rule 112 & 113 cases.doc

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RULE 112 CASES DIGESTSSection 1 & 2

Serapio vs. Sandiganbayan

Facts:

Petitioner was a member of the Board of Trustees and the Legal Counsel of the Erap Muslim Youth Foundation.Sometime in April 2000, petitioner, as trustee of the Foundation, received on its behalf a donation in the amount of

Two Hundred Million Pesos (P200 Million) from Ilocos Sur Governor Luis “Chavit” Singson through the latter’s

assistant Mrs. Yolanda Ricaforte. Petitioner received the donation and turned over the said amount to the Foundation’streasurer who later deposited it in the Foundation’s account with the Equitable PCI Bank.

In the latter part of the year 2000, Gov. Singson publicly accused then President Joseph E. Estrada and his cohorts

of engaging in several illegal activities, including its operation on the illegal numbers game known as jueteng . This

triggered the filing with the Office of the Ombudsman of several criminal complaints against Joseph Estrada, Jinggoy

Estrada and petitioner, together with other persons. Subsequently, petitioner filed his Counter-Affidavit dated February

21, 2001. The other respondents likewise filed their respective counter-affidavits. The original information was

modifies. Said amended information was refilled in the Office of the Ombudsman. The Office of the Ombudsman

conducted a preliminary investigation of the complaints and on April 4, 2001, issued a joint resolution

recommending, inter alia, that Joseph Estrada, petitioner and several others be charged with the criminal offense of

plunder. No bail was recommended for the provisional release of all the accused, including petitioner. Said criminal

case was forwarded to the Sandiganbayan which also found probable cause of the said crimes. Warrants of arrests were

issued to the accused but herein petitioner voluntary surrendered to the authorities. Arraignment was then scheduled

but it was cancelled several times due to the fact that petitioner filed an urgent petition for bail. Said motion must be

resolved first before arraignment must be held.

On the other hand, the bail hearing was also successively cancelled for many times because of several pending

motions. Petitioner filed a motion to quash the amended information due to the fact that material inculpatory

allegations of the amended Information against him do not constitute the crime of plunder. Petioner filed a motion to

the ombudsman asking for reinvestigation premised on the absolute lack of evidence to support a finding of probablecause for plunder as against him. Petitioner insists that on the face of the amended Information he is charged only with

bribery or illegal gambling.

On July 9, 2001, the Sandiganbayan issued a Resolution denying petitioner’s motion to quash the amended

Information.On July 20, 2001, petitioner filed with the Court a Petition for Certiorari alleging that the Sandiganbayanacted without or in excess of jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction

in issuing its July 9, 2001 Resolution denying his motion to quash. He asserts that while this Court does not ordinarily

look into the existence of probable cause to charge a person for an offense in a given case, it may do so in exceptional

circumstances, which are present in this case: (1) to afford adequate protection to the constitutional rights of the

accused; (2) for the orderly administration of justice or to avoid oppression; (3) when the acts of the officer are without

or in excess of authority; and (4) where the charges are manifestly false and motivated by the lust for vengeance.

Issues:

1) Whether or not the information is sufficient to charge the herein petitioner with the crime of plunder2) Whether or not Sandiganbayan acted without or in excess of jurisdiction or with grave abuse of discretion amounting to lack orexcess of jurisdiction or with in denying his motion to quash and the request of reinvestigation.

Held:

Anent the first issue, it is not necessary to allege in the amended Information a pattern of overt or criminal acts

indicative of the overall unlawful scheme or conspiracy because as Section 3 of R.A. 7080 specifically provides, the

same is evidentiary and the general rule is that matters of evidence need not be alleged in the Information. Further, the

acts alleged in the information are not charged as separate offenses but as predicate acts of the crime of plunder. Thefact that the acts involved may likewise be penalized under other laws is incidental.

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Anent the second issue, Sandiganbayan committed no grave abuse of discretion in denying petitioner’s omnibusmotion. The Court does not interfere with the Ombudsman’s discretion in the conduct of preliminary investigations. It

bears stressing that the right to a preliminary investigation is not a constitutional right, but is merely a right conferred

by statute.[1][47] The absence of a preliminary investigation does not impair the validity of the Information or otherwise

render the same defective and neither does it affect the jurisdiction of the court over the case or constitute a ground for

quashing the Information. If the lack of a preliminary investigation does not render the Information invalid nor affect

the jurisdiction of the court over the case, with more reason can it be said that the denial of a motion for reinvestigation

cannot invalidate the Information or oust the court of its jurisdiction over the case. Neither can it be said that petitioner had been deprived of due process. He was afforded the opportunity to refute the charges against him during the

preliminary investigation.

