staggered basis. She successfully withdrew 2,800 bags of cement, and sold
back some of the withdrawal authorities, covering 10,000 bags, to Co.
Sometime in April 1999, FRCC did not allow Lim to withdraw the remaining
37,200 bags covered by the withdrawal authorities. Lim clarified the matter
with Co and Borja, who explained that the plant implemented a price increase
and would only release the goods once Lim pays for the price difference or
agrees to receive a lesser quantity of cement. Lim objected and maintained that
the withdrawal authorities she bought were not subject to price fluctuations.
Lim sought legal recourse after her demands for Co to resolve the problem with
the plant or for the return of her money had failed.
The criminal case
An Information for Estafa through Misappropriation or Conversion was filed
against Co before Branch 154 of the Regional Trial Court (RTC) of Pasig City.
The accusatory portion thereof reads:
On or about between the months of February and April 1999, in San Juan, Metro
Manila and within the jurisdiction of this Honorable Court, the accused, with
intent to defraud Lily Lim, with grave abuse of confidence, with unfaithfulness,
received in trust from Lily Lim cash money in the amount of 2,380,800.00 as
payment for the 37,200 bags of cement, under obligation to deliver the 37,200
bags of cement to said Lily Lim, but far from complying with his obligation,
misappropriated, misapplied and converted to his own personal use and benefit
the said amount of 2,300,800.00 [sic] and despite demands, the accused failed
and refused to return said amount, to the damage and prejudice of Lily Lim in
the amount of 2,380,800.00.
Contrary to Law.12
The private complainant, Lily Lim, participated in the criminal proceedings to
prove her damages. She prayed for Co to return her money amounting to
2,380,800.00, foregone profits, and legal interest, and for an award of moral and
exemplary damages, as well as attorneys fees.13
On November 19, 2003, the RTC of Pasig City, Branch 154, rendered its
Order14 acquitting Co of the estafa charge for insufficiency of evidence. The
criminal courts Order reads:
The first and second elements of the crime of estafa [with abuse of confidence
under Article 315, paragraph 1(b)] for which the accused is being charged and
prosecuted were not established by the prosecutions evidence.
xxxx
In view of the absence of the essential requisites of the crime of estafa for which
the accused is being charged and prosecuted, as above discussed, the Court has
no alternative but to dismiss the case against the accused for insufficiency of
evidence.15
WHEREFORE, in view of the foregoing, the Demurrer to
Evidence is GRANTED, and the accused is hereby ACQUITTED of the crime of
estafa charged against him under the present information for insufficiency of
evidence.
Insofar as the civil liability of the accused is concerned, however, set this case
for the reception of his evidence on the matter on December 11, 2003 at 8:30
oclock [sic] in the morning.
SO ORDERED.16
After the trial on the civil aspect of the criminal case, the Pasig City RTC also
relieved Co of civil liability to Lim in its December 1, 2004 Order. 17 The
dispositive portion of the Order reads as follows:
WHEREFORE, premises considered, judgment is hereby rendered holding the
accused CHARLIE COnot civilly liable to the private complainant Lily Lim.
SO ORDERED.18
Lim sought a reconsideration of the above Order, arguing that she has
presented preponderant evidence that Co committed estafa against her. 19
The trial court denied the motion in its Order20 dated February 21, 2005.
On March 14, 2005, Lim filed her notice of appeal 21 on the civil aspect of the
criminal case. Her appeal was docketed as CA-G.R. CV No. 85138 and raffled to
the Second Division of the CA.
The civil action for specific performance
On April 19, 2005, Lim filed a complaint for specific performance and damages
before Branch 21 of the RTC of Manila. The defendants in the civil case were Co
and all other parties to the withdrawal authorities, Tigerbilt, Fil-Cement Center,
FRCC, Southeast Asia Cement, and La Farge Corporation. The complaint,
docketed as Civil Case No. 05-112396, asserted two causes of action: breach of
contract and abuse of rights. Her allegations read:
ALLEGATIONS COMMON
TO ALL CAUSES OF ACTION
xxxx
23. Charlie Co obligated himself to deliver to Lily Lim 50,000 bags of cement of
64.00 per bag on an x-plant basis within 3 months from the date of their
transaction, i.e. February 15, 1999. Pursuant to said agreement, Lily Lim paid
Charlie Co 3.2 Million while Charlie Co delivered to Lily Lim FR Cement
Withdrawal Authorities representing 50,000 bags of cement.
24. The withdrawal authorities issued by FR Cement Corp. allowed the assignee
or holder thereof to withdraw within a six-month period from date a certain
amount of cement indicated therein. The Withdrawal Authorities given to Lily
Lim were dated either 3 February 1999 or 23 February 1999. The Withdrawal
Authorities were first issued to Tigerbilt and Fil-Cement Center which in turn
assigned them to Charlie Co. Charlie Co then assigned the Withdrawal
Authorities to Lily Lim on February 15, 1999. Through these series of
assignments, Lily Lim acquired all the rights (rights to withdraw cement)
granted in said Withdrawal Authorities.
25. That these Withdrawal Authorities are valid is established by the fact that
FR Cement earlier allowed Lily Lim to withdraw 2,800 bags of cement on the
basis thereof.
26. However, sometime 19 April 1999 (within the three (3)-month period
agreed upon by Charlie Co and Lily Lim and certainly within the six (6)-month
period indicated in the Withdrawal Authorities issued by FR Cement Corp.), Lily
Lim attempted but failed to withdraw the remaining bags of cement on account
of FR Cements unjustified refusal to honor the Withdrawal Authorities. x x x
xxxx
FIRST CAUSE OF ACTION:
BREACH OF CONTRACT
30. Charlie Co committed and is therefore liable to deliver to Lily Lim 37,200
bags of cement. If he cannot, then he must pay her the current fair market value
thereof.
31. FR Cement Corporation is also liable to deliver to Lily Lim the amount of
cement as indicated in the Withdrawal Authorities it issued. xxx FR Cement
Corporation has no right to impose price adjustments as a qualification for
honoring the Withdrawal Authorities.
32. Fil-Cement Center, Tigerbilt and Gail Borja as the original holders/ assignees
of the Withdrawal Authorities repeatedly assured Lily Lim that the same were
valid and would be honored. They are liable to make good on their assurances.
SECOND CAUSE OF ACTION:
ABUSE OF RIGHTS AND UNJUST ENRICHMENT
33. Charlie Cos acts of falsely representing to Lily Lim that she may be able to
withdraw the cement from FR Cement Corp. caused Lily Lim to incur expenses
and losses. Such act was made without justice, without giving Lily Lim what is
due her and without observing honesty and good faith, all violative of the law,
more specifically Articles 19 and 20 of the Civil Code. Such willful act was also
made by Charlie Co in a manner contrary to morals, good customs or public
policy, in violation of Article 21 of the Civil Code.
34. FR Cement Corporations unjust refusal to honor the Withdrawal Authorities
they issued also caused damage to Lily Lim. Further, FR Cement Corporations
act of withholding the 37,200 bags of cement despite earning income therefor
constitutes as an unjust enrichment because FR Cement Corporation acquired
income through an act or performance by another or any other means at the
expense of another without just or legal ground in violation of Article 22 of the
Civil Code.
35. Fil-Cement Center, Tigerbilt and Gail Borjas false assurances that Lily Lim
would be able to withdraw the remaining 37,200 bags of cement caused Lily
Lim to incur expenses and losses. x x x Moreover, Fil-Cement Center admitted
receiving payment for said amount of cement, thus they are deemed to have
come into possession of money at the expense of Lily Lim without just or legal
ground, in violation of Article 22 of the Civil Code.
THIRD CAUSE OF ACTION:
MORAL AND EXEMPLARY DAMAGES and
ATTORNEYS FEES AND COSTS OF SUIT22
Lim prayed for Co to honor his contractual commitments either by delivering
the 37,200 bags of cement, making arrangements with FRCC to allow Lim to
withdraw the cement, or to pay for their value. She likewise asked that the
defendants be held solidarily liable to her for the damages she incurred in her
failed attempts to withdraw the cement and for the damages they inflicted on
her as a result of their abuse of their rights.23
Motions to dismiss both actions
In reaction to the filing of the civil complaint for specific performance and
damages, Co filed motions to dismiss the said civil case24 and Lims appeal in the
civil aspect of the estafa case or CA-G.R. CV No. 85138.25 He maintained that the
two actions raise the same issue, which is Cos liability to Lim for her inability to
withdraw the bags of cement,26 and should be dismissed on the ground of lis
pendens and forum shopping.
Ruling of the Court of Appeals Second Division in CA-G.R CV No. 85138
The appellate court (Second Division) favorably resolved Cos motion and
dismissed Lims appeal from the civil aspect of the estafa case. In its Resolution
dated October 20, 2005, the CA Second Division held that the parties, causes of
action, and reliefs prayed for in Lims appeal and in her civil complaint are
identical. Both actions seek the same relief, which is the payment of the value of
the 37,200 bags of cement.27 Thus, the CA Second Division dismissed Lims
appeal for forum shopping.28 The CA denied29 Lims motion for
reconsideration.30
Lim filed the instant petition for review, which was docketed as G.R. No.
175256.
Ruling of the Manila Regional Trial Court in Civil Case No. 05-112396
Meanwhile, the Manila RTC denied Cos Motion to Dismiss in an Order 31 dated
December 6, 2005. The Manila RTC held that there was no forum shopping
because the causes of action invoked in the two cases are different. It observed
that the civil complaint before it is based on an obligation arising from contract
and quasi-delict, whereas the civil liability involved in the appeal of the criminal
case arose from a felony.
Co filed a petition for certiorari,32 docketed as CA-G.R. SP No. 93395, before the
appellate court. He prayed for the nullification of the Manila RTCs Order in Civil
Case No. 05-112396 for having been issued with grave abuse of discretion.33
Ruling of the Court of Appeals Seventeenth Division in CA-G.R. SP No. 93395
The CA Seventeenth Division denied Cos petition and remanded the civil
complaint to the trial court for further proceedings. The CA Seventeenth
Division agreed with the Manila RTC that the elements of litis pendentia and
forum shopping are not met in the two proceedings because they do not share
the same cause of action.34
The CA denied35 Cos motion for reconsideration.36
Co filed the instant Petition for Review, which was docketed as G.R. No. 179160.
Upon Cos motion,37 the Court resolved to consolidate the two petitions.38
Kou Co Pings arguments
Co maintains that Lim is guilty of forum shopping because she is asserting only
one cause of action in CA-G.R. CV No. 85138 (the appeal from the civil aspect of
Criminal Case No. 116377) and in Civil Case No. 05-112396, which is for Cos
violation of her right to receive 37,200 bags of cement. Likewise, the reliefs
sought in both cases are the same, that is, for Co to deliver the 37,200 bags of
cement or its value to Lim. That Lim utilized different methods of presenting her
case a criminal action for estafa and a civil complaint for specific performance
and damages should not detract from the fact that she is attempting to litigate
the same cause of action twice.39
Co makes light of the distinction between civil liability ex contractu and ex
delicto. According to him, granting that the two civil liabilities are independent
of each other, nevertheless, the two cases arising from them would have to be
decided using the same evidence and going over the same set of facts. Thus, any
judgment rendered in one of these cases will constitute res judicata on the
other.40
In G.R. No. 179160, Co prays for the annulment of the CA Decision and
Resolution in CA-G.R. SP No. 93395, for a declaration that Lim is guilty of forum
shopping, and for the dismissal of Civil Case No. 05-112396.41
In G.R. No. 175256, Co prays for the affirmation of the CA Decision in CA-G.R. CV
No. 85138 (which dismissed Lims appeal from the trial courts decision in
Criminal Case No. 116377).42
Lily Lims arguments
Lim admits that the two proceedings involve substantially the same set of facts
because they arose from only one transaction.43 She is quick to add, however,
that a single act or omission does not always make a single cause of action. 44 It
can possibly give rise to two separate civil liabilities on the part of the offender
(1) ex delicto or civil liability arising from crimes, and (2) independent civil
liabilities or those arising from contracts or intentional torts. The only caveat
provided in Article 2177 of the Civil Code is that the offended party cannot
recover damages twice for the same act or omission.45 Because the law allows
her two independent causes of action, Lim contends that it is not forum
shopping to pursue them.46
She then explains the separate and distinct causes of action involved in the two
cases. Her cause of action in CA-G.R CV No. 85138 is based on the crime of
estafa. Co violated Lims right to be protected against swindling. He represented
to Lim that she can withdraw 37,200 bags of cement using the authorities she
bought from him. This is a fraudulent representation because Co knew, at the
time that they entered into the contract, that he could not deliver what he
promised.47 On the other hand, Lims cause of action in Civil Case No. 05-112396
is based on contract. Co violated Lims rights as a buyer in a contract of sale. Co
received payment for the 37,200 bags of cement but did not deliver the goods
that were the subject of the sale.48
In G.R. No. 179160, Lim prays for the denial of Cos petition. 49 In G.R. No.
175256, she prays for the reversal of the CA Decision in CA-G.R. CV No. 85138,
for a declaration that she is not guilty of forum shopping, and for the
reinstatement of her appeal in Criminal Case No. 116377 to the CA. 50
Issue
Did Lim commit forum shopping in filing the civil case for specific performance
and damages during the pendency of her appeal on the civil aspect of the
criminal case for estafa?
Our Ruling
A single act or omission that causes damage to an offended party may give rise
to two separate civil liabilities on the part of the offender 51 (1) civil liability ex
delicto, that is, civil liability arising from the criminal offense under Article 100
of the Revised Penal Code,-52 and (2) independent civil liability, that is, civil
liability that may be pursued independently of the criminal proceedings. The
independent civil liability may be based on "an obligation not arising from the
act or omission complained of as a felony," as provided in Article 31 of the Civil
Code (such as for breach of contract or for tort53 ). It may also be based on an act
or omission that may constitute felony but, nevertheless, treated independently
from the criminal action by specific provision of Article 33 of the Civil Code ("in
cases of defamation, fraud and physical injuries").
The civil liability arising from the offense or ex delicto is based on the acts or
omissions that constitute the criminal offense; hence, its trial is inherently
intertwined with the criminal action. For this reason, the civil liability ex delicto
is impliedly instituted with the criminal offense.54 If the action for the civil
liability ex delicto is instituted prior to or subsequent to the filing of the
criminal action, its proceedings are suspended until the final outcome of the
criminal action.55 The civil liability based on delict is extinguished when the
court hearing the criminal action declares that "the act or omission from which
the civil liability may arise did not exist."56
On the other hand, the independent civil liabilities are separate from the
criminal action and may be pursued independently, as provided in Articles 31
and 33 of the Civil Code, which state that:
ART. 31. When the civil action is based on an obligation not arising from the act
or omission complained of as a felony, such civil action may proceed
independently of the criminal proceedings and regardless of the result of the
latter. (Emphasis supplied.)
ART. 33. In cases of defamation, fraud, and physical injuries a civil action for
damages, entirely separate and distinct from the criminal action, may be
brought by the injured party. Such civil action shall proceed independently of
the criminal prosecution, and shall require only a preponderance of evidence.
(Emphasis supplied.)
Because of the distinct and independent nature of the two kinds of civil
liabilities, jurisprudence holds that the offended party may pursue the two
types of civil liabilities simultaneously or cumulatively, without offending the
rules on forum shopping, litis pendentia, or res judicata.57 As explained in Cancio,
Jr. v. Isip:58
One of the elements of res judicata is identity of causes of action. In the instant
case, it must be stressed that the action filed by petitioner is an independent
civil action, which remains separate and distinct from any criminal prosecution
based on the same act. Not being deemed instituted in the criminal action based
on culpa criminal, a ruling on the culpability of the offender will have no bearing
on said independent civil action based on an entirely different cause of action,
i.e., culpa contractual.
In the same vein, the filing of the collection case after the dismissal of the estafa
cases against the offender did not amount to forum-shopping. The essence of
forum shopping is the filing of multiple suits involving the same parties for the
same cause of action, either simultaneously or successively, to secure a
favorable judgment. Although the cases filed by [the offended party] arose from
the same act or omission of [the offender], they are, however, based on different
causes of action. The criminal cases for estafa are based on culpa criminal while
the civil action for collection is anchored on culpa contractual. Moreover, there
can be no forum-shopping in the instant case because the law expressly allows
the filing of a separate civil action which can proceed independently of the
criminal action.59
Since civil liabilities arising from felonies and those arising from other sources
of obligations are authorized by law to proceed independently of each other, the
resolution of the present issue hinges on whether the two cases herein involve
different kinds of civil obligations such that they can proceed independently of
each other. The answer is in the affirmative.
The first action is clearly a civil action ex delicto, it having been instituted
together with the criminal action.60
WHEREFORE, premises considered, Lily Lims Petition in G.R. No. 175256
is GRANTED. The assailed October 20, 2005 Resolution of the Second Division
of the Court of Appeals in CA-G.R. CV No. 85138 is REVERSED and SET ASIDE.
Lily Lims appeal in CA-G.R. CV No. 85138 is ordered REINSTATED and the
Court of Appeals is DIRECTED to RESOLVE the same with DELIBERATE
DISPATCH.

On the other hand, the second action, judging by the allegations contained in the Charlie Cos Petition G.R. No. 179160 is DENIED. The assailed April 10, 2007
complaint,61 is a civil action arising from a contractual obligation and for Decision of the Seventeenth Division of the Court of Appeals in CA-G.R. SP No.
tortious conduct (abuse of rights). In her civil complaint, Lim basically alleges 93395 is AFFIRMED in toto.
that she entered into a sale contract with Co under the following terms: that she
bought 37,200 bags of cement at the rate of 64.00 per bag from Co; that, after SO ORDERED.
full payment, Co delivered to her the withdrawal authorities issued by FRCC
corresponding to these bags of cement; that these withdrawal authorities will
be honored by FRCC for six months from the dates written thereon. Lim then
maintains that the defendants breached their contractual obligations to her TOPIC: Rule 111 C. Independent Civil Action
under the sale contract and under the withdrawal authorities; that Co and his
co-defendants wanted her to pay more for each bag of cement, contrary to their
Republic of the Philippines
agreement to fix the price at 64.00 per bag and to the wording of the
SUPREME COURT
withdrawal authorities; that FRCC did not honor the terms of the withdrawal
Manila
authorities it issued; and that Co did not comply with his obligation under the
sale contract to deliver the 37,200 bags of cement to Lim. From the foregoing
THIRD DIVISION
allegations, it is evident that Lim seeks to enforce the defendants contractual
obligations, given that she has already performed her obligations. She prays that
G.R. No. 145391 August 26, 2002
the defendants either honor their part of the contract or pay for the damages
that their breach has caused her.
AVELINO CASUPANAN and ROBERTO CAPITULO, petitioners,
vs.
Lim also includes allegations that the actions of the defendants were committed
MARIO LLAVORE LAROYA, respondent.
in such manner as to cause damage to Lim without regard for morals, good
customs and public policy. These allegations, if proven, would constitute
CARPIO, J.:
tortious conduct (abuse of rights under the Human Relations provisions of the
Civil Code).
The Case
Thus, Civil Case No. 05-112396 involves only the obligations arising from
This is a petition for review on certiorari to set aside the Resolution1 dated
contract and from tort, whereas the appeal in the estafa case involves only the
December 28, 1999 dismissing the petition for certiorari and the
civil obligations of Co arising from the offense charged. They present different
Resolution2 dated August 24, 2000 denying the motion for reconsideration, both
causes of action, which under the law, are considered "separate, distinct, and
issued by the Regional Trial Court of Capas, Tarlac, Branch 66, in Special Civil
independent"62 from each other. Both cases can proceed to their final
Action No. 17-C (99).
adjudication, subject to the prohibition on double recovery under Article 2177
of the Civil Code.63
The Facts
Two vehicles, one driven by respondent Mario Llavore Laroya ("Laroya" for
brevity) and the other owned by petitioner Roberto Capitulo ("Capitulo" for
brevity) and driven by petitioner Avelino Casupanan ("Casupanan" for brevity),
figured in an accident. As a result, two cases were filed with the Municipal
Circuit Trial Court ("MCTC" for brevity) of Capas, Tarlac. Laroya filed a criminal
case against Casupanan for reckless imprudence resulting in damage to
property, docketed as Criminal Case No. 002-99. On the other hand, Casupanan
and Capitulo filed a civil case against Laroya for quasi-delict, docketed as Civil
Case No. 2089.
When the civil case was filed, the criminal case was then at its preliminary
investigation stage. Laroya, defendant in the civil case, filed a motion to dismiss
the civil case on the ground of forum-shopping considering the pendency of the
criminal case. The MCTC granted the motion in the Order of March 26, 1999 and
dismissed the civil case.
On Motion for Reconsideration, Casupanan and Capitulo insisted that the civil
case is a separate civil action which can proceed independently of the criminal
case. The MCTC denied the motion for reconsideration in the Order of May 7,
1999. Casupanan and Capitulo filed a petition for certiorari under Rule 65
before the Regional Trial Court ("Capas RTC" for brevity) of Capas, Tarlac,
Branch 66,3 assailing the MCTCs Order of dismissal.
The Trial Courts Ruling
The Capas RTC rendered judgment on December 28, 1999 dismissing the
petition for certiorari for lack of merit. The Capas RTC ruled that the order of
dismissal issued by the MCTC is a final order which disposes of the case and
therefore the proper remedy should have been an appeal. The Capas RTC
further held that a special civil action for certiorari is not a substitute for a lost
appeal. Finally, the Capas RTC declared that even on the premise that the MCTC
erred in dismissing the civil case, such error is a pure error of judgment and not
an abuse of discretion.
Casupanan and Capitulo filed a Motion for Reconsideration but the Capas RTC
denied the same in the Resolution of August 24, 2000.
Hence, this petition.
The Issue
The petition premises the legal issue in this wise:
"In a certain vehicular accident involving two parties, each one of them
may think and believe that the accident was caused by the fault of the
other. x x x [T]he first party, believing himself to be the aggrieved party,
opted to file a criminal case for reckless imprudence against the second
party. On the other hand, the second party, together with his operator,
believing themselves to be the real aggrieved parties, opted in turn to
file a civil case for quasi-delict against the first party who is the very
private complainant in the criminal case."4
Thus, the issue raised is whether an accused in a pending criminal case for
reckless imprudence can validly file, simultaneously and independently, a
separate civil action for quasi-delict against the private complainant in the
criminal case.
The Courts Ruling
Casupanan and Capitulo assert that Civil Case No. 2089, which the MCTC
dismissed on the ground of forum-shopping, constitutes a counterclaim in the
criminal case. Casupanan and Capitulo argue that if the accused in a criminal
case has a counterclaim against the private complainant, he may file the
counterclaim in a separate civil action at the proper time. They contend that an
action on quasi-delict is different from an action resulting from the crime of
reckless imprudence, and an accused in a criminal case can be an aggrieved
party in a civil case arising from the same incident. They maintain that under
Articles 31 and 2176 of the Civil Code, the civil case can proceed independently
of the criminal action. Finally, they point out that Casupanan was not the only
one who filed the independent civil action based on quasi-delict but also
Capitulo, the owner-operator of the vehicle, who was not a party in the criminal
case.
In his Comment, Laroya claims that the petition is fatally defective as it does not
state the real antecedents. Laroya further alleges that Casupanan and Capitulo
forfeited their right to question the order of dismissal when they failed to avail
of the proper remedy of appeal. Laroya argues that there is no question of law
to be resolved as the order of dismissal is already final and a petition for
certiorari is not a substitute for a lapsed appeal.
In their Reply, Casupanan and Capitulo contend that the petition raises the legal
question of whether there is forum-shopping since they filed only one action -
the independent civil action for quasi-delict against Laroya.
Nature of the Order of Dismissal
The MCTC dismissed the civil action for quasi-delict on the ground of forum-
shopping under Supreme Court Administrative Circular No. 04-94. The MCTC
did not state in its order of dismissal5 that the dismissal was with prejudice.
Under the Administrative Circular, the order of dismissal is without prejudice to
refiling the complaint, unless the order of dismissal expressly states it is with
prejudice.6 Absent a declaration that the dismissal is with prejudice, the same is
deemed without prejudice. Thus, the MCTCs dismissal, being silent on the
matter, is a dismissal without prejudice.
Section 1 of Rule 417 provides that an order dismissing an action without
prejudice is not appealable. The remedy of the aggrieved party is to file a special
civil action under Rule 65. Section 1 of Rule 41 expressly states that "where the
judgment or final order is not appealable, the aggrieved party may file an
appropriate special civil action under Rule 65." Clearly, the Capas RTCs order
dismissing the petition for certiorari, on the ground that the proper remedy is
an ordinary appeal, is erroneous.
Forum-Shopping
The essence of forum-shopping is the filing of multiple suits involving the same
parties for the same cause of action, either simultaneously or successively, to
secure a favorable judgment.8 Forum-shopping is present when in the two or
more cases pending, there is identity of parties, rights of action and reliefs
sought.9 However, there is no forum-shopping in the instant case because the
law and the rules expressly allow the filing of a separate civil action which can
proceed independently of the criminal action.
Laroya filed the criminal case for reckless imprudence resulting in damage to
property based on the Revised Penal Code while Casupanan and Capitulo filed
the civil action for damages based on Article 2176 of the Civil Code. Although
these two actions arose from the same act or omission, they have different
causes of action. The criminal case is based on culpa criminal punishable under
the Revised Penal Code while the civil case is based on culpa aquiliana
actionable under Articles 2176 and 2177 of the Civil Code. These articles on
culpa aquiliana read:
"Art. 2176. Whoever by act or omission causes damage to another,
there being fault or negligence, is obliged to pay for the damage done.
Such fault or negligence, if there is no pre-existing contractual relation
between the parties, is called a quasi-delict and is governed by the
provisions of this Chapter.
Art. 2177. Responsibility for fault or negligence under the preceding
article is entirely separate and distinct from the civil liability arising
from negligence under the Penal Code. But the plaintiff cannot recover
damages twice for the same act or omission of the defendant."
Any aggrieved person can invoke these articles provided he proves, by
preponderance of evidence, that he has suffered damage because of the fault or
negligence of another. Either the private complainant or the accused can file a
separate civil action under these articles. There is nothing in the law or rules
that state only the private complainant in a criminal case may invoke these
articles.
Moreover, paragraph 6, Section 1, Rule 111 of the 2000 Rules on Criminal
Procedure ("2000 Rules" for brevity) expressly requires the accused to litigate
his counterclaim in a separate civil action, to wit:
"SECTION 1. Institution of criminal and civil actions. (a) x x x.
No counterclaim, cross-claim or third-party complaint may be filed by
the accused in the criminal case, but any cause of action which could
have been the subject thereof may be litigated in a separate civil
action." (Emphasis supplied)
Since the present Rules require the accused in a criminal action to file his
counterclaim in a separate civil action, there can be no forum-shopping if the
accused files such separate civil action.
Filing of a separate civil action
Section 1, Rule 111 of the 1985 Rules on Criminal Procedure ("1985 Rules" for
brevity), as amended in 1988, allowed the filing of a separate civil action
independently of the criminal action provided the offended party reserved the
right to file such civil action. Unless the offended party reserved the civil action
before the presentation of the evidence for the prosecution, all civil actions
arising from the same act or omission were deemed "impliedly instituted" in the
criminal case. These civil actions referred to the recovery of civil liability ex-
delicto, the recovery of damages for quasi-delict, and the recovery of damages
for violation of Articles 32, 33 and 34 of the Civil Code on Human Relations.
Thus, to file a separate and independent civil action for quasi-delict under the
1985 Rules, the offended party had to reserve in the criminal action the right to
bring such action. Otherwise, such civil action was deemed "impliedly
instituted" in the criminal action. Section 1, Rule 111 of the 1985 Rules provided
as follows:
"Section 1. Institution of criminal and civil actions. When a criminal
action is instituted, the civil action for the recovery of civil liability is
impliedly instituted with the criminal action, unless the offended party
waives the action, reserves his right to institute it separately, or
institutes the civil action prior to the criminal action.
Such civil action includes recovery of indemnity under the Revised
Penal Code, and damages under Articles 32, 33, 34 and 2176 of the
Civil Code of the Philippines arising from the same act or omission of
the accused.
A waiver of any of the civil actions extinguishes the others. The
institution of, or the reservation of the right to file, any of said civil
actions separately waives the others.
The reservation of the right to institute the separate civil actions shall
be made before the prosecution starts to present its evidence and
under circumstances affording the offended party a reasonable
opportunity to make such reservation.
In no case may the offended party recover damages twice for the same
act or omission of the accused.
x x x." (Emphasis supplied)
Section 1, Rule 111 of the 1985 Rules was amended on December 1, 2000 and
now provides as follows:
"SECTION 1. Institution of criminal and civil actions. (a) When a
criminal action is instituted, the civil action for the recovery of civil
liability arising from the offense charged shall be deemed instituted
with the criminal action unless the offended party waives the civil
action, reserves the right to institute it separately or institutes the civil
action prior to the criminal action.
The reservation of the right to institute separately the civil action shall
be made before the prosecution starts presenting its evidence and
under circumstances affording the offended party a reasonable
opportunity to make such reservation.
xxx
(b) x x x
Where the civil action has been filed separately and trial thereof has
not yet commenced, it may be consolidated with the criminal action
upon application with the court trying the latter case. If the application
is granted, the trial of both actions shall proceed in accordance with
section 2 of this rule governing consolidation of the civil and criminal
actions." (Emphasis supplied)
Under Section 1 of the present Rule 111, what is "deemed instituted" with the
criminal action is only the action to recover civil liability arising from the crime
or ex-delicto. All the other civil actions under Articles 32, 33, 34 and 2176 of the
Civil Code are no longer "deemed instituted," and may be filed separately and
prosecuted independently even without any reservation in the criminal action.
The failure to make a reservation in the criminal action is not a waiver of the
right to file a separate and independent civil action based on these articles of
the Civil Code. The prescriptive period on the civil actions based on these
articles of the Civil Code continues to run even with the filing of the criminal
action. Verily, the civil actions based on these articles of the Civil Code are
separate, distinct and independent of the civil action "deemed instituted" in the
criminal action.10
Under the present Rule 111, the offended party is still given the option to file a
separate civil action to recover civil liability ex-delicto by reserving such right in
the criminal action before the prosecution presents its evidence. Also, the
offended party is deemed to make such reservation if he files a separate civil
action before filing the criminal action. If the civil action to recover civil
liability ex-delicto is filed separately but its trial has not yet commenced, the
civil action may be consolidated with the criminal action. The consolidation
under this Rule does not apply to separate civil actions arising from the same
act or omission filed under Articles 32, 33, 34 and 2176 of the Civil Code. 11
Suspension of the Separate Civil Action
Under Section 2, Rule 111 of the amended 1985 Rules, a separate civil action, if
reserved in the criminal action, could not be filed until after final judgment was
rendered in the criminal action. If the separate civil action was filed before the
commencement of the criminal action, the civil action, if still pending, was
suspended upon the filing of the criminal action until final judgment was
rendered in the criminal action. This rule applied only to the separate civil
action filed to recover liability ex-delicto. The rule did not apply to independent
civil actions based on Articles 32, 33, 34 and 2176 of the Civil Code, which could
proceed independently regardless of the filing of the criminal action.
The amended provision of Section 2, Rule 111 of the 2000 Rules continues this
procedure, to wit:
"SEC. 2. When separate civil action is suspended. After the criminal
action has been commenced, the separate civil action arising therefrom
cannot be instituted until final judgment has been entered in the
criminal action.
If the criminal action is filed after the said civil action has already
been instituted, the latter shall be suspended in whatever stage it
may be found before judgment on the merits. The suspension shall
last until final judgment is rendered in the criminal
action. Nevertheless, before judgment on the merits is rendered in the
civil action, the same may, upon motion of the offended party, be
consolidated with the criminal action in the court trying the criminal
action. In case of consolidation, the evidence already adduced in the
civil action shall be deemed automatically reproduced in the criminal
action without prejudice to the right of the prosecution to cross-
examine the witnesses presented by the offended party in the criminal
case and of the parties to present additional evidence. The consolidated
criminal and civil actions shall be tried and decided jointly.
During the pendency of the criminal action, the running of the period of
prescription of the civil action which cannot be instituted separately or
whose proceeding has been suspended shall be tolled.
x x x." (Emphasis supplied)
Thus, Section 2, Rule 111 of the present Rules did not change the rule that the
separate civil action, filed to recover damages ex-delicto, is suspended upon the
filing of the criminal action. Section 2 of the present Rule 111 also prohibits the
filing, after commencement of the criminal action, of a separate civil action to
recover damages ex-delicto.
When civil action may proceed independently
The crucial question now is whether Casupanan and Capitulo, who are not the
offended parties in the criminal case, can file a separate civil action against the
offended party in the criminal case. Section 3, Rule 111 of the 2000 Rules
provides as follows:
"SEC 3. When civil action may proceed independently. - In the cases
provided in Articles 32, 33, 34 and 2176 of the Civil Code of the
Philippines, the independent civil action may be brought by
the offended party. It shall proceed independently of the criminal
action and shall require only a preponderance of evidence. In no case,
however, may the offended party recover damages twice for the same
act or omission charged in the criminal action." (Emphasis supplied)
Section 3 of the present Rule 111, like its counterpart in the amended 1985
Rules, expressly allows the "offended party" to bring an independent civil action
under Articles 32, 33, 34 and 2176 of the Civil Code. As stated in Section 3 of the
present Rule 111, this civil action shall proceed independently of the criminal
action and shall require only a preponderance of evidence. In no case, however,
may the "offended party recover damages twice for the same act or omission
charged in the criminal action."
There is no question that the offended party in the criminal action can file an
independent civil action for quasi-delict against the accused. Section 3 of the
present Rule 111 expressly states that the "offended party" may bring such an
action but the "offended party" may not recover damages twice for the same act
or omission charged in the criminal action. Clearly, Section 3 of Rule 111 refers
to the offended party in the criminal action, not to the accused.
Casupanan and Capitulo, however, invoke the ruling in Cabaero vs.
Cantos12 where the Court held that the accused therein could validly institute a
separate civil action for quasi-delict against the private complainant in the
criminal case. In Cabaero, the accused in the criminal case filed his Answer with
Counterclaim for malicious prosecution. At that time the Court noted the
"absence of clear-cut rules governing the prosecution on impliedly instituted
civil actions and the necessary consequences and implications thereof."
Thus, the Court ruled that the trial court should confine itself to the criminal
aspect of the case and disregard any counterclaim for civil liability. The Court
further ruled that the accused may file a separate civil case against the offended
party "after the criminal case is terminated and/or in accordance with the new
Rules which may be promulgated." The Court explained that a cross-claim,
counterclaim or third-party complaint on the civil aspect will only unnecessarily
complicate the proceedings and delay the resolution of the criminal case.
Paragraph 6, Section 1 of the present Rule 111 was incorporated in the 2000
Rules precisely to address the lacunamentioned in Cabaero. Under this
provision, the accused is barred from filing a counterclaim, cross-claim or third-
party complaint in the criminal case. However, the same provision states that
"any cause of action which could have been the subject (of the counterclaim,
cross-claim or third-party complaint) may be litigated in a separate civil action."
The present Rule 111 mandates the accused to file his counterclaim in a
separate civil actiosn which shall proceed independently of the criminal action,
even as the civil action of the offended party is litigated in the criminal action.
Conclusion
Under Section 1 of the present Rule 111, the independent civil action in Articles
32, 33, 34 and 2176 of the Civil Code is not deemed instituted with the criminal
action but may be filed separately by the offended party even without
reservation. The commencement of the criminal action does not suspend the
prosecution of the independent civil action under these articles of the Civil
Code. The suspension in Section 2 of the present Rule 111 refers only to the civil
action arising from the crime, if such civil action is reserved or filed before the
commencement of the criminal action.
Thus, the offended party can file two separate suits for the same act or
omission. The first a criminal case where the civil action to recover civil
liability ex-delicto is deemed instituted, and the other a civil case for quasi-
delict - without violating the rule on non-forum shopping. The two cases can
proceed simultaneously and independently of each other. The commencement
or prosecution of the criminal action will not suspend the civil action for quasi-
delict. The only limitation is that the offended party cannot recover damages
twice for the same act or omission of the defendant. In most cases, the offended
party will have no reason to file a second civil action since he cannot recover
damages twice for the same act or omission of the accused. In some instances,
the accused may be insolvent, necessitating the filing of another case against his
employer or guardians.
Similarly, the accused can file a civil action for quasi-delict for the same act or
omission he is accused of in the criminal case. This is expressly allowed in
paragraph 6, Section 1 of the present Rule 111 which states that the
counterclaim of the accused "may be litigated in a separate civil action." This
is only fair for two reasons. First, the accused is prohibited from setting up any
counterclaim in the civil aspect that is deemed instituted in the criminal case.
The accused is therefore forced to litigate separately his counterclaim against
the offended party. If the accused does not file a separate civil action for quasi-
delict, the prescriptive period may set in since the period continues to run until
the civil action for quasi-delict is filed.
Second, the accused, who is presumed innocent, has a right to invoke Article
2177 of the Civil Code, in the same way that the offended party can avail of this
remedy which is independent of the criminal action. To disallow the accused
from filing a separate civil action for quasi-delict, while refusing to recognize his
counterclaim in the criminal case, is to deny him due process of law, access to
the courts, and equal protection of the law.
Thus, the civil action based on quasi-delict filed separately by Casupanan and passage. Procedural laws are retroactive in that sense and to that
Capitulo is proper. The order of dismissal by the MCTC of Civil Case No. 2089 on extent."14
the ground of forum-shopping is erroneous.
WHEREFORE, the petition for review on certiorari is hereby GRANTED. The
We make this ruling aware of the possibility that the decision of the trial court Resolutions dated December 28, 1999 and August 24, 2000 in Special Civil
in the criminal case may vary with the decision of the trial court in the Action No. 17-C (99) are ANNULLED and Civil Case No. 2089 is REINSTATED.
independent civil action. This possibility has always been recognized ever since
the Civil Code introduced in 1950 the concept of an independent civil action SO ORDERED.
under Articles 32, 33, 34 and 2176 of the Code. But the law itself, in Article 31 of
the Code, expressly provides that the independent civil action "may proceed
independently of the criminal proceedings and regardless of the result of the
latter." In Azucena vs. Potenciano,13the Court declared:
TOPIC: Rule 111 D. Effect of Death on the Civil Action
"x x x. There can indeed be no other logical conclusion than this, for to
Republic of the Philippines
subordinate the civil action contemplated in the said articles to the
SUPREME COURT
result of the criminal prosecution whether it be conviction or
Manila
acquittal would render meaningless the independent character of
the civil action and the clear injunction in Article 31 that this action
FIRST DIVISION
'may proceed independently of the criminal proceedings and regardless
of the result of the latter."

More than half a century has passed since the Civil Code introduced the concept
G.R. No. 112985 April 21, 1999
of a civil action separate and independent from the criminal action although
arising from the same act or omission. The Court, however, has yet to encounter
a case of conflicting and irreconcilable decisions of trial courts, one hearing the PEOPLE OF THE PHILIPPINES, plaintiff-appellee
vs.
criminal case and the other the civil action for quasi-delict. The fear of
conflicting and irreconcilable decisions may be more apparent than real. In any MARTIN L. ROMERO and ERNESTO C. RODRIGUEZ, accused-appellants.
event, there are sufficient remedies under the Rules of Court to deal with such
remote possibilities. PARDO, J

One final point. The Revised Rules on Criminal Procedure took effect on
December 1, 2000 while the MCTC issued the order of dismissal on December
28, 1999 or before the amendment of the rules. The Revised Rules on Criminal
Procedure must be given retroactive effect considering the well-settled rule that
- swindling, and sentencing each of them to suffer the penalty of life
"x x x statutes regulating the procedure of the court will be construed
as applicable to actions pending and undetermined at the time of their
The case before the Court is an appeal of accused Martin L. Romero and Ernesto
C. Rodriguez from the Joint Judgment1 of the Regional Trial Court, Branch 2,
Butuan City, convicting each of them of estafa under Article 315, par. 2 (d) of the
Revised Penal Code, in relation to Presidential Decree No. 1689, for widescale
imprisonment and to jointly and severally pay Ernesto A. Ruiz the amount of
one hundred fifty thousand pesos (P150,000.00), with interest at the rate of
twelve percent (12%) per annum, starting September 14, 1989, until fully paid,
and to pay ten thousand pesos (P10,000.00), as moral damages.
On October 25, 1989, Butuan City acting fiscal Ernesto M. Brocoy filed with the
Regional Trial Court, Butuan City, in Information against the two (2) accused
estafa,2 as follows:
That on or about September 14, 1989, at Butuan City,
Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused being the General Manager
and Operation Manager which solicit funds from the general
public for investment, conspiring, confederating together and
mutually helping, one another, by means of deceit and false
pretense, did then and there willfully, unlawfully and
feloniously deliberately defraud one Ernesto A. Ruiz by
convincing the latter to invest his money in the amount of
P150,000.00 with a promise return of 800 % profit within 21
days and in the process caused the issuance of Butuan City
Rural [sic] Bank Check No. 158181 postdated to October 5,
1989 in the amount of One Million Two Hundred Thousand
Pesos (P1,200,000.00) Philippine Currency, that upon
presentation of said check to the drawee bank for payment the
same was dishonored and that notwithstanding repeated
demands made on said accused to pay and/or change the
check to cash, they consistently failed and refused and still fail
and refuse to pay or redeem the check, to the damage and
prejudice of the complainant in the aforestated amount of
P1,200,000.00.3
On the same day, the city fiscal filed with the same court another information
against the two (2) accused for violation of Batas Pambansa Bilang 22, arising
from the issuance of the same check.4
On January 11, 1990, both accused were arraigned before the Regional Trial
Court, Branch 5, 5 Butuan City, where they plead not guilty to both informations.
The prosecution presented its evidence on January 10, 1991, with complainant,
Ernesto A. Ruiz, and Daphne Parrocho, the usher/collector of the corporation
being managed by accused, testifying for the prosecution.
On August 12, 1991, the defense presented its only witness, accused Martin L.
Romero.
On November 13, 1992, the parties submitted a joint stipulation of facts, signed
only by their respective counsels. Thereafter, the case was submitted for
decision.
On March 30, 1993, the trail court promulgated a Joint Judgment dated March
25, 1993. The trial court acquitted the accused in Criminal Case No. 3806 6 based
on reasonable doubt, but convicted them in Criminal Case No. 3808 7and
accordingly sentenced each of them, as follows:
IN VIEW OF THE FOREGOING, the Court hereby renders
judgments, finding or declaring
(a) Accused Martin L. Romero and Ernesto C. Rodriguez
innocent on reasonable doubt in Criminal Case No. 3806, for
violation of Batas Pambansa Bilang 22;
(b) Accused Martin L. Romero and Ernesto C. Rodriguez guilty
beyond reasonable doubt in Criminal Case No. 3808 for estafa
under P.D. 1689 for wide scale [sic] swindling and accordingly
sentences them to suffer life imprisonment (Section 1 P.D.
1689) and ordered jointly and severally to return to Ernesto A.
Ruiz the amount of One Hundred Fifty Thousand Pesos
(P150,000.00) with interest thereon at the rate of Twelve
percent (12%) per annum starting from September 14, 1989
until fully paid and to pay the amount Of Ten Thousand Pesos
(P10,000.00) as moral damages.
In the service of their sentence, the accused pursuant to R.A.
6127, shall be credited for the preventive imprisonment they
have undergone (PP vs. Ortencio, 38 Phil 941; PP vs. Gabriel,
No. L-13750, October 30, 1959, cited in Gregorio's
"Fundamentals of Criminal Law Review", P. 178, Seventh
Edition, 1985).8
On March 31, 1993, accused filed their notice of appeal, which the trial court
gave due course on April 5, 1993. On March 16, 1994, this Court ordered the,
accused to file their appellants' brief.
Accused-appellants filed their brief on October 30, 1995, while the Solicitor
General filed the appellee's brief on March 8, 1996.
During the pendency of the appeal, on November 12, 1997, accused Ernesto
Rodriguez died. 9 As a consequence of his death before final judgment, his
criminal and civil liability ex delicto, were extinguished. 10
Complainant Ernesto A. Ruiz was a radio commentator of Radio DXRB, Butuan
City. In August, 1989, he came to know the business of Surigao San Andres
Industrial Development Corporation (SAIDECOR), when he interviewed accused
Martin Romero and Ernesto Rodriguez regarding the corporation's investment
operations in Butuan City and Agusan del Norte. Romero was the president and
general manager of SAIDECOR, while Rodriguez was the operations manager.
SAIDECOR started its operation on August 24, 1989 as a marketing business.
Later, it engaged in soliciting funds and investments from the public. The
corporation guaranteed an 800% return on investment within fifteen (15) or
twenty one (21) days. Investors were given coupons containing the capital and
the return on the capital collectible on the date agreed upon. It stopped
operations in September, 1989.
On September 14, 1989, complainant Ernesto A. Ruiz went to SAIDECOR office
in Butuan City to make an investment, accompanied by his friend Jimmy Acebu,
and SAIDECOR collection agent Daphne Parrocho. After handing over the
amount of one hundred fifty thousand pesos (P150,000.00) to Ernesto
Rodriguez, complainant received a postdated Butuan City Rural Bank check
instead of the usual redeemable coupon. The check indicated P1,000,200.00 as
the amount in words, but the amount in figures was for P1,200,000.00, as the
return on the investment. Compliant did not notice the discrepancy.
When the check was presented to the bank for payment on October 5, 1989, it
was dishonored for insufficiency of funds, as evidenced by the check return slip
issued by the bank. 11 Both accused could not be located and demand for
payment was made only sometime in November 1989 during the preliminary
investigation of this case. Accused responded that they had no money.
Daphne Parrocho, 12 testified that on September 14, 1989, complainant, with his
friend Jimmy Acebu, approached her to invest the amount of P150,000.00 at
SAIDECOR. As she has reached her quota, and therefore, no longer authorized to
receive the amount, she accompanied them to the office of SAIDECOR at Ong Yiu
District, Butuan City. Accused Ernesto Rodriguez accepted the investment and
issued the check signed by him and Martin Romero.
For their defense, accused Martin Romero13 testified that on September 14,
1989, he issued a check in the amount of P1,2000,000.00 corresponding to the
total of the P150,000.00 investment and the 800% return thereon. He claimed
that the corporation had a deposit of fourteen million pesos (P14,000,000.00) at
the time of the issuance of the check and four million pesos (P4,000,000.00) at
the time SAIDDECOR stopped operations. Romero knew these things because he
used to monitor the funds of the corporation with the bank. He was not aware
that the check he issued was dishonored because he never had the occasion to
meet the complainant again after the September 14, 1989 transaction. He only
came to know about this when the case was already filed in court sometime in
the second or third week of January 1990.
In this appeal, both accused did not deny that complainant made an investment
with SAIDECOR in the amount of P150,000.00. However, they denied that deceit
was employed in the transaction. They assigned as errors: (1) their conviction
under P.D. 1689 due to the prosecution's failure to establish their guilt beyond
reasonable doubt; and (2) the trial court's failure to consider the joint
stipulation of facts in their favor. 15
There is no merit in this appeal. We sustain accused-appellant's conviction.
Under paragraph 2 (d) of Article 315, as amended by R.A. 4885, 16 the elements
of estafa are: (1) a check was postdated or issued in payment of an obligation
contracted at the time it was issued; (2) lack or insufficiency of funds to cover
the check; (3) damage to the payee thereof. 17 The prosecution has satisfactorily
established all these elements.
Fraud, in its general sense, is deemed to comprise anything calculated to
deceive, including all acts, omissions, and concealment involving a breach of
legal equitable duty, trust, or confidence justly reposed, resulting in damage to
another, or by which an undue and unconscientious advantage is taken of
another. 18 It is a generic term embracing all multifarious means which human
ingenuity can device, and which are resorted to by one individual to secure an
advantage over another by false suggestions or by suppression of truth and
includes all surprise, trick, cunning, dissembling and any unfair way by which
another is cheated. 19
Deceit is a specific of fraud. It is actual fraud, and consists in any false
representation or contrivance whereby one person overreaches and misleads
another, to his hurt. Deceit excludes the idea of mistake. 20 There is deceit when
one is misled, either by guide or trickery or by other means, to believe to be true
what is really false. 21 In this case, there was deception when accused
fraudulently represented to complainant that his investment with the
corporation would have an 800% return in 15 or 21 days.
Upon receipt of the money, accused-appellant Martin Romero issued a
postdated check. Although accused-appellant contends that sufficient funds
were deposited in the bank when the check was issued, he presented no officer
of the bank to substantiate the contention. The check was dishonored when
presented for payment, and the check return slip submitted in evidence
indicated that it was dishonored due to insufficiency of funds.
Even assuming for the sake of argument that the check was dishonored without
any fraudulent pretense or fraudulent act of the drawer, the latter's failure to
cover the amount within three days after notice creates a rebuttable
presumption of fraud. 22
Admittedly (1) the check was dishonored for insufficiency of funds as evidenced
by the check return slip; (2) complainant notified accused of the dishonor; and
(3) accused failed to make good the check within three days. Presumption of
deceit remained since accused failed to prove otherwise. Complainant sustained
damage in the amount of P150,000.00.
Accused-appellant also contends that had the trial court admitted the
Admission and Stipulaion of Facts of November 9, 1992, it would prove that
SAIDECOR had sufficient funds in the bank.
Accused-appellant relies on the fact that there was a discrepancy between the
amount in words and the amount in figures in the check that was dishonored.
The amount in words was P1,000,200.00, while the amount in figures was
P1,200,000.00. It is admitted that the corporation had in the bank
P1,144,760.00 on September 28, 1989, and P1,124,307.14 on April 2, 1990. The
check was presented for payment on October 5, 1989. The rule in the Negotiable
Instruments Law is that when there is ambiguity in the amount in words and
the amount in figures, it would be the amount in words that would prevail. 23
However, this rule of interpretation finds no application in the case. The
agreement was perfectly clear that at the end of twenty one (21) days, the
investment of P150,000.00 would become P1,200,000.00. Even if the trial court
admitted the stipulation of facts, it would not be favorable to accused-appellant.
The factual narration in this case established a kind of Ponzi scheme. 24 This is
"an investment swindle in which high profits are promised from fictitious
sources and early investors are paid off with funds raised from later ones." It is
sometimes called a pyramid scheme because a broader base of gullible
investors must support the structure as time passes.
In the recent case of People vs. Priscilla Balasa, 25 this Court held that a
transaction similar to the case at hand is not an investment strategy but a
gullibility scheme, which works only as long as there is an ever increasing
number of new investors joining the scheme. It is difficult to sustain over a long
period of time because the operator needs an ever larger pool of later investors
to continue paying the promised profits to early investors. The idea behind this
type of swindle is that the "con-man" collects his money from his second or
third round of investors and then absconds before anyone else shows up to
collect. Necessarily, these schemes only last weeks, or months at most, just like
what happened in this case.
The Court notes that one of the accused-appellants, Ernesto Rodriguez, died
pending appeal. Pursuant to the doctrine established in People vs. Bayotas, 26 the
death of the accused pending appeal of his conviction extinguishes his criminal
liability as well as the civil liability ex delicto. The criminal action is extinguished
inasmuch as there is no longer a defendant to stand as the accused, the civil
action instituted therein for recovery of civil liability ex delicto is ipso
facto extinguished, grounded as it is on the criminal case. Corollarily, the claim
for civil liability survives notwithstanding the death of the accused, if the same
may also be predicted on a source of obligation other than delicit. 27
Thus, the outcome of this appeal pertains only remaining accused-appellant,
Martin L. Romero. The trail court considered the swindling involved in this case
as having been committed by a syndicate 28 and sentenced the accused to life
imprisonment based on the provisions of Presidential Decree 1689, which
increased the penalty for certain forms of swindling or estafa. 29 However, the
prosecution failed to clearly establish that the corporation was a syndicate, as
defined under the law. The penalty of life imprisonment cannot be imposed.
What would be applicable in the present case is the second paragraph of a
Presidential Decree No. 1689, Section 1, which provides that:
When not committed by a syndicate as above defined, the
penalty imposable shall be reclusion temporal to reclusion
perpetua if the amount of the fraud exceeds 100.000 pesos.
WHEREFORE, the Court hereby AFFIRMS WITH MODIFICATION the appealed
judgment. The Court hereby sentences accused-appellant Martin Romero to
suffer an indeterminate penalty of ten (10) years and one (1) day ofprision
mayor, as minimum, to sixteen (16) years and one (1) day of reclusion
temporal, as maximum, to indemnify Ernesto A. Ruiz in the amount of one
hundred fifty thousand pesos (P150,000.00) with interest thereon at six
(6%)per centrum per annum from September 14, 1989, until fully paid, to pay
twenty thousand pesos (P20,000.00) as moral damages and fifteen thousand
pesos (P15,000.00), as exemplary damages, and the costs.1wphi1.nt

Art. 77 of the Revised Penal Code on complex penalties provides that "whenever SO ORDERED.
the penalty prescribed does not have one of the forms specially provided for in
this Code, the periods shall be distributed, applying by analogy the prescribed
rules," that is, those in Articles 61 and 76. 30 Hence, where as in this case, the
penalty provided by Section 1 of Presidential Decree No. 1689 for estafa under TOPIC: Rule 111 E. Prejudicial Question
Articles 315 and 316 of the Code is reclusion temporal to reclusion perpetua, the
minimum period thereof is twelve (12) year and one (1) day to sixteen (16) Republic of the Philippines
years of reclusion temporal; the medium period is sixteen (16) years and one (1) SUPREME COURT
day to twenty (20) years of reclusion temporal; and the maximum period Manila
is reclusion perpetua.
SECOND DIVISION
In the case at bar, no mitigating or aggravating circumstance has been alleged or
proved. Applying the rules in the Revised Penal Code for graduating penalties G.R. No. 172060 September 13, 2010
by degreses 31 to determine the proper period, 32 the penalty for the offense of
estafa under Article 315, 2(d) as amended by P.D. 1689 involving the amount of JOSELITO R. PIMENTEL, Petitioner,
P150,000.00 is the medium of the period of the complex penalty in said Section vs.
1, that is, sixteen (16) years and one (1) day to twenty (20) years. This penalty, MARIA CHRYSANTINE L. PIMENTEL and PEOPLE OF THE
being that which is to be actually imposed in accordance with the therefor and PHILIPPINES, Respondents.
not merely imposable as a general prescription under the law, shall be the
maximum range of the indeterminate sentence. 33The minimum thereof shall be
DECISION
taken, as aforesaid, from any period of the penalty next lower in degree which
isprision mayor.
CARPIO, J.:

To enable the complainant to obtain means, diversion or amusements that will

The Case
serve to alleviate the moral sufferings undergone by him, by reason of the
failure of the accused to return his money, moral damages are imposed against
Before the Court is a petition for review1 assailing the Decision2 of the Court of
accused-appellant Martin L. Romero in the amount of twenty thousand pesos
Appeals, promulgated on 20 March 2006, in CA-G.R. SP No. 91867.
(P20,000.00), 34 To serve as an example for the public good, exemplary damages
are awarded against him in the amount of fifteen thousand pesos (P15,000.
The Antecedent Facts
00). 35
The facts are stated in the Court of Appeals decision:
On 25 October 2004, Maria Chrysantine Pimentel y Lacap (private respondent)
filed an action for frustrated parricide against Joselito R. Pimentel (petitioner),
docketed as Criminal Case No. Q-04-130415, before the Regional Trial Court of
Quezon City, which was raffled to Branch 223 (RTC Quezon City).
On 7 February 2005, petitioner received summons to appear before the
Regional Trial Court of Antipolo City, Branch 72 (RTC Antipolo) for the pre-trial
and trial of Civil Case No. 04-7392 (Maria Chrysantine Lorenza L. Pimentel v.
Joselito Pimentel) for Declaration of Nullity of Marriage under Section 36 of the
Family Code on the ground of psychological incapacity.
On 11 February 2005, petitioner filed an urgent motion to suspend the
proceedings before the RTC Quezon City on the ground of the existence of a
prejudicial question. Petitioner asserted that since the relationship between the
offender and the victim is a key element in parricide, the outcome of Civil Case
No. 04-7392 would have a bearing in the criminal case filed against him before
the RTC Quezon City.
The Decision of the Trial Court
The RTC Quezon City issued an Order dated 13 May 20053holding that the
pendency of the case before the RTC Antipolo is not a prejudicial question that
warrants the suspension of the criminal case before it. The RTC Quezon City
held that the issues in Criminal Case No. Q-04-130415 are the injuries sustained
by respondent and whether the case could be tried even if the validity of
petitioners marriage with respondent is in question. The RTC Quezon City
ruled:
WHEREFORE, on the basis of the foregoing, the Motion to Suspend Proceedings
On the [Ground] of the Existence of a Prejudicial Question is, for lack of merit,
DENIED.
SO ORDERED.4
Petitioner filed a motion for reconsideration. In its 22 August 2005 Order, 5 the
RTC Quezon City denied the motion.
Petitioner filed a petition for certiorari with application for a writ of preliminary
injunction and/or temporary restraining order before the Court of Appeals,
assailing the 13 May 2005 and 22 August 2005 Orders of the RTC Quezon City.
The Decision of the Court of Appeals
In its 20 March 2006 Decision, the Court of Appeals dismissed the petition. The
Court of Appeals ruled that in the criminal case for frustrated parricide, the
issue is whether the offender commenced the commission of the crime of
parricide directly by overt acts and did not perform all the acts of execution by
reason of some cause or accident other than his own spontaneous desistance.
On the other hand, the issue in the civil action for annulment of marriage is
whether petitioner is psychologically incapacitated to comply with the essential
marital obligations. The Court of Appeals ruled that even if the marriage
between petitioner and respondent would be declared void, it would be
immaterial to the criminal case because prior to the declaration of nullity, the
alleged acts constituting the crime of frustrated parricide had already been
committed. The Court of Appeals ruled that all that is required for the charge of
frustrated parricide is that at the time of the commission of the crime, the
marriage is still subsisting.
Petitioner filed a petition for review before this Court assailing the Court of
Appeals decision.
The Issue
The only issue in this case is whether the resolution of the action for annulment
of marriage is a prejudicial question that warrants the suspension of the
criminal case for frustrated parricide against petitioner.
The Ruling of this Court
The petition has no merit.
Civil Case Must be Instituted
Before the Criminal Case
Section 7, Rule 111 of the 2000 Rules on Criminal Procedure6 provides:
Section 7. Elements of Prejudicial Question. - The elements of a prejudicial
question are: (a) the previously instituted civil action involves an issue similar
or intimately related to the issue raised in the subsequent criminal action and
(b) the resolution of such issue determines whether or not the criminal action
may proceed.
The rule is clear that the civil action must be instituted first before the filing of
the criminal action. In this case, the Information7 for Frustrated Parricide was
dated 30 August 2004. It was raffled to RTC Quezon City on 25 October 2004 as
per the stamped date of receipt on the Information. The RTC Quezon City set
Criminal Case No. Q-04-130415 for pre-trial and trial on 14 February 2005.
Petitioner was served summons in Civil Case No. 04-7392 on 7 February
2005.8 Respondents petition9 in Civil Case No. 04-7392 was dated 4 November
2004 and was filed on 5 November 2004. Clearly, the civil case for annulment
was filed after the filing of the criminal case for frustrated parricide. As such, the
requirement of Section 7, Rule 111 of the 2000 Rules on Criminal Procedure
was not met since the civil action was filed subsequent to the filing of the
criminal action.
Annulment of Marriage is not a Prejudicial Question
in Criminal Case for Parricide
Further, the resolution of the civil action is not a prejudicial question that would
warrant the suspension of the criminal action.
There is a prejudicial question when a civil action and a criminal action are both
pending, and there exists in the civil action an issue which must be
preemptively resolved before the criminal action may proceed because
howsoever the issue raised in the civil action is resolved would be
determinative of the guilt or innocence of the accused in the criminal case.10 A
prejudicial question is defined as:
x x x one that arises in a case the resolution of which is a logical antecedent of
the issue involved therein, and the cognizance of which pertains to another
tribunal. It is a question based on a fact distinct and separate from the crime but
so intimately connected with it that it determines the guilt or innocence of the
accused, and for it to suspend the criminal action, it must appear not only that
said case involves facts intimately related to those upon which the criminal
prosecution would be based but also that in the resolution of the issue or issues
raised in the civil case, the guilt or innocence of the accused would necessarily
be determined.11
The relationship between the offender and the victim is a key element in the
crime of parricide,12 which punishes any person "who shall kill his father,
mother, or child, whether legitimate or illegitimate, or any of his ascendants or
descendants, or his spouse."13 The relationship between the offender and the
victim distinguishes the crime of parricide from murder14 or
homicide.15 However, the issue in the annulment of marriage is not similar or
intimately related to the issue in the criminal case for parricide. Further, the
relationship between the offender and the victim is not determinative of the
guilt or innocence of the accused.
The issue in the civil case for annulment of marriage under Article 36 of the
Family Code is whether petitioner is psychologically incapacitated to comply
with the essential marital obligations. The issue in parricide is whether the
accused killed the victim. In this case, since petitioner was charged with
frustrated parricide, the issue is whether he performed all the acts of execution
which would have killed respondent as a consequence but which, nevertheless,
did not produce it by reason of causes independent of petitioners will. 16 At the
time of the commission of the alleged crime, petitioner and respondent were
married. The subsequent dissolution of their marriage, in case the petition in
Civil Case No. 04-7392 is granted, will have no effect on the alleged crime that
was committed at the time of the subsistence of the marriage. In short, even if
the marriage between petitioner and respondent is annulled, petitioner could
still be held criminally liable since at the time of the commission of the alleged
crime, he was still married to respondent.1avvphi1
We cannot accept petitioners reliance on Tenebro v. Court of Appeals17 that "the
judicial declaration of the nullity of a marriage on the ground of psychological
incapacity retroacts to the date of the celebration of the marriage insofar as
the vinculum between the spouses is concerned x x x." First, the issue
in Tenebro is the effect of the judicial declaration of nullity of a second or
subsequent marriage on the ground of psychological incapacity on a criminal
liability for bigamy. There was no issue of prejudicial question in that case.
Second, the Court ruled in Tenebro that "[t]here is x x x a recognition written
into the law itself that such a marriage, although void ab initio, may still produce
legal consequences."18 In fact, the Court declared in that case that "a declaration
of the nullity of the second marriage on the ground of psychological incapacity
is of absolutely no moment insofar as the States penal laws are concerned." 19
In view of the foregoing, the Court upholds the decision of the Court of Appeals. During the annual stockholders meeting of petitioner JM Dominguez Agronomic
The trial in Criminal Case No. Q-04-130415 may proceed as the resolution of the Company, Inc. (JMD) held on December 29, 2007 at the Baguio City Country
issue in Civil Case No. 04-7392 is not determinative of the guilt or innocence of Club, the election for its new set of directors was conducted. This event was
petitioner in the criminal case. presided by then company president, and herein respondent, Cecilia Liclican
(Liclican), and attended by her co-respondents Norma Isip (Isip) and Purita
WHEREFORE, we DENY the petition. We AFFIRM the 20 March 2006 Decision Rodriguez, and by petitioners Helen Dagdagan (Dagdagan), Patrick Pacis,
of the Court of Appeals in CA-G.R. SP No. 91867. Kenneth Pacis, and Shirley Dominguez (Dominguez) as well. Conflict ensued
when petitioners Patrick and Kenneth Pacis were allegedly not allowed to vote
SO ORDERED. on the ground that they are not registered stockholders of JMD. As pointed out,
it was their mother and grandmother, both deceased, who are the stockholders
Republic of the Philippines in JMD, and that there is still no settlement of their respective estates to
SUPREME COURT effectively transfer their shares in the company to Patrick and Kenneth Pacis.3
Manila
Tensions rose and respondents, allegedly, walked out of the meeting. But since
THIRD DIVISION the remaining stockholders with outstanding shares constituted a quorum, the
election of officers still proceeded, which yielded the following result: 4
G.R. No. 208587 July 29, 2015
Officers:
JM DOMINGUEZ AGRONOMIC COMPANY, INC., HELEN D. DAGDAGAN,
PATRICK PACIS, KENNETH PACIS, and SHIRLEY DOMINGUEZ, Petitioners, 1. Helen D. Dagdagan as President
vs.
CECILIA LICLICAN, NORMA D. ISIP, and PURITA DOMINGUEZ, Respondents. 2. Patrick D. Pacis as Vice-President

DECISION 3. Kenneth D. Pacis as Secretary

VELASCO, JR., J.: 4. Shirley C. Dominguez as Treasurer

Nature of the Case
Petitioners, through the instant Petition for Review on Certiorari under Rule 45
of the Rules of Court, seek the reversal of the Court of Appeals (CA)
Decision1 dated August 30, 2012 and its Resolution2 dated July 15, 2013 in CA-
G.R. SP No. 108617. Said rulings nullified the Orders authorizing the issuance of
the assailed warrants of arrest against respondents for allegedly having been
issued in grave abuse of discretion.
The Facts
After staging the walk-out, respondents, on even date, executed a Board
Resolution certifying that in the stockholders meeting, the following were
elected directors and officers of JMD:5 Board of Directors:
1. Cecilia D. Liclican Chairman and Presiding Officer
2. Norma D. Isip
3. Purita C. Dominguez
4. Tessie C. Dominguez, and
 5. Shirley C. Dominguez
Officers:
1. Cecilia D. Liclican as President and Presiding Officer
2. Norma D. Isip as Vice-President
3. Gerald B. Cabrera as Corporate Secretary/Treasurer and
4. Oscar Aquino Financial Consultant Auditor
In reaction to the foregoing developments, petitioners Dagdagan, Patrick and
Kenneth Pacis, and Dominguez filed a Complaint against respondents before the
Regional Trial Comi of Baguio City (RTC) for nullification of meetings, election
and acts of directors and officers, injunction and other reliefs, raffled to Branch
59 of the court. Docketed as Civil Case No. 6623-R, the case, after a failed
mediation, was referred for appropriate Judicial Dispute Resolution (JDR) to
Branch 7 of the RTC. Meanwhile, petitioner stockholders immediately took hold
of corporate properties, represented themselves to JMD's tenants as the true
and lawful directors of the company, and collected and deposited rents due the
company to its bank account.6
Subsequently, JMD, represented by petitioners Dagdagan and Patrick Pacis,
executed an Affidavit-Complaint7 dated December 15, 2008 charging
respondents Liclican and Isip with qualified theft. Petitioners alleged in the
complaint, docketed as I.S. No. 3011 with the Office of the City Prosecutor in
Baguio City, that on January 2, 2008, Liclican and Isip, without any authority
whatsoever, conspired to withdraw the amount of 852,024.19 from the
corporation's savings account with the Equitable-PCI Bank; and that the
following day, they issued Check No. C00024899018 in the amount of 200,000,
payable to cash, and to be drawn against JMD's account with Robinson's Savings
Bank.9
In a separate complaint,10 docketed as I.S. No. 3118, the corporation claimed
that respondents Liclican and Isip likewise issued Equitable-PCI Bank Check No.
32095311 payable to one Atty. Francisco Lava, Jr. for 200,000 to be debited
from the corporation's account.
After due proceedings, the Office of the City Prosecutor of Baguio City, by Joint
Resolution of February 2, 2009, recommended the filing of informations as
follows:12
WHEREFORE, premises considered. the undersigned recommends for approval
the attached Informations for Qualified Theft against LICLICAN and ISIP in LS.
No. 3011 and another against LICLICAN in LS. No. 3118.
When filed, the informations were eventually raffled to Branch 7 of the RTC, the
same court overseeing the JDR,13presided over by Judge Mona Lisa V. Tiongson-
Tabora (Judge Tiongson-Tabora). The criminal cases for qualified theft were
then docketed as Criminal Case Nos. 29176-R (based on I.S. No. 3118) and
29175-R (based on I.S. No. 3111).
On March 10, 2009, Judge Tiongson-Tabora issued an Order14 in Criminal Case
No. 29176-R, finding probable cause for the issuance of a warrant of arrest
against Liclican, thus: WHEREFORE. the Information filed herein is hereby given
due course. Let the corresponding warrant of arrest be issued against the
accused. As recommended, the bail is hereby fixed as Php 80,000.00.
SO ORDERED.
A similar Order,15 also dated March 10, 2009, was issued in Criminal Case No.
29175-R likewise finding probable cause against respondents Liclican and Isip,
viz:
WHEREFORE, the Information filed herein is hereby given due course. Let the
corresponding warrant of arrest be issued against the accused. As
recommended, the bail is hereby fixed at Php 80,000.00 each.
Considering that the address provided for accused Norma Isip is Washington,
U.S.A., the private complainants are hereby given fifteen ( 15) days from receipt
hereof to provide the Court with a local address for the said accused if she may
be found in the Philippines.
SO ORDERED.
Consequently, the corresponding warrants were issued for the arrests of Isip
and Liclican.16 In due time, respondents lodged a petition for certiorari with the
CA, docketed as CA-G.R. SP No. 108617, to annul and set aside the two (2) March
I 0, 2009 Orders by the RTC Branch 7, anchored, among others, on the alleged
existence of a prejudicial question. According to respondents, petitioner
stockholders, by filing the complaint-affidavit, are already assuming that they
are the legitimate directors of JMD, which is the very issue in the intra-
corporate dispute pending in the RTC, Branch 59.
Ruling of the Court of Appeals
In its assailed Decision, the CA granted the petition for certiorari, disposing as
follows: WHEREFORE, the challenged Orders both dated March 10. 2009 are
hereby ANNULLED and SET ASIDE for having been issued with grave abuse of
discretion amounting to lack or excess of jurisdiction.
SO ORDERED.
The appellate court held that Judge Tiongson-Tabora should have refrained
from determining probable cause since she is well aware of the pendency of the
issue on the validity of JMD's elections in Civil Case No. 6623-R. As the judge
overseeing the JDR of the said intra-corporate dispute, she knew that there was
still doubt as to who the rightfully elected directors of JMD are and, corollarily,
who would have the authority to initiate the criminal proceedings for qualified
theft.17
The CA further noted that even as corporate officers, as they claim to be,
petitioners Dagdagan and Patrick Pacis cannot file the Complaint-Affidavit in
the exercise of corporate powers without authority from the board of directors
under Sec. 23,18 in relation to Sec. 2519 of the Corporation Code.20 Any doubt
cast on the validity of the board elections would then necessarily extend to the
authority of the officers to act.
As further held by the CA:
x x x Since there is doubt in the instant case as to the sufficiency of the authority
of a corporate officer, Judge Tiongson-Tabora should have exercised prudence
by holding the criminal cases in abeyance pending resolution of the intra-
corporate dispute which private respondents themselves instituted.21
Aggrieved, individual petitioners moved for reconsideration, on the main
contention that their election as officers and directors of JMD has already been
sustained by the trial court via its Judgment in Civil Case No. 6623-R dated May
6, 2011. They likewise claimed that the issue on whether or not the R TC,
Branch 7 committed grave abuse of discretion is already rendered moot and
academic by the judge's inhibition in Criminal Case Nos. 29175-R and 29176-R,
and the termination of the JDR proceedings in Civil Case No. 6623-R. Petitioners'
motion, however, proved futile as the appellate court denied the same in its July
15, 2013 Resolution.22 Hence, the instant recourse.
The Issues
Plainly, the resolution of the extant case depends on whether or not there exists
a prejudicial question that could affect the criminal proceedings for qualified
theft against respondents. In the concrete, the issues are (i) whether or not Civil
Case No. 6623-R constituted a prejudicial question warranting the suspension
of the proceedings in Criminal Case Nos. 29175-R and 29176-R; and (ii)
whether or not grave abuse of discretion attended the issuance of the two
assailed March 10, 2009 Orders in Criminal Case Nos. 29175-R and 29176-R.
The Court's Ruling
The petition lacks merit.
The challenged Orders of the trial court
were issued in grave abuse of discretion
We have previously ruled that grave abuse of discretion may arise when a lower
court or tribunal violates or contravenes the Constitution, the law or existing
jurisprudence. By grave abuse of discretion is meant, such capricious and
whimsical exercise of judgment as is equivalent to lack of jurisdiction. The
abuse of discretion must be grave as where the power is exercised in an
arbitrary or despotic manner by reason of passion or personal hostility and
must be so patent and gross as to amount to an evasion of positive duty or to a
virtual refusal to perform the duty enjoined by or to act at all in contemplation
of law. The word "capricious," usually used in tandem with the term "arbitrary,"
conveys the notion of willful and unreasoning action. Thus, when seeking the
corrective hand of certiorari, a clear showing of caprice and arbitrariness in the
exercise of discretion is imperative.23
In the case at bar, the CA correctly ruled that Judge Tiongson-Tabora acted with
grave abuse of discretion when she ordered the arrests of respondents Isip and
Liclican despite the existence of a prejudicial question.
As jurisprudence elucidates, a prejudicial question generally exists in a situation
where a civil action and a criminal action are both pending, and there exists in
the former an issue that must be pre-emptively resolved before the latter may
proceed, because howsoever the issue raised in the civil action is resolved
would be determinative Juris et de Jure of the guilt or innocence of the accused
in the criminal case.24 The rationale behind the principle is to avoid two
conflicting decisions,25 and its existence rests on the concurrence of two
essential elements: (i) the civil action involves an issue similar or intimately
related to the issue raised in the criminal action; and (ii) the resolution of such
issue determines whether or not the criminal action may proceed.26
Here, the CA aptly observed that Civil Case No. 6623-R, the intra-corporate
dispute, posed a prejudicial question to Criminal Case Nos. 29175-R and 29176-
R. To be sure, Civil Case No. 6623-R involves the same parties herein, and is for
nullification of JMD's meetings, election and acts of its directors and officers,
among others. Court intervention was sought to ascertain who between the two
contesting group of officers should rightfully be seated at the company's helm.
Without Civil Case No. 6623-R's resolution, petitioners' authority to commence
and prosecute Criminal Case Nos. 29175-R and 29176-R against respondents
for qualified theft in JMD's behalf remained questionable, warranting the
suspension of the criminal proceedings.
Judge Tiongson-Tabora cannot deny knowledge of the pendency of Civil Case
No. 6623-R as the judge presiding over its JDR. As correctly held by the CA:
Judge Tiongson-Tabora is well-aware of the existence of said prejudicial
question that should have barred the filing of the criminal complaint against
petitioners Liclican and Isip, for the simple reason that a juridical person can
only act through its officers, and the issue in the main case submitted for JDR
before Judge Tiongson-Tabora is one for nullification of meetings, election and
act of directors and officers, injunction and other reliefs Thus, she knows for a
fact that there is a question as to who are the legitimate directors of JMD such
that there is doubt as to whether private respondents are in a position to act for
JMD. (emphasis added)
Verily, the RTC ought to have suspended the proceedings, instead of issuing the
challenged Orders issued by the RTC.
The subsequent resolution of the prejudicial
question did not cure the defect
It may be, as the petitioners pointed out in their motion for reconsideration
filed before the CA, that Civil Case No. 6623-R was eventually resolved in their
favor through a Judgment27 dated May 6, 2011 rendered by the RTC, Branch 59,
the dispositive portion of which reads: WHEREFORE, from all the foregoing
disquisitions, the Court hereby declares that the plaintiffs [petitioners herein]
are the duly elected board of directors and officers of the JM Dominguez
Agronomic Company, Inc. for the year 2008 and hold-over capacity unless here
had already been an election of new officers.
Consequently, all Corporate Acts which the defendants [herein respondents and
one Gerald Cabrera and one Oscar Aquino] have done and performed and all
documents they have executed and issued have no force and effect.
Considering that the amount of Php850,000.00 which defendants have
withdrawn under the account of JM Dominguez Agronomic Company, Inc. from
the Equitable PCI Bank (now Banco de Oro) is the same subject in CC no.
29175-R entitled Pp. vs. Cecilia Liclican and Norma D. Isip for Qualified Theft,
the Court will no longer dwell on the same.
xxxx
SO ORDERED. (emphasis and words in bracket added)
This Judgment has, on June 6, 2011, become final and executory, as per the
Notice of Entry of Judgment issued by the same trial court.28 Evidently,
whatever cloud of doubt loomed over petitioners' actuations has already been
dispelled. Petitioners then postulate that the question on whether or not the
challenged Orders were issued in grave abuse of discretion has already been
rendered moot and academic by the June 6, 2011 ruling and by Judge Tiongson-
Tabora's subsequent inhibition in the criminal proceedings. Consequently, they
argue that their motion for reconsideration should have been granted by the
appellate court.
We are not convinced. Criminal Case Nos. 29175-R and 29176-R are hereby REMANDED to the
Executive Judge of the Regional Trial Court of Baguio City to be re-raffled to one
The resolution of the prejudicial question did not, in context, cure the grave of its branches other than Branch 7.
abuse of discretion already committed. The fact remains that when the RTC,
Branch 7 issued its challenged Orders on March 10, 2009, the Judg1pent in SO ORDERED.
favor of petitioners was not yet rendered. Consequently, there was still, at that
time, a real dispute as to who the rightful set of officers were. Plainly, Judge
Tiongson-Tabora should not have issued the challenged Orders and should
have, instead, suspended the proceedings until Civil Case No. 6623-R was
resolved with finality.

To grant the instant petition and rule that the procedural infirmity has
subsequently been cured either by the Judgment or by Judge Tiongson-Tabora's
inhibition would mean condoning the continuation of the criminal proceedings
despite, at that time, the existence of a prejudicial question. Such condonation
would create a precedent that renders inutile the doctrine on prejudicial
question, such that the court trying the criminal case will be permitted to
proceed with the trial in the aberrant assumption that the resolution of the
prior instituted civil case would benefit the private complainant in the criminal
proceedings. To reiterate, there was no certainty yet on how the RTC, Branch 59
would rule; thus, no assumption on Civil Case No. 6623-R's resolution can be
made when the challenged Orders were issued. Indeed, had the RTC, Branch 59
not given credence to petitioners' arguments, it would have led to an awkward
situation wherein much time and effort is wasted by the RTC, Branch 7 in trying
criminal cases it should not have entertained.

The foregoing notwithstanding, it should be made clear that the nullification of

the March 10, 2009 Orders does not, under the premises.1wphi1 entail the
dismissal of the instituted criminal cases, but would merely result in the
suspension of the proceedings in view of the prejudicial question. However,
given the resolution of the prejudicial question and Judge Tiongson-Tabora's
inhibition, Criminal Case Nos. 29175-R and 29176-R may already proceed, and
ought to be re-raffled to re-determine the existence of probable cause for the
issuance of warrants of arrest against respondents.

WHEREFORE, premises considered, the petition is hereby DENIED for lack of

merit. The Court of Appeals' August 30, 2012 Decision and July 15, 2013
Resolution in CA-G.R. SP No. 108617 are hereby AFFIRMED.