CASES (Applicable To Escalante Case)

1. FLIGHT OR ACCUSED IS AT LARGE

De la Cruz vs. People (G.R. No. 150439, 29 July 2005)

With respect to the fact that the accused-petitioner changed residence several times, allegedly to abort any detection of her whereabouts, the presumption that her flight is indicative of guilt is contradicted by the fact that she came to the office on 27 January 1995, as testified to by the witnesses of the prosecution. Moreover, she attended the hearings of the case on her own accord.  She offered as explanations for her failure to report for work -- the fact that her brother-in-law died, that she became ill, and most importantly, because she was afraid -- for her life, of being framed, or of something else.  The reason for such fear was never fully inquired into, fear being a state of mind and is necessarily subjective.[29] Addressed to the mind of the person, its presence cannot be tested by any hard and fast rule but must instead be viewed in the light of the perception and judgment of the one who feels it at a particular given time.

Miranda vs. Tuliao (486 SCRA 383)

Our pronouncement in Santiago shows a distinction between custody of the law and jurisdiction over the person.  Custody of the law is required before the court can act upon the application for bail, but is not required for the adjudication of other reliefs sought by the defendant where the mere application therefor constitutes a waiver of the defense of lack of jurisdiction over the person of the accused.  Custody of the law is accomplished either by arrest or voluntary surrender, while jurisdiction over the person of the accused is acquired upon his arrest or voluntary appearance.  One can be under the custody of the law but not yet subject to the jurisdiction of the court over his person, such as when a person arrested by virtue of a warrant files a motion before arraignment to quash the warrant.  On the other hand, one can be subject to the jurisdiction of the court over his person, and yet not be in the custody of the law, such as when an accused escapes custody after his trial has commenced.  Being in the custody of the law signifies restraint on the person, who is thereby deprived of his own will and liberty, binding him to become obedient to the will of the law.  Custody of the law is literally custody over the body of the accused.  It includes, but is not limited to, detention.            The statement in Pico v. Judge Combong, Jr., cited by the Court of Appeals should not have been separated from the issue in that case, which is the application for admission to bail of someone not yet in the custody of the law.  The entire paragraph of our pronouncement in Pico reads:

             A person applying for admission to bail must be in the custody of the law or otherwise deprived of his liberty.  A person who has not submitted himself to the jurisdiction of the court has no right to invoke the processes of that court.  Respondent Judge should have diligently ascertained the whereabouts of the applicant and that he indeed had

jurisdiction over the body of the accused before considering the application for bail.

           While we stand by our above pronouncement in Pico insofar as it concerns bail, we clarify that, as a general rule, one who seeks an affirmative relief is deemed to have submitted to the jurisdiction of the court.  As we held in the aforecited case of Santiago, seeking an affirmative relief in court, whether in civil or criminal proceedings, constitutes voluntary appearance.  

Pico deals with an application for bail, where there is the special requirement of the applicant being in the custody of the law.  In Feliciano v. Pasicolan, we held that “[t]he purpose of bail is to secure one’s release and it would be incongruous to grant bail to one who is free.  Thus, ‘bail is the security required and given for the release of a person who is in the custody of law.’”  The rationale behind this special rule on bail is that it discourages and prevents resort to the former pernicious practice wherein the accused could just send another in his stead to post his bail, without recognizing the jurisdiction of the court by his personal appearance therein and compliance with the requirements therefor. 

There is, however, an exception to the rule that filing pleadings seeking affirmative relief constitutes voluntary appearance, and the consequent submission of one’s person to the jurisdiction of the court.  This is in the case of pleadings whose prayer is precisely for the avoidance of the jurisdiction of the court, which only leads to a special appearance.  These pleadings are: (1) in civil cases, motions to dismiss on the ground of lack of jurisdiction over the person of the defendant, whether or not other grounds for dismissal are included; (2) in criminal cases, motions to quash a complaint on the ground of lack of jurisdiction over the person of the accused; and (3) motions to quash a warrant of arrest.  The first two are consequences of the fact that failure to file them would constitute a waiver of the defense of lack of jurisdiction over the person.  The third is a consequence of the fact that it is the very legality of the court process forcing the submission of the person of the accused that is the very issue in a motion to quash a warrant of arrest.            To recapitulate what we have discussed so far, in criminal cases, jurisdiction over the person of the accused is deemed waived by the accused when he files any pleading seeking an affirmative relief, except in cases when he invokes the special jurisdiction of the court by impugning such jurisdiction over his person.  Therefore, in narrow cases involving special appearances, an accused can invoke the processes of the court even though there is neither jurisdiction over the person nor custody of the law.  However, if a person invoking the special jurisdiction of the court applies for bail, he must first submit himself to the custody of the law.            In cases not involving the so-called special appearance, the general rule applies, i.e., the accused is deemed to have submitted himself to the jurisdiction of the court upon seeking affirmative relief.  Notwithstanding this, there is no requirement for him to be in the custody of the law.  The following cases best illustrate this point, where we granted

various reliefs to accused who were not in the custody of the law, but were deemed to have placed their persons under the jurisdiction of the court. Note that none of these cases involve the application for bail, nor a motion to quash an  information due to lack of jurisdiction over the person, nor a motion to quash a warrant of arrest:          

1.     In Allado v. Diokno, on the prayer of the accused in a petition for certiorari on the ground of lack of probable cause, we issued a temporary restraining order enjoining PACC from enforcing the warrant of arrest and the respondent judge therein from further proceeding with the case and, instead, to elevate the records to us.

 2.     In Roberts, Jr. v. Court of Appeals, upon the accused’s Motion to Suspend

Proceedings and to Hold in Abeyance Issuance of Warrants of Arrest on the ground that they filed a Petition for Review with the Department of Justice, we directed respondent judge therein to cease and desist from further proceeding with the criminal case and to defer the issuance of warrants of arrests against the accused.

 3.     In Lacson v. Executive Secretary, on the prayer of the accused in a petition

for certiorari on the ground of lack of jurisdiction on the part of the Sandiganbayan, we directed the Sandiganbayan to transfer the criminal cases to the Regional Trial Court even before the issuance of the warrants of arrest.

  We hold that the circumstances forcing us to require custody of the law in applications for bail are not present in motions to quash the warrant of arrest.  If we allow the granting of bail to persons not in the custody of the law, it is foreseeable that many persons who can afford the bail will remain at large, and could elude being held to answer for the commission of the offense if ever he is proven guilty.  On the other hand, if we allow the quashal of warrants of arrest to persons not in the custody of the law, it would be very rare that a person not genuinely entitled to liberty would remain scot-free.  This is because it is the same judge who issued the warrant of arrest who will decide whether or not he followed the Constitution in his determination of probable cause, and he can easily deny the motion to quash if he really did find probable cause after personally examining the records of the case.             Moreover, pursuant to the presumption of regularity of official functions, the warrant continues in force and effect until it is quashed and therefore can still be enforced on any day and at any time of the day and night.  Furthermore, the continued absence of the accused can be taken against him in the determination of probable cause, since flight is indicative of guilt.            In fine, as much as it is incongruous to grant bail to one who is free, it is likewise incongruous to require one to surrender his freedom before asserting it.  Human rights enjoy a higher preference in the hierarchy of rights than property rights, demanding that due process in the deprivation of liberty must come before its taking and not after.

2. DETERMINATION OF PROBABLE CAUSE

People of the Philippines vs. Castillo ( G.R. No. 171188, June 19, 2009)

There are two kinds of determination of probable cause:  executive and judicial. The executive determination of probable cause is one made during preliminary investigation.  It is a function that properly pertains to the public prosecutor who is given a broad discretion to determine whether probable cause exists and to charge those whom he believes to have committed the crime as defined by law and thus should be held for trial.  Otherwise stated, such official has the quasi-judicial authority to determine whether or not a criminal case must be filed in court.  Whether or not that function has been correctly discharged by the public prosecutor, i.e., whether or not he has made a correct ascertainment of the existence of probable cause in a case, is a matter that the trial court itself does not and may not be compelled to pass upon.          The judicial determination of probable cause, on the other hand, is one made by the judge to ascertain whether a warrant of arrest should be issued against the accused. The judge must satisfy himself that based on the evidence submitted, there is necessity for placing the accused under custody in order not to frustrate the ends of justice.  If the judge finds no probable cause, the judge cannot be forced to issue the arrest warrant.          Corollary to the principle that a judge cannot be compelled to issue a warrant of arrest if he or she deems that there is no probable cause for doing so, the judge in turn should not override the public prosecutor’s determination of probable cause to hold an accused for trial on the ground that the evidence presented to substantiate the issuance of an arrest warrant was insufficient.  It must be stressed that in our criminal justice system, the public prosecutor exercises a wide latitude of discretion in determining whether a criminal case should be filed in court, and that courts must respect the exercise of such discretion when the information filed against the person charged is valid on its face, and that no manifest error or grave abuse of discretion can be imputed to the public prosecutor.

Thus, absent a finding that an information is invalid on its face or that the prosecutor committed manifest error or grave abuse of discretion, a judge’s determination of probable cause is limited only to the judicial kind or for the purpose of deciding whether  the arrest warrants should be issued against the accused.