Probable cause need not be based on clear and convincing evidence of guilt, neither on evidence establishing guilt

beyond reasonable doubt and definitely, not on evidence establishing absolute certainty of guilt.” Absent any showing

of arbitrariness on the part of the prosecutor or any other officer authorized to conduct preliminary investigation, courts

as a rule must defer to said officer’s finding and determination of probable cause, since the determination of the

existence of probable cause is the function of the prosecutor.

Yusop vs. Sandiganbayan

Facts:

Acting on an Affidavit-Complaint3 filed by a certain Erlinda Fadri, the Office of the Ombudsman-Mindanao

issued an Order dated September 19, 1995, naming the following as respondents: Benjamin Arao, Fredireck Winters,

Pelaez Pantaran, Eduardo Dablo, Efren Sissay and the city jail warden of Pagadian City. The Order also reqquired

respondents, within ten days from receipt thereof, to submit their counter-affidavits and other pieces of controverting

evidence.

The Office of the Ombudsman for Mindanao issued a Resolution dated January 15, 1998, 5 recommending the

prosecution of "the aforenamed respondents" for violation of Article 269 of the Revised Penal Code and Section 3-a in

relation to Section 3-e of Republic Act No. 3019 as amended. Significantly, the name of Petitioner Alvarez A. Yusop

was included as one of the persons to be prosecuted, although he was not one of the original respondents mentioned inthe Order of September 19, 1995. Ombudsman Aniano A. Desierto approved the recommendation.

Accordingly, two Informations were filed with the Sandiganbayan. They were docketed as Criminal Case Nos.

24524 (violation of Section 3-a of RA 3019) and 24525 (unlawful arrest under Article 269 of the Revised Penal Code).

On April 16, 1998, an Order of Arrest was issued by the Sandiganbayan in Criminal Case No. 24524.

Petitioner, however, posted a bail bond before the Regional Trial court. Petitioner, however, posted a bail bond before

the Regional Trial Court of Dipolos City on May 20 of the same year. On the same day, he filed a "Motion To Remand

Case To The Ombudsman - Mindanao For Preliminary Investigation."

In Resolution dated June 8, 1998, the Sandiganbayan denied the Motion of petitioner for his alleged failure to

submit himself to the jurisdiction of the anti-graft court.On the scheduled arraignment on February 15, 1999, petitioner reiterated his claim that he had not been accorded preliminary investigation. In its two assailed Orders, the

Sandigabayan rejected his claim and proceeded with the arraignment. Petitioner files a motion to quash on this ground.

Issues:

1) Whether the Sanduganbayan, despite being informed of the lack of preliminary investigation with respect to petitioner, InCriminal Case No. 24524, committed grave abuse of discretion in proceeding with his arraignment.

2) Whether or not absence of preliminary investigation a ground for motion to quash the information.

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Held:It is undisputed, however, that before the Information against petitioner was filed, no preliminary invertigation

had been conducted. In fact, the Office of the Ombudsman admitted that "petitioner was denied of his right to

preliminary investigation."

There is no basis for the Sandiganbayan's ruling that petitioner "had not given timely notice nor any statement of the

alleged inadequacy of the proceeding regarding the filing of the Information." First, there was no showing that petitioner was notified

of the charges filed by Erlinda Fadri. As earlier noted, he had not been named as a respondent in the September 19,1995 Order of the Office of the Ombudsman in Mindanao. His name did not even appear in the caption of its January

15, 1998 Resolution, which recommended the filing of charges against the accused. Indeed, in his Compliance with the

August 26, 1998 Sandiganbayan Resolution, Special Prosecution Officer Diosdado V. Calonge manifested that

petitioner "was not notified of the proceedings of the preliminary investigation and was accordingly not given the

opportunity to be heard thereon

After learning of the filing of the Information against him when he was served a Warrant of Arrest, petitioner

did not dally. He immediately informed the Sandiganbayan that no preliminary investigation had been conducted in

regard to him. Several months later, moments before his arraignment, he reiterated his