In the instant case, there is no question that both the original and amended Informations were valid on their face because they complied with Section 6, Rule 110 of the Rules of Court.  Also, a scrutiny of the Resolution dated August 22, 2002 of the Ombudsman which precipitated the filing of the original Information and the subsequent Memorandum dated August 4, 2004 recommending the amendment of the Information would likewise show that the finding of probable cause against the respondents were sufficiently supported by substantial evidence.  As a matter of fact, in the Resolution dated August 22, 2002, the Ombudsman took pains to mention each element of the crime of violation of Section 3(e) of Rep. Act No. 3019 and then one by one adequately explained how and why those elements

were satisfied.  Hence, as the amended Information was valid on its face and there is no manifest error or arbitrariness on the part of the Ombudsman, the Sandiganbayan erred in making an executive determination of probable cause when it overturned the Ombudsman’s own determination.  And this is true even if the Sandiganbayan was no longer satisfied with the evidence presented to sustain the effectivity of the arrest warrants previously issued for the original Information.  The Sandiganbayan could have just revoked the previously issued arrest warrants and required the Ombudsman to submit additional evidence for the purpose of issuing the arrest warrants based on the amended Information.

Moreover, it was clearly premature on the part of the Sandiganbayan to make a determinative finding prior to the parties’ presentation of their respective evidence that there was no bad faith and manifest partiality on the respondents’ part and undue injury on the part of the complainant.  In Go v. Fifth Division, Sandiganbayan, we held that “it is well established that the presence or absence of the elements of the crime is evidentiary in nature and is a matter of defense that may be best passed upon after a full-blown trial on the merits.”  Also, it would be unfair to expect the prosecution to present all the evidence needed to secure the conviction of the accused upon the filing of the information against the latter.  The reason is found in the nature and objective of a preliminary investigation.  Here, the public prosecutors do not decide whether there is evidence beyond reasonable doubt of the guilt of the person charged; they merely determine whether there is sufficient ground to engender a well-founded belief that a crime has been committed and that respondent is probably guilty thereof, and should be held for trial.         

The Sandiganbayan and all courts for that matter should always remember the judiciary’s standing policy on non-interference in the Office of the Ombudsman’s exercise of its constitutionally mandated powers.  This policy is based not only upon respect for the investigatory and prosecutory powers granted by the Constitution to the Office of the Ombudsman but upon practicality as well, considering that otherwise, the functions of the courts will be grievously hampered by innumerable petitions regarding complaints filed before it, and in much the same way that the courts would be extremely swamped if they were to be compelled to review the exercise of discretion on the part of the prosecutors each time they decide to file an information in court or dismiss a complaint by a private complainant.

Leviste vs. Alameda (G.R. No. 182677, August 3, 2010)

There are two kinds of determination of probable cause:  executive and judicial.  The executive determination of probable cause is one made during preliminary investigation.  It is a function that properly pertains to the public prosecutor who is given a broad discretion to determine whether probable cause exists and to charge those whom he believes to have committed the crime as defined by law and thus should be held for trial.  Otherwise stated, such official has the quasi-judicial authority to determine whether or not a criminal case must be filed in court.  Whether that function has been correctly discharged by the public prosecutor, i.e., whether he has made a correct ascertainment of

the existence of probable cause in a case, is a matter that the trial court itself does not and may not be compelled to pass upon.

 The judicial determination of probable cause is one made by the judge to ascertain

whether a warrant of arrest should be issued against the accused.  The judge must satisfy himself that based on the evidence submitted, there is necessity for placing the accused under custody in order not to frustrate the ends of justice.  If the judge finds no probable cause, the judge cannot be forced to issue the arrest warrant.  Paragraph (a), Section 5, Rule 112 of the Rules of Court outlines the procedure to be followed by the RTC.

 To move the court to conduct a judicial determination of probable cause is a mere

superfluity, for with or without such motion, the judge is duty-bound to personally evaluate the resolution of the public prosecutor and the supporting evidence.  In fact, the task of the presiding judge when the Information is filed with the court is first and foremost to determine the existence or non-existence of probable cause for the arrest of the accused. 

             What the Constitution underscores is the exclusive and personal responsibility of the issuing judge to satisfy himself of the existence of probable cause.  But the judge is not required to personally examine the complainant and his witnesses.  Following established doctrine and procedure, he shall (1) personally evaluate the report and the supporting documents submitted by the prosecutor regarding the existence of probable cause, and on the basis thereof, he may already make a personal determination of the existence of probable cause; and (2) if he is not satisfied that probable cause exists, he may disregard the prosecutor’s report and require the submission of supporting affidavits of witnesses to aid him in arriving at a conclusion as to the existence of probable cause. (emphasis and underscoring supplied)   

          The rules do not require cases to be set for hearing to determine probable cause for the issuance of a warrant of arrest of the accused before any warrant may be issued.  Petitioner thus cannot, as a matter of right, insist on a hearing for judicial determination of probable cause.  Certainly, petitioner “cannot determine beforehand how cursory or exhaustive the [judge's] examination of the records should be [since t]he extent of the judge’s examination depends on the exercise of his sound discretion as the circumstances of the case require.”  In one case, the Court emphatically stated:  

            The periods provided in the Revised Rules of Criminal Procedure are mandatory, and as such, the judge must determine the presence or absence of probable cause within such periods.  The Sandiganbayan’s determination of probable cause is made ex parte and is summary in nature, not adversarial.   The Judge should not be stymied and distracted from his determination of probable cause by needless motions for determination of probable cause filed by the accused. (emphasis and underscoring supplied)

3. PRELIMINARY INVESTIGATION

Collantes v. Marcelo , G.R. Nos.   167006-07, 14 August 2007, 530 SCRA 142. citing Baylon v. Office of the Ombudsman, 423 Phil. 705, 709 (2001)     and Venus v. Desierto, 358 Phil. 675, 699-700 (1998).

Agencies tasked with the preliminary investigation and prosecution of crimes should never forget that the purpose of a preliminary investigation is to secure the innocent against hasty, malicious and oppressive prosecution, and to protect one from an open and public accusation of crime, from the trouble, expense and anxiety of a public trial, and also to protect the State from useless and expensive trials. It is, therefore, imperative upon such agencies to relieve any person from the trauma of going through a trial once it is ascertained that the evidence is insufficient to sustain a prima facie case or that no probable cause exists to form a sufficient belief as to the guilt of the accused.

Leviste vs. Alameda (G.R. No. 182677, August 3, 2010)

A preliminary investigation is required before the filing of a complaint or information for an offense where the penalty prescribed by law is at least four years, two months and one day without regard to fine.  As an exception, the rules provide that there is no need for a preliminary investigation in cases of a lawful arrest without a warrant involving such type of offense, so long as an inquest, where available, has been conducted. 

 Inquest is defined as an informal and summary investigation conducted by a

public prosecutor in criminal cases involving persons arrested and detained without the benefit of a warrant of arrest issued by the court for the purpose of determining whether said persons should remain under custody and correspondingly be charged in court. 

 It is imperative to first take a closer look at the predicament of both the arrested

person and the private complainant during the brief period of inquest, to grasp the respective remedies available to them before and after the filing of a complaint or information in court.

 BEFORE THE FILING OF COMPLAINT OR INFORMATION IN COURT, the

private complainant may proceed in coordinating with the arresting officer and the inquest officer during the latter’s conduct of inquest.  Meanwhile, the arrested person has the option to avail of a 15-day preliminary investigation, provided he duly signs a waiver of any objection against delay in his delivery to the proper judicial authorities under Article 125 of the Revised Penal Code.  For obvious reasons, this remedy is not available to the private complainant since he cannot waive what he does not have.  The benefit of the provisions of Article 125, which requires the filing of a complaint or information with the proper judicial authorities within the applicable period, belongs to the arrested person.

 

The accelerated process of inquest, owing to its summary nature and the attendant risk of running against Article 125, ends with either the prompt filing of an information in court or the immediate release of the arrested person.  Notably, the rules on inquest do not provide for a motion for reconsideration.

 Contrary to petitioner’s position that private complainant should have appealed to

the DOJ Secretary, such remedy is not immediately available in cases subject of inquest.  Noteworthy is the proviso that the appeal to the DOJ Secretary is by “petition by a

proper party under such rules as the Department of Justice may prescribe.”  The rule referred to is the 2000 National Prosecution Service Rule on Appeal, Section 1 of which provides that the Rule shall “apply to appeals from resolutions x x x in cases subject of preliminary investigation/ reinvestigation.”  In cases subject of inquest, therefore, the private party should first avail of a preliminary investigation or reinvestigation, if any, before elevating the matter to the DOJ Secretary.    

 In case the inquest proceedings yield no probable cause, the private complainant

may pursue the case through the regular course of a preliminary investigation.   ONCE A COMPLAINT OR INFORMATION IS FILED IN COURT, the rules

yet provide the accused with another opportunity to ask for a preliminary investigation within five days from the time he learns of its filing.  The Rules of Court and the New Rules on Inquest are silent, however, on whether the private complainant could invoke, as respondent heirs of the victim did in the present case, a similar right to ask for a reinvestigation. 

 The Court holds that the private complainant can move for reinvestigation, subject

to and in light of the ensuing disquisition.  All criminal actions commenced by a complaint or information shall be

prosecuted under the direction and control of the public prosecutor.  The private complainant in a criminal case is merely a witness and not a party to the case and cannot, by himself, ask for the reinvestigation of the case after the information had been filed in court, the proper party for that being the public prosecutor who has the control of the prosecution of the case.  Thus, in cases where the private complainant is allowed to intervene by counsel in the criminal action, and is granted the authority to prosecute, the private complainant, by counsel and with the conformity of the public prosecutor, can file a motion for reinvestigation.

 In fact, the DOJ instructs that before the arraignment of the accused, trial

prosecutors must “examine the Information vis-à-vis the resolution of the investigating prosecutor in order to make the necessary corrections or revisions and to ensure that the information is sufficient in form and substance.”

             x x x Since no evidence has been presented at that stage, the error would appear or be discoverable from a review of the records of the

preliminary investigation.  Of course, that fact may be perceived by the trial judge himself but, again, realistically it will be the prosecutor who can initially determine the same.  That is why such error need not be manifest or evident, nor is it required that such nuances as offenses includible in the offense charged be taken into account.  It necessarily follows, therefore, that the prosecutor can and should institute remedial measures[.] (emphasis and underscoring supplied) The prosecution of crimes appertains to the executive department of the

government whose principal power and responsibility is to see that our laws are faithfully executed.  A necessary component of this power to execute our laws is the right to prosecute their violators.  The right to prosecute vests the prosecutor with a wide range of discretion – the discretion of what and whom to charge, the exercise of which depends on a smorgasbord of factors which are best appreciated by prosecutors. 

 The prosecution’s discretion is not boundless or infinite, however.  The standing

principle is that once an information is filed in court, any remedial measure such as a reinvestigation must be addressed to the sound discretion of the court.  Interestingly, petitioner supports this view.  Indeed, the Court ruled in one case that:

 The rule is now well settled that once a complaint or information is

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

 x x x x In such an instance, before a re-investigation of the case may be

conducted by the public prosecutor, the permission or consent of the court must be secured.  If after such re-investigation the prosecution finds a cogent basis to withdraw the information or otherwise cause the dismissal of the case, such proposed course of action may be taken but shall likewise be addressed to the sound discretion of the court. (underscoring supplied)

 While Abugotal v. Judge Tiro held that to ferret out the truth, a trial is to be

preferred to a reinvestigation, the Court therein recognized that a trial court may, where

the interest of justice so requires, grant a motion for reinvestigation of a criminal case pending before it.

 Once the trial court grants the prosecution’s motion for reinvestigation, the former

is deemed to have deferred to the authority of the prosecutorial arm of the Government.  Having brought the case back to the drawing board, the prosecution is thus equipped with discretion – wide and far reaching – regarding the disposition thereof, subject to the trial court’s approval of the resulting proposed course of action.

 Since a reinvestigation may entail a modification of the criminal information as

what happened in the present case, the Court’s holding is bolstered by the rule on amendment of an information under Section 14, Rule 110 of the Rules of Court:

             A complaint or information may be amended, in form or in substance, without leave of court, at any time before the accused enters his plea.  After the plea and during the trial, a formal amendment may only be made with leave of court and when it can be done without causing prejudice to the rights of the accused.

 However, any amendment before plea, which downgrades the

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

 If it appears at any time before judgment that a mistake has been

made in charging the proper offense, the court shall dismiss the original complaint or information upon the filing of a new one charging the proper offense in accordance with section 11, Rule 119, provided the accused would not be placed in double jeopardy.  The court may require the witnesses to give bail for their appearance at the trial. (emphasis supplied)

           In fine, before the accused enters a plea, a formal or substantial amendment of the complaint or information may be made without leave of court.  After the entry of a plea, only a formal amendment may be made but with leave of court and only if it does not prejudice the rights of the accused.  After arraignment, a substantial amendment is proscribed except if the same is beneficial to the accused.            It must be clarified though that not all defects in an information are curable by amendment prior to entry of plea.  An information which is void ab initio cannot be amended to obviate a ground for quashal.  An amendment which operates to vest jurisdiction upon the trial court is likewise impermissible.

 

 Considering the general rule that an information may be amended even in substance and even without leave of court at any time before entry of plea, does it mean that the conduct of a reinvestigation at that stage is a mere superfluity?

 It is not.

           Any remedial measure springing from the reinvestigation – be it a complete disposition or an intermediate modification of the charge – is eventually addressed to the sound discretion of the trial court, which must make an independent evaluation or assessment of the merits of the case.  Since the trial court would ultimately make the determination on the proposed course of action, it is for the prosecution to consider whether a reinvestigation is necessary to adduce and review the evidence for purposes of buttressing the appropriate motion to be filed in court.            More importantly, reinvestigation is required in cases involving a substantial amendment of the information.  Due process of law demands that no substantial amendment of an information may be admitted without conducting another or a new preliminary investigation.  In Matalam v. The 2nd Division of the Sandiganbayan, the Court ruled that a substantial amendment in an information entitles an accused to another preliminary investigation, unless the amended information contains a charge related to or is included in the original Information.            The question to be resolved is whether the amendment of the Information from homicide to murder is considered a substantial amendment, which would make it not just a right but a duty of the prosecution to ask for a preliminary investigation.           The Court answers in the affirmative.

             A substantial amendment consists of the recital of facts constituting the offense charged and determinative of the jurisdiction of the court.  All other matters are merely of form.  The following have been held to be mere formal amendments: (1) new allegations which relate only to the range of the penalty that the court might impose in the event of conviction; (2) an amendment which does not charge another offense different or distinct from that charged in the original one; (3) additional allegations which do not alter the prosecution’s theory of the case so as to cause surprise to the accused and affect the form of defense he has or will assume; (4) an amendment which does not adversely affect any substantial right of the accused; and (5) an amendment that merely adds specifications to eliminate vagueness in the information and not to introduce new and material facts, and merely states with additional precision something which is already contained in the original information and which adds nothing essential for conviction for the crime charged.              The test as to whether a defendant is prejudiced by the amendment is whether a defense under the information as it originally stood would be

available after the amendment is made, and whether any evidence defendant might have would be equally applicable to the information in the one form as in the other.  An amendment to an information which does not change the nature of the crime alleged therein does not affect the essence of the offense or cause surprise or deprive the accused of an opportunity to meet the new averment had each been held to be one of form and not of substance. (emphasis and underscoring supplied) Matalam adds that the mere fact that the two charges are related does not

necessarily or automatically deprive the accused of his right to another preliminary investigation.  Notatu dignum is the fact that both the original Information and the amended Information in Matalam were similarly charging the accused with violation of Section 3(e) of the Anti-Graft and Corrupt Practices Act.

 In one case, it was squarely held that the amendment of the Information from

homicide to murder is “one of substance with very serious consequences.”  The amendment involved in the present case consists of additional averments of the circumstances of treachery, evident premeditation, and cruelty, which qualify the offense charged from homicide to murder.  It being a new and material element of the offense, petitioner should be given the chance to adduce evidence on the matter.  Not being merely clarificatory, the amendment essentially varies the prosecution’s original theory of the case and certainly affects not just the form but the weight of defense to be mustered by petitioner.            The Court distinguishes the factual milieus in Buhat v. CA and Pacoy v. Cajigal, wherein the amendment of the caption of the Information from homicide to murder was not considered substantial because there was no real change in the recital of facts constituting the offense charged as alleged in the body of the Information, as the allegations of qualifying circumstances were already clearly embedded in the original Information.  Buhat pointed out that the original Information for homicide already alleged the use of superior strength, while Pacoy states that the averments in the amended Information for murder are exactly the same as those already alleged in the original Information for homicide.  None of these peculiar circumstances obtains in the present case.            Considering that another or a new preliminary investigation is required, the fact that what was conducted in the present case was a reinvestigation does not invalidate the substantial amendment of the Information.  There is no substantial distinction between a preliminary investigation and a reinvestigation since both are conducted in the same manner and for the same objective of determining whether there exists sufficient ground to engender a well-founded belief that a crime has been committed and the respondent is probably guilty thereof and should be held for trial.  What is essential is that petitioner was placed on guard to defend himself from the charge of murder after the claimed circumstances were made known to him as early as the first motion.  

          Petitioner did not, however, make much of the opportunity to present countervailing evidence on the proposed amended charge.  Despite notice of hearing, petitioner opted to merely observe the proceedings and declined to actively participate, even with extreme caution, in the reinvestigation.  Mercado v. Court of Appeals states that the rules do not even require, as a condition sine qua non to the validity of a preliminary investigation, the presence of the respondent as long as efforts to reach him were made and an opportunity to controvert the complainant’s evidence was accorded him.  4. PRELIMINARY INQUIRY VS. PRELIMINARY INVESTIGATION

AAA vs. Carbonell, G.R. No. 171465; June 8, 2007

He claims that under Section 2, Article III of the 1987 Constitution, no warrant of arrest shall issue except upon probable cause “to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce.”  

However, in the leading case of Soliven v. Makasiar, the Court explained that this constitutional provision does not mandatorily require the judge to personally examine the complainant and her witnesses.  Instead, he may opt to personally evaluate the report and supporting documents submitted by the prosecutor or he may disregard the prosecutor’s report and require the submission of supporting affidavits of witnesses.  Thus:

 The addition of the word “personally” after the word “determined”

and the deletion of the grant of authority by the 1973 Constitution to issue warrants to “other responsible officers as may be authorized by law,” has apparently convinced petitioner Beltran that the Constitution now requires the judge to personally examine the complainant and his witnesses in his determination of probable cause for the issuance of warrants of arrest.  This is not an accurate interpretation.

 What the Constitution underscores is the exclusive and personal

responsibility of the issuing judge to satisfy himself of the existence of probable cause.  In satisfying himself of the existence of probable cause for the issuance of a warrant of arrest, the judge is not required to personally examine the complainant and his witnesses.  Following established doctrine and procedure, he shall: (1) personally evaluate the report and the supporting documents submitted by the fiscal regarding the existence of probable cause and, on the basis thereof, issue a warrant of arrest; or (2) if on the basis thereof he finds no probable cause, he may disregard the fiscal’s report and require the submission of supporting affidavits of witnesses to aid him in arriving at a conclusion as to the existence of probable cause.

 

Sound policy dictates this procedure, otherwise judges would by unduly laden with the preliminary examination and investigation of criminal complaints instead of concentrating on hearing and deciding cases filed before their courts.

 We reiterated the above ruling in the case of Webb v. De Leon, where we held that

before issuing warrants of arrest, judges merely determine the probability, not the certainty, of guilt of an accused.  In doing so, judges do not conduct a de novo hearing to determine the existence of probable cause.  They just personally review the initial determination of the prosecutor finding a probable cause to see if it is supported by substantial evidence. 

 It is well to remember that there is a distinction between the preliminary inquiry

which determines probable cause for the issuance of a warrant of arrest and the preliminary investigation proper which ascertains whether the offender should be held for trial or be released.  The determination of probable cause for purposes of issuing the warrant of arrest is made by the judge.  The preliminary investigation proper – whether or not there is reasonable ground to believe that the accused is guilty of the offense charged – is the function of the investigating prosecutor. 

 True, there are cases where the circumstances may call for the judge’s personal

examination of the complainant and his witnesses. But it must be emphasized that such personal examination is not mandatory and indispensable in the determination of probable cause for the issuance of a warrant of arrest.  The necessity arises only when there is an utter failure of the evidence to show the existence of probable cause.   Otherwise, the judge may rely on the report of the investigating prosecutor, provided that he likewise evaluates the documentary evidence in support thereof.

 Indeed, what the law requires as personal determination on the part of the judge is

that he should not rely solely on the report of the investigating prosecutor.  In Okabe v. Gutierrez, we stressed that the judge should consider not only the report of the investigating prosecutor but also the affidavit and the documentary evidence of the parties, the counter-affidavit of the accused and his witnesses, as well as the transcript of stenographic notes taken during the preliminary investigation, if any, submitted to the court by the investigating prosecutor upon the filing of the Information.  If the report, taken together with the supporting evidence, is sufficient to sustain a finding of probable cause, it is not compulsory that a personal examination of the complainant and his witnesses be conducted.

 In this case, respondent Judge Carbonell dismissed Criminal Case No. 6983

without taking into consideration the June 11, 2003 Resolution of 2nd Assistant Provincial Prosecutor Georgina Hidalgo, the October 13, 2003 Resolution of the panel of prosecutors, and the July 1, 2005 Resolution of the Department of Justice, all of which sustain a finding of probable cause against Arzadon.  Moreover, he failed to evaluate the evidence in support thereof.  Respondent judge’s finding of lack of probable cause was

premised only on the complainant’s and her witnesses’ absence during the hearing scheduled by the respondent judge for the judicial determination of probable cause. 

 

5. MOTION TO QUASH – LACK OF AUTHORITY TO FILE INFORMATION

People vs. Garfin, G.R. No. 153176. March 29, 2004

We now come to the other issue: whether the prior written authority and approval of the city or provincial prosecutor or chief state prosecutor is necessary in filing the information at bar.

Petitioner takes the unbending view that the approval of the city or provincial prosecutor is no longer required. It is contended that the Regional State Prosecutor has already directed the city or provincial prosecutor to inhibit from handling SSS cases. Petitioner cites the letter of Regional State Prosecutor Santiago M. Turingan to SSS Regional Director in Naga City dated June 6, 1997 and copies of Regional Orders No. 97-024-A and 2001-033 dated July 14, 1997 and September 28, 2001, respectively, showing the designation of State Prosecutor Tolentino as special prosecutor for SSS cases in Region V. Petitioner relies on Galvez, et al. v. Court of Appeals, et al. [237 SCRA 685 (1994)] and Sanchez v. Demetriou, et al. [227 SCRA 627 (1993)] to prop up its contention that given the designation of State Prosecutor Tolentino, the city prosecutor need not participate in the filing and prosecution of the information in the case at bar.

We disagree. Under Presidential Decree No. 1275, the powers of a Regional State Prosecutor are as follows:

Sec. 8.            The Regional State Prosecution Office: Functions of Regional State Prosecutor. - The Regional State Prosecutor shall, under the control of the Secretary of Justice, have the following functions:

a)        Implement policies, plans, programs, memoranda, orders, circulars and rules and regulations of the Department of Justice relative to the investigation and prosecution of criminal cases in his region.

b)        Exercise immediate administrative supervision over all provincial and city fiscals and other prosecuting officers of provinces and cities comprised within his region.

c)        Prosecute any case arising within the region.

d)        With respect to his regional office and the offices of the provincial and city fiscals within his region, he shall:

1)              Appoint such member of subordinate officers and employees as may be necessary; and approve transfers of subordinate personnel within the jurisdiction of the regional office.

2)              Investigate administrative complaints against fiscals and other prosecuting officers within his region and submit his recommendation thereon to the Secretary of Justice who shall, after review thereof, submit the appropriate recommendation to the Office of the President: Provided, that where the Secretary of Justice finds insufficient grounds for the filing of charges, he may render a decision of dismissal thereof.

3)              Investigate administrative complaints against subordinate personnel of the region and submit his recommendations thereon to the Secretary of Justice who shall have the authority to render decision thereon. (emphases supplied)

The power of administrative supervision is limited to “the authority of the department or its equivalent to generally oversee the operations of such agencies and to insure that they are managed effectively, efficiently and economically but without interference with day-to-day activities; or require the submission of reports and cause the conduct of management audit, performance evaluation and inspection to determine compliance with policies, standards and guidelines of the department; to take such action as may be necessary for the proper performance of official functions, including rectification of violations, abuses and other forms of maladministration; and to review and pass upon budget proposals of such agencies but may not increase or add to them.” This is distinguished from the power of “supervision and control” which includes the authority “to act directly whenever a specific function is entrusted by law or regulation to a subordinate; direct the performance of duty; restrain the commission of acts; review, approve, reverse or modify acts and decisions of subordinate officials or units; determine priorities in the execution of plans and programs; and prescribe standards, guidelines, plans and programs.”

The Regional State Prosecutor is clearly vested only with the power of administrative supervision. As administrative supervisor, he has no power to direct the city and provincial prosecutors to inhibit from handling certain cases. At most, he can request for their inhibition. Hence, the said directive of the regional state prosecutor to the city and provincial prosecutors is questionable to say the least.

Petitioner cannot lean on the cases of Galvez and Sanchez. In those cases, the special prosecutors were acting under the directive of the Secretary of Justice. They were appointed in accordance with law. Nowhere in P.D. No. 1275 is the regional state prosecutor granted the power to appoint a special prosecutor armed with the authority to file an information without the prior written authority or approval of the city or provincial prosecutor or chief state prosecutor. P.D. No. 1275 provides the manner by which special prosecutors are appointed, to wit:

Sec. 15. Special Counsels. - Whenever the exigencies of the service require the creation of positions of additional counsel to assist provincial and city fiscals in the discharge of their duties, positions of Special Counsels may be created by any province or city, subject to the approval of the Secretary of Justice, and with salaries chargeable against provincial or city funds. The Secretary of Justice shall appoint said Special Counsels, upon recommendation of the provincial or city fiscal and regional state prosecutors concerned, either on permanent or temporary basis.

Special Counsel shall be appointed from members of the bar and shall be allowed not more than the salary rate provided in this Decree for the lowest rank or grade of assistant fiscal in the province or city where assigned. (emphases supplied)

Under Department Order No. 318, “Defining the authority, duties and responsibilities of regional state prosecutors,” then Acting Secretary of Justice Silvestre H. Bello III ordered the appointed regional state prosecutors (which included Regional State Prosecutor Turingan for Region V) to, among others, “(i)nvestigate and/or prosecute, upon the directive of the Secretary of Justice, specific criminal cases filed within the region.” (emphasis supplied)

In the case at bar, there is no pretense that a directive was issued by the Secretary of Justice to Regional State Prosecutor Turingan to investigate and/or prosecute SSS cases filed within his territorial jurisdiction. A bare reading of the alleged letter of commendation by then Secretary Hernando Perez would show that it does not amount to a directive or even a recognition of this authority. In fact, while the letter of Secretary Perez commends the efforts of Regional State Prosecutor Turingan in successfully prosecuting SSS cases, it also negates his authority to prosecute them. Secretary Perez called the Regional State Prosecutor’s attention to DOJ Circular No. 27, series of 2001, which states that all important cases of the SSS should be referred to the Office of the Government Corporate Counsel. Thus, Regional State Prosecutor Turingan cannot be considered a special prosecutor within the meaning of the law.

Petitioner argues that the word “may” is permissive. Hence, there are cases when prior written approval is not required, and this is one such instance. This is too simplistic an interpretation. Whether the word “may” is mandatory or directory depends on the context of its use. We agree with the OSG that the use of the permissive word “may” should be read together with the other provisions in the same section of the Rule. The paragraph immediately preceding the quoted provision shows that the word “may” is mandatory. It states:

Sec. 4, Rule 112. –  x x x

Within five (5) days from his resolution, he (investigating prosecutor) shall forward the record of the case to the provincial or city prosecutor or chief state prosecutor, or to the Ombudsman or his deputy in cases of offenses cognizable by the Sandiganbayan in the exercise of its original jurisdiction. They shall act on the resolution within ten (10) days from their receipt thereof and shall immediately inform the parties of such action. (emphasis supplied)

Having settled that the prior authority and approval of the city, provincial or chief state prosecutor should have been obtained, we shall now resolve the more important issue: whether the lack of prior written approval of the city, provincial or chief state prosecutor in the filing of an information is a defect in the information that is waived if not raised as an objection before arraignment.

We hold that it is not.

The provisions in the 2000 Revised Rules of Criminal Procedure that demand illumination are Sections 3 and 9 of Rule 117 in relation to paragraph 3, Section 4 of Rule 112, to wit:

Rule 117, Section 3. Grounds.—The accused may move to quash the complaint or information on any of the following grounds:

(a)  That the facts charged do not constitute an offense; (b)      That the court trying the case has no jurisdiction over the offense charged;(c)       That the court trying the case has no jurisdiction over the person of the accused;(d)      That the officer who filed the information had no authority to do so;(e)      That it does not conform substantially to the prescribed form;(f)        That more than one offense is charged except when a single punishment for various offenses is prescribed by law;(g)      That the criminal action or liability has been extinguished;(h)      That it contains averments which, if true, would constitute a legal excuse or justification; and(i)        That the accused has been previously convicted or acquitted of the offense charged, or the case against him was dismissed or otherwise terminated without his express consent.

xxx xxx xxx

Section 9. Failure to move to quash or to allege any ground therefor.—The failure of the accused to assert any ground of a motion to quash before he pleads to the complaint or information, either because he did not file a motion to quash or failed to allege the same in said motion,

shall be deemed a waiver of any objections except those based on the grounds provided for in paragraphs (a), (b), (g), and (i) of section 3 of this Rule. (emphasis supplied)

Rule 112, Section 4, paragraph 3 provides, viz:

No complaint or information may be filed or dismissed by an investigating prosecutor without the prior written authority or approval of the provincial or city prosecutor or chief state prosecutor or the Ombudsman or his deputy. (emphasis supplied)

Private respondent and the OSG take the position that the lack of prior authority or approval by the city or provincial prosecutor or chief state prosecutor is an infirmity in the information that prevented the court from acquiring jurisdiction over the case. Since lack of jurisdiction is a defect that may be raised as an objection anytime even after arraignment, the respondent judge did not err in granting the motion to dismiss based on this ground. As basis, they cite the case of Villa v. Ibañez, et al. where we held, viz:

The defendant had pleaded to an information before he filed a motion to quash, and it is contended that by his plea he waived all objections to the informations. The contention is correct as far as formal objections to the pleadings are concerned. But by clear implication, if not by express provision of section 10 of Rule 113 of the Rules of Court (now Section 9 of Rule 117), and by a long line of uniform decisions, questions of want of jurisdiction may be raised at any stage of the proceeding. Now, the objection to the respondent’s actuations goes to the very foundation of the jurisdiction. It is a valid information signed by a competent officer which, among other requisites, confers jurisdiction on the court over the person of the accused and the subject matter of the accusation. In consonance with this view, an infirmity in the information cannot be cured by silence, acquiescence, or even by express consent. (emphasis supplied)

The case of Villa is authority for the principle that lack of authority on the part of the filing officer prevents the court from acquiring jurisdiction over the case. Jurisdiction over the subject matter is conferred by law while jurisdiction over the case is invested by the act of plaintiff and attaches upon the filing of the complaint or information. Hence, while a court may have jurisdiction over the subject matter, like a violation of the SSS Law, it does not acquire jurisdiction over the case itself until its jurisdiction is invoked with the filing of the information.

In the United States, an information has been held as a jurisdictional requirement upon which a defendant stands trial. Thus, it has been ruled that in the absence of probable cause, the court lacks jurisdiction to try the criminal offense. In our jurisdiction, we have similarly held that:

While the choice of the court where to bring an action, where there are two or more courts having concurrent jurisdiction thereon, is a matter of procedure and not jurisdiction, as suggested by appellant, the moment such choice has been exercised, the matter becomes jurisdictional. Such choice is deemed made when the proper complaint or information is filed with the court having jurisdiction over the crime, and said court acquires jurisdiction over the person of the defendant, from which time the right and power of the court to try the accused attaches. (citations omitted) It is not for the defendant to exercise that choice, which is lodged upon those who may validly file or subscribe to the complaint or information under sections 2 and 3 of Rule 106 of the Rules of Court. (emphasis supplied)

A closer look at Villa would be useful in resolving the issue at hand. In that case, Atty. Abelardo Subido, Chief of the Division of Investigation in the Office of the Mayor of Manila, was appointed by the Secretary of Justice as special counsel to assist the City Fiscal of Manila in the cases involving city government officials or employees. Pursuant to his appointment, Atty. Subido filed an information against Pedro Villa for falsification of a payroll. Atty. Subido’s authority to file the information was challenged on the ground that he was disqualified for appointment under Section 1686 of the Revised Administrative Code, as amended by Section 4 of Commonwealth Act No. 144, to wit:

SEC. 1686.   Additional counsel to assist fiscal. — The Secretary of Justice may appoint any lawyer, being either a subordinate from his office or a competent person not in the public service, temporarily to assist a fiscal or prosecuting attorney in the discharge of his duties, and with the same authority therein as might be exercised by the Attorney General or Solicitor General.

We held, viz:

Appointments by the Secretary of Justice in virtue of the foregoing provisions of the Revised Administrative Code, as amended, were upheld in Lo Cham vs. Ocampo et al., 44 Official Gazette, 458, and Go Cam et al., vs. Gatmaitan et al., (47 Official Gazette, 5092). But in those cases, the appointees were officials or employees in one or another of the bureaus or offices under the Department of Justice, and were rightly considered subordinates in the office of the Secretary of Justice within the meaning of section 1686, ante.

The case at bar does not come within the rationale of the above decisions. Attorney Subido is a regular officer or employee in the Department of Interior, more particularly in the City Mayor’s office. For this reason, he belongs to the class of persons disqualified for appointment to the post of special counsel.

That to be eligible as special counsel to aid a fiscal the appointee must be either an employee or officer in the Department of Justice is so manifest from a bare reading of section 1686 of the Revised Administrative Code as to preclude construction. And the limitation of the range of choice in the appointment or designation is not without reason.

The obvious reason is to have appointed only lawyers over whom the Secretary of Justice can exercise exclusive and absolute power of supervision. An appointee from a branch of the government outside the Department of Justice would owe obedience to, and be subject to orders by, mutually independent superiors having, possibly, antagonistic interests. Referring particularly to the case at hand for illustration, Attorney Subido could be recalled or his time and attention be required elsewhere by the Secretary of Interior or the City Mayor while he was discharging his duties as public prosecutor, and the Secretary of Justice would be helpless to stop such recall or interference. An eventuality or state of affairs so undesirable, not to say detrimental to the public service and specially the administration of justice, the Legislature wisely intended to avoid.

The application of the 1951 Villa ruling is not confined to instances where the person who filed the information is disqualified from being a special prosecutor under Section 1686 of the Revised Administrative Code, as amended, but has been extended to various cases where the information was filed by an unauthorized officer as in the case at bar. In Cruz, Jr. v. Sandiganbayan, et al., the Court held that it is a fundamental principle that when on its face the information is null and void for lack of authority to file the same, it cannot be cured nor resurrected by amendment. In that case, the Presidential Commission on Good Government (PCGG) conducted an investigation and filed an information with the Sandiganbayan against petitioner Roman Cruz, Jr. charging him with graft and corruption. The petitioner sought to quash the information on the ground that the crime charged did not constitute a “Marcos crony related crime” over which the PCGG had authority to investigate and file an information. The Court found that the crime alleged in the information was not among those which PCGG was authorized to investigate under Executive Orders No. 1 and 14 of then President Corazon Aquino and ruled that the information was null and void. Of similar import is Romualdez v. Sandiganbayan, et al. where we ruled that the information having been filed by an unauthorized party (the PCGG), the information was fatally flawed. We noted that this defect is not a mere remediable defect of form, but a defect that could not be cured.

In Cudia v. Court of Appeals , et al. , we also reiterated the Villa ruling. The accused in that case was apprehended in Mabalacat, Pampanga for illegal possession of firearms and was brought to Angeles City where the headquarters of the arresting officers was located. The City Prosecutor of Angeles City filed an information in the Regional Trial Court of Angeles City. We invalidated the information filed by the City Prosecutor because he had no territorial jurisdiction, as the offense was committed in Mabalacat, Pampanga and his territorial jurisdiction was only in Angeles City. We held that an information, when required by law to be filed by a public prosecuting officer, cannot be filed by another.

Otherwise, the court does not acquire jurisdiction. It is a valid information signed by a competent officer which, among other requisites, confers jurisdiction on the court over the person of the accused and the subject matter thereof. The accused’s plea to an information may be a waiver of all formal objections to the said information but not when there is want of jurisdiction. Questions relating to lack of jurisdiction may be raised at any stage of the proceeding. An infirmity in the information, such as lack of authority of the officer signing it, cannot be cured by silence, acquiescence, or even by express consent.

Despite modifications of the provisions on unauthorized filing of information contained in the 1940 Rules of Criminal Procedure under which Villa was decided, the 1951 Villa ruling continues to be the prevailing case law on the matter.

The 1940 Rules of Court provided in Rule 113, Section 10 that, if the defendant fails to move to quash the complaint or information before he pleads thereto, he shall be taken to have waived all objections which are grounds for a motion to quash except (1) “when the complaint or information does not charge an offense” or (2) “the court is without jurisdiction of the same.” (emphasis ours) Among the enumerated grounds for a motion to quash under Section 2 of the same Rule was “(t)hat the fiscal has no authority to file the information.” With only the above two exceptions provided by the 1940 Rules, the Court nevertheless made the Villa ruling that if the filing officer lacks authority to file the information, jurisdiction is not conferred on the court and this infirmity cannot be cured by silence or waiver, acquiescence, or even by express consent.

The 1940 Rules of Court was amended in 1964. With only minimal changes introduced, the 1964 Rules of Court contained provisions on unauthorized filing of information similar to the above provisions of the 1940 Rules.

Then came the 1985 Rules of Criminal Procedure. Lack of authority of the officer who filed the information was also a ground for a motion to quash under these rules. The 1985 Rules also provided for waiver of the grounds for a motion to quash under Rule 117, Section 8, but enumerated the following exceptions to the waiver: (a) the facts charged do not constitute an offense; (b) the court trying the case has no jurisdiction over the offense charged or the person of the accused; (c) the criminal action or liability has been extinguished; and (d) the accused has been previously convicted or in jeopardy of being convicted, or acquitted of the offense charged. Apparently, the want of jurisdiction under the 1985 Rules refers to jurisdiction over the offense and the person, and not over the case as in Villa where the court did not acquire jurisdiction over the case for lack of authority of the officer who filed the information. Still, despite the enumeration, the Court continued to apply the Villa ruling as shown in the afore-cited Cruz and Cudia cases.

The 1985 Rules was amended in 2000. The 2000 Revised Rules of Criminal Procedure also provide for lack of authority of the filing officer as among the grounds for a motion to quash and the waiver of these grounds. Similar to the 1985 Rules, the Revised Rules enumerate the exceptions from the waiver, namely: (a) that the facts charged do not

constitute an offense; (b) that the court trying the case has no jurisdiction over the offense charged; (c) that the criminal action or liability has been extinguished; and (d) that the accused has been previously convicted or acquitted of the offense charged, or the case against him was dismissed or otherwise terminated without his express consent. Under the regime of the 2000 Revised Rules, we reiterated the Villa ruling in the above-cited Romualdez case. With the enumeration of the four exceptions, which was almost a replica of the enumeration in the 1985 Rules, the 2000 Rules did not intend to abandon Villa. The Villa ruling subsisted alongside the enumerated exceptions under the 1985 Rules, and it remains to do so under the enumerated exceptions under the 2000 Rules. Neither the Rationale of the 2000 Revised Rules of Criminal Procedure nor the Minutes of the Meeting of the Committee on the Revision of the Rules of Court evinces any intent to abandon the doctrine enunciated in Villa.

In sum, we hold that, in the absence of a directive from the Secretary of Justice designating State Prosecutor Tolentino as Special Prosecutor for SSS cases or a prior written approval of the information by the provincial or city prosecutor, the information in Criminal Case No. RTC 2001-0597 was filed by an officer without authority to file the same. As this infirmity in the information constitutes a jurisdictional defect that cannot be cured, the respondent judge did not err in dismissing the case for lack of jurisdiction.

Tolentino, et al. v. Paqueo,Jr., (GR No. 150606, June 7, 2007)

The main issue in this case is whether or not petitioner State Prosecutor Tolentino is duly authorized to file the subject Information without the approval of the City Prosecutor?

 In their Memorandum, petitioners allege that State Prosecutor Tolentino was duly

authorized to file the Information based on the following: 

1.         Petitioner Regional State Prosecutor Santiago M. Turingan, per Regional Order dated July 14, 1997,  authorized State Prosecutor Tolentino to file the necessary Information for violations  of Republic Act No. 8282  in the Bicol Region, except Masbate and Catanduanes, and to prosecute the same in courts of competent jurisdiction.  This was in response to the request of the SSS, Region V for the designation of a Special Prosecutor to handle the prosecution of said criminal cases with the Office of the City Prosecutor and Office of the Provincial Prosecutor of the cities of Naga, Legaspi and Iriga and all provinces of the Bicol Region.

 2.         Per ruling of the Chief State Prosecutor in his letter dated October

24, 2000, “. . . the information to be filed in court by prosecutors-designate do not need the approval of the Regional State Prosecutor or the Provincial or City Prosecutor.” An administrative opinion interpreting existing rules issued by agencies directly

involved in the implementation of the rules should be respected and upheld.

  Respondent judge quashed the Information based on Sec. 3 (d), Rule 117 of the

Revised Rules of Criminal Procedure in relation to the third paragraph of Sec. 4, Rule 112 of the Revised Rules of Criminal Procedure, thus:

 Rule 112. Sec 4. Resolution of investigating prosecutor and its

review.— x x x No complaint or information may be filed or dismissed by an

investigating prosecutor without the prior written authority or approval of the provincial or city prosecutor or chief state prosecutor or the Ombudsman or his deputy. 

  Rule 117. Sec. 3.  Grounds.— The accused may move to quash the

complaint or information on any of the following grounds: x x x (d) That the officer who filed the information had no authority to

do so.  

Notably, changes in the third paragraph of Sec. 4, Rule 112 were introduced in the Revised Rules of Criminal Procedure, which took effect on December 1, 2000.  It is noted that the letter dated October 24, 2000 of Chief State Prosecutor Jovencito R. Zuño, upon which State Prosecutor Tolentino relies to support his authority to file the subject Information without the approval of the City Prosecutor, was issued before the changes in the third paragraph of Sec. 4, Rule 112 were introduced in the Revised Rules of Criminal Procedure. 

 While the old 1985 Rules of Criminal Procedure, as amended, stated that “[no]

complaint or information may be filed or dismissed by an investigating fiscal without the prior written authority or approval of the provincial or city fiscal of chief state prosecutor,” the  2000 Revised Rules of Criminal Procedure states that “[n]o complaint or information may be filed or dismissed by an investigating prosecutor without the prior written authority or approval of the provincial or city prosecutor or chief state prosecutor or the Ombudsman or his deputy.”  Since the provision is couched in negative terms importing that the act shall not be done otherwise than designated, it is mandatory. [Brehm, et al. v. Republic of the Philippines,  118 Phil. 1005 (1963)]

 An examination of the functions of the Regional State Prosecutor under Sec. 8 of

Presidential Decree No. 1275  showed that they do not include that of approving the Information filed or dismissed by the investigating prosecutor.  

 It is a rule of statutory construction that the express mention of one person, thing,

or consequence implies the exclusion of all others, expressio unius est exclusio alterius.

  Since the Regional State Prosecutor is not included among the law officers

authorized to approve the filing or dismissal of the Information of the investigating prosecutor, the Information filed by petitioner State Prosecutor Tolentino did not comply with the requirement of   Sec. 4, Rule 112 of the Revised Rules of Criminal Procedure.  Consequently, the non-compliance was a ground to quash the Information under Sec. 3 (d), Rule 117 of the Revised Rules of Criminal Procedure.

 Petitioners also contend that the accused must move to quash at any time before

entering his plea and the trial court is barred from granting further time to the accused to do so; and that there is no evidence in support of the motion to quash.

 Rule 117 of the Revised Rules of Criminal Procedure on the Motion to Quash

provides: 

SECTION 1.  Time to move to quash.—At any time before entering his plea, the accused may move to quash the complaint or information.

 SEC. 2.  Form and contents.— The motion to quash shall be in

writing, signed by the accused or his counsel and shall distinctly specify its factual and legal grounds.  The court shall consider no grounds other than those stated in the motion, except lack of jurisdiction over the offense charged.

  

The Court finds that there is substantial compliance by private respondent with the rule above quoted, as it was satisfactorily explained in his Memorandum that his counsel orally moved to quash the Information before the arraignment on August 7, 2001. In an Order issued on the same date, respondent Judge required private respondent’s counsel to file a motion to quash within five days from the issuance of the Order. Accordingly, the motion was filed on August 10, 2001.

 Moreover, there was no need to submit any evidence to support the ground for

quashing the Information, since it was apparent and within judicial notice that petitioner State Prosecutor Tolentino was not the City Prosecutor or the Provincial Prosecutor.

 As regards the allegation of willful miscitation of the ground for quashing the

Information, the Court finds that respondent Judge failed to cite in his Order the correct paragraph under Rule 117 of the Rules of Court where the ground relied upon for quashing the Information is enumerated.  What is important, however, is that he correctly cited the ground for quashing the Information.

 Certiorari implies an indifferent disregard of the law, arbitrariness and caprice, an

omission to weigh pertinent considerations, a decision arrived at without rational deliberation.

 In this petition for certiorari, the Court finds that respondent judge did not

gravely abuse his discretion in dismissing the Information filed by petitioner State Prosecutor Romulo SJ. Tolentino for failure to comply with the third paragraph of Sec. 4, Rule 112 of the Revised Rules of Criminal Procedure.  

  The Rules of Court governs the pleading, practice and procedure in all courts of

the Philippines. For the orderly administration of justice, the provisions contained therein should be followed by all litigants, but especially by the prosecution arm of the Government.

Municipality of Nueva Era, Ilocos Norte vs. Municipality of Marcos, Ilocos Norte, G.R. No. 169435 February 27, 2008

Under the maxim expressio unius est exclusio alterius, the mention of one thing implies the exclusion of another thing not mentioned.  If a statute enumerates the things upon which it is to operate, everything else must necessarily and by implication be excluded from its operation and effect.  This rule, as a guide to probable legislative intent, is based upon the rules of logic and natural workings of the human mind.

Had the legislature intended other barangays from Nueva Era to become part of Marcos, it could have easily done so by clear and concise language.  Where the terms are expressly limited to certain matters, it may not by interpretation or construction be extended to other matters.  The rule proceeds from the premise that the legislature would not have made specified enumerations in a statute had the intention been not to restrict its meaning and to confine its terms to those expressly mentioned.

Miaque vs. Patag ( G.R. Nos. 170609-13, January 30, 2009)

We grant the petition. The Informations must be quashed.  One of the issues raised in the petition is the authority of the Iloilo Provincial

Prosecutor’s Office to file and sign the new Informations against petitioner. The offenses charged in each of the new Informations were alleged to have been committed in Iloilo City but said Informations were filed by the Iloilo Provincial Prosecutor’s Office.

 Sections 9 and 11 of Presidential Decree No. 1275 provide:

SEC. 9. Offices of Provincial Fiscals and City Fiscals’ Staffing. -- There shall be in each province and each subprovince; one provincial fiscal and such number of assistant provincial fiscals as may hereinafter be provided for.

There shall be in each city one city fiscals and such number of assistant city fiscals as may hereinafter be provided.  

xxx 

SEC. 11. Provincial Fiscals and City Fiscals; Duties and Functions. – The provincial fiscal or the city fiscal shall:

a)      xxxb)      Investigate and/or cause to be investigated all charges

of crimes, misdemeanors and violations of all penal laws and ordinances within their respective jurisdictions and have the necessary information or complaint prepared or made against the persons accused. xxx (emphasis supplied)

  It is undisputed that the alleged acts of libel were committed in Iloilo City. Who

then had the authority to file and sign the new informations against petitioner and his co-accused? The Charter of the City of Iloilo provides:

             [The City Fiscal, now City Prosecutor] shall also have charge of the prosecution of all crimes, misdemeanors and violations of city ordinances, in the Court of First Instance (now RTC) and in the Municipal Trial Court of the city, and shall discharge all the duties in respect to criminal prosecutions enjoined by law upon provincial fiscals.

 The city fiscal shall cause to be investigated all charges of crimes,

misdemeanors, and violations of ordinances, and have the necessary informations or complaints prepared against the persons accused. xxx                     

         The authority to sign and file the new Informations is properly lodged with the Iloilo City Prosecutor’s Office. The Iloilo Provincial Prosecutor’s Office was clearly bereft of authority to file the new Informations against petitioner. An Information, when required by law to be filed by a public prosecuting officer, cannot be filed by another. The court does not acquire jurisdiction over the case because there is a defect in the Information. We held in People v. Hon. Garfin: 

It is a valid information signed by a competent officer which, among other requisites, confers jurisdiction on the court over the person of the accused and the subject matter thereof. xxx Questions relating to lack of jurisdiction may be raised at any stage of the proceeding. An infirmity in the information, such as lack of authority of the officer signing it, cannot be cured by silence, acquiescence, or even by express consent.

  The foregoing considered, the Informations corresponding to Criminal Case Nos. 05-61407 to 05-61411 were fatally defective. The common infirmity in the Informations constituted a jurisdictional defect that could not be cured. There was no point in proceeding under a defective Information that could never be the basis of a valid conviction.

6. WAIVER ON THE DEFECT IN THE INFORMATION

People vs. Razonable, G.R. No. 128085-87. April 12, 2000

Section 11, Rule 110 of the Rules of Court requires that the time of the commission of the offense must be alleged as near to the actual date as the information or complaint will permit. If the Information does not state the time with sufficient certainty as to inform the accused of the date on which the criminal act is alleged to have been committed, this will run afoul of the constitutionally protected right of the accused to be informed of the nature and cause of the accusation against him.

The rationale of the rule, which is to inform the accused of the nature and cause of the accusation against him, should guide our decision. To claim this substantive right protected by no less than the Bill of Rights, the accused is duty bound to follow our procedural rules which were laid down to assure an orderly administration of justice. Firstly, it behooved the accused to raise the issue of a defective information, on the ground that it does not conform substantially to the prescribed form, in a motion to quash said information or a motion for bill of particulars. An accused who fails to take this seasonable step will be deemed to have waived the defect in said information. The only defects in an information that are not deemed waived are where no offense is charged, lack of jurisdiction of the offense charged, extinction of the offense or penalty and double jeopardy. Corollarily, we have ruled that objections as to matters of form or substance in the information cannot be made for the first time on appeal. In the case at bar, appellant did not raise either in a motion to quash or a motion for bill of particulars the defect in the Information regarding the indefiniteness of the allegation on the date of the commission of the offense.

Secondly, during the trial, the defense never objected to the presentation of evidence by the prosecution to prove that the offense was committed in the middle of June 1987. It has not been shown that appellant was taken by surprise with the testimony of complainant that she was raped in the middle of June 1987, and hence could not properly defend himself. On the contrary, appellant was able to give an alibi as to his whereabouts at that particular time. In fine, appellant cannot pretend that he was unable to defend himself in view of the vagueness of the allegation in the information as to when the crimes at bar were committed.

7. CONSPIRACY

People vs. Berroya, G.R. No. 122487, 12 December 1987

As to appellant Jose Vienes, the evidence presented against him by the State only establishes his presence at the May 7, 1993 and the May 10, 1993 meeting at the Le France office in Mandaluyong. During those meetings, a kidnapping scheme, with an undisclosed Taiwanese national as victim, was hatched. Appellant Vienes was to serve as backup during the actual kidnapping. Additionally, Vienes is said to have been present on

May 11, 1993 at the Le France office when the group allegedly had the kidnap victim at the basement thereof.

Again, it must be emphasized that not one of the prosecution witnesses saw the actual kidnapping. No one saw appellant Vienes participate therein. Even the victim failed to identify him as one of the perpetrators thereof. In point of fact, the trial court convicted him as a principal largely due to his alleged conspiracy with Mateo. The finding of conspiracy was based on his close friendship with Mateo and his presence in those two crucial meetings. As the trial court found it:

“With respect to SPO4 Vienes, said accused was present during the meetings of May 7 and 10, 1993 at Le France, Jovan Condominium, Shaw Boulevard, Mandaluyong, Metro Manila. He was given task allocation (sic) as a back up of Michael Evasco and that on May 11, 1993, SPO4 Jose Vienes was present at Jovan Condominium at Le France Office, Mandaluyong, Metro Manila after the kidnapping of the Taiwanese Chou Cheung Yih. He is a close friend of Francisco “Kit” Mateo and he even recommended to Kit Mateo a friend to become a janitor in the office of Francisco “Kit” Mateo.

SPO4 Jose Vienes cannot impute any evil motive, such as revenge, spite or whatever that will prompt Lenny Pagtakhan and Chief Inspector Wilfredo Reyes to testify against him.

His defense consisting of mere denials and alibi are so weak compared to the positive identification against him. His having been at Le France, Jovan Condominium, Shaw Boulevard, Mandaluyong, Metro Manila together with those who actually kidnapped Chou Cheung Yih is a proof that indeed he complied with the plan for him to be a back up.”

It must be kept in mind that conspiracy must be established by positive and conclusive evidence. It cannot be based on mere conjectures but must be established as a fact. The same degree of proof required to establish the crime is necessary to support a finding of the presence of conspiracy, that is, it must be shown to exist as clearly and convincingly as the commission of the offense itself. An assumed intimacy is of no legal bearing inasmuch as conspiracy transcends companionship.

Furthermore, in order to hold an accused liable as co-principal by reason of conspiracy, he must be shown to have performed an overt act in pursuance or furtherance of the conspiracy. That overt act may consist of active participation in the actual commission of the crime itself, or it may consist of moral assistance to his co-conspirators by being present at the time of the commission of the crime, or by exerting moral ascendancy over the other co-conspirators by moving them to execute or implement the conspiracy. Hence, the mere presence of an accused at the discussion of a conspiracy, even approval of it without any active participation in the same, is not enough for purposes of conviction. Thus, assuming Vienes was a participant in the planning to abduct a

Taiwanese national, in the absence of eyewitnesses to the actual abduction, there is a paucity of evidence as to whether or not Vienes carried out his part of the plan.

Given the above, it becomes painfully apparent that Vienes’ presence at the May 7 and May 10 meetings is insufficient to convict him.  In fact, even the evidence as to his presence in the May 10, 1993 meeting is inconclusive. While both Reyes and Pagtakhan pinpoint appellant Vienes as present in the May 7 meeting, Reyes does not say that he was present on May 10. Pagtakhan, on the other hand, says he was. His presence at Le France on May 11, 1993, when the victim was said to be downstairs, cannot be held against him, as the same is belied by the prosecution itself, which claims that the victim was never brought to Le France.

Consequently, without proof that appellant Vienes personally took part in the execution of the kidnapping, there is only at most, a conspiracy with the other accused. Conspiracy alone, without the execution of its purpose, is not a crime punishable by law except in special cases, none of which is present in the case at bar; hence, appellant Vienes cannot be held criminally liable.

People vs. Maluenda, G.R. No. 115351, 27 March 1998Elements Required to Convict By Circumstantial Evidence

A conviction based on circumstantial evidence requires the concurrence of the following elements: (a) there is more than one circumstance; (b) the facts from which the inferences are derived are proven; and (c) the combination of all the circumstances produces a conviction beyond reasonable doubt. For such a conviction to withstand judicial scrutiny, the prosecution must further show that all the circumstances are inconsistent with the hypothesis that the accused is innocent or with any other rational hypothesis except that of his guilt.

In this case, the totality of the pieces of circumstantial evidence being imputed to Legarto does not foreclose the possibility that he took no part in the criminal enterprise and does not, therefore, overcome his constitutional right to be presumed innocent.

The presumption of innocence is founded upon substantive law and basic principles of justice.  It serves to balance the scales of justice in what would otherwise be an uneven contest between a single individual accused of a crime and the prosecution which has all the resources of the government at its command.  Thus, this presumption cannot be overcome by mere suspicion or conjecture that the defendant probably committed the crime or that he had the opportunity to do so.  The prosecution is required to prove the guilt of the accused beyond reasonable doubt.  Otherwise, the accused must be set free in accordance with the rule that conflicts in and insufficiency of evidence must be resolved in favor of the theory of innocence rather than the theory of guilt.Same  Circumstances  Do  Not Conclusively Show Conspiracy

Although the trial court did not pass upon conspiracy as a source of Legarto’s culpability, we deem it proper to do so, since it was alleged in the Information.  In theory, conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it. Once established, the act of one becomes the act of all.  Further, conspiracy must be shown to exist as clearly as the commission of the offense itself, although direct proof is not essential. Prior agreement or assent to the crime is usually inferred from the acts of the accused showing concerted action, common design and objective, actual cooperation, concurrence of sentiments, or community of interest. In most cases, like the one at bar, proof of conspiracy is frequently made by evidence of a chain of circumstances only. But such proof must always be established by evidence that satisfies the requirement of proof beyond reasonable doubt.

In Legarto’s case, conspiracy was not at all established by the prosecution.  The familiarity between Legarto and Mondaga is insufficient proof, as conspiracy transcends companionship. Moreover, Mondaga’s act of meeting Legarto on the road to Andanan does not show conspiracy, because a merely casual or unintended meeting, like passive presence, is not proof of conspiracy. [People vs. Vda. de Quijano, 220 SCRA 66, 71, March 17, 1993; People vs. Buntan, Sr. 221 SCRA 421, 430, April 12, 1993; People vs. Garcia, 215 SCRA 349, 361, November 4, 1992.] Similarly insufficient as circumstantial evidence to prove conspiracy were Mondaga’s demand for the use of Legarto’s motorcycle, Legarto’s collecting the ransom money and delivering part of it, and Legarto’s failure to testify against Mondaga due to either refusal or neglect.   We stress that conspiracy must be founded on facts, not on mere inferences and conjectures. Without an allegation of any overt act showing community with the kidnappers, inferences do not adequately establish participation in a criminal conspiracy.

People vs. Caballero, G.R. No. 149028-30, 2 April 2003

Criminal conspiracy must always be founded on facts, not on mere inferences, conjectures and presumptions. Mere knowledge, acquiescence to or approval of the act without cooperation or agreement to cooperate, is not enough to constitute one party to a conspiracy absent the intentional participation in the act with a view to the furtherance of the common objective and purpose. [People v. Bragaes, 203 SCRA 555, (1991).] Moreover, one is not criminally liable for his act done outside the contemplation of the conspirators.  Co-conspirators are criminally liable only for acts done pursuant to the conspiring on how and what are the necessary and logic consequence of the intended crime.

Astudillo vs. People, G.R. No. 159734, 30 November 2006

Mere companionship does not establish conspiracy. [People v. Leaño, G.R. No. 138886, October 9, 2001, 366 SCRA 774.]

April Joy Asetre vs. Junel Asetre, G.R. No. 171536, 7 April 2009

Under Article 8 of the Revised Penal Code, there is conspiracy if two or more persons agree to commit a felony and decide to commit it.  Conspiracy must be proven during trial with the same quantum of evidence as the felony subject of the agreement of the parties.  Conspiracy may be proved by direct or circumstantial evidence consisting of acts, words, or conduct of the alleged conspirators before, during and after the commission of the felony to achieve a common design or purpose.

The Bacolod City Prosecutor’s Office, in this case, ruled that conspiracy can be deduced from petitioners’ actuations before, during and after the incident, pointing to a joint purpose of killing Hanz:  they were physically and actively interacting with Hanz shortly before he was found dead; they tried to cover up the crime by narrating stories which border on the “impossible to the bizarre;” nowhere in their counter-affidavits is it stated that Hanz had gone wild when drinking Tanduay that day; Hanz was very quiet at the children’s room and even partook lunch with his cousins; it was unusual for April to call a specific person to pacify Hanz who had allegedly gone wild earlier on the day he died, and unusual for her not to shout for help when she saw Hanz hanging; if she was shocked, her voice could have impelled other people to immediately come upstairs and respond; but it was only Ebcas who came up; Buenaventura Gamboa came up later only when told to call for a taxi; the other employees just continued with their work as if nothing unusual was happening.  The Bacolod City Prosecutor’s Office further ruled that April, as the widow, should have demanded full and exhaustive investigation surrounding Hanz’s death to put an end to the questions and speculations on the real cause of death. Also, according to said office, her reason in opposing the exhumation, e.g., that her prior consent was not secured, is flimsy.

All circumstances considered, we find that the DOJ Secretary correctly held that the circumstantial evidence presented by private respondents to prove probable cause against petitioners, does not support the theory of conspiracy to commit murder.  Such circumstantial evidence in our view, would not sufficiently warrant a conclusion that private respondents are responsible for the death of Hanz.  Petitioners’ mere presence at the death scene, without more, does not suffice to establish probable cause against them.  It is noteworthy that complainants failed to establish conclusively that April, Hanz’s cousins, and his workers had an ax to grind against Hanz.  The alleged quarrel of the couple the night before the incident is hearsay and could not establish enough credible motive on the part of April, contrary to the opinion of the investigating prosecutor, because the same witness who testified about the alleged fight also stated that the couple had a good relationship and that it was not unusual for the couple to have verbal altercations occasionally.  Equally worth stressing is the positive proof that the accused were not the only persons present inside the couple’s house; and that the door of the gate of the house, including the door of the room where the victim was found hanging, were not so well secured as to exclude the possibility that the act was committed by other persons who were also then present in the house, or even by intruders.  April was not attempting to reduce the number of possible witnesses as stated by the investigating prosecutor when she sent her children to Iloilo as it was the victim’s decision to send their children to Iloilo upon his cousin’s invitation.  Likewise, concerning the act of burning the bedsheets, we find no grave abuse of discretion in the ruling of the DOJ that an ordinary person like April could

have believed that the police investigation made at the death scene and the post-mortem examination conducted on the body of the victim were already more than enough to conclude and close the investigation.  Thus, we find no grave abuse of discretion on the part of the Secretary of Justice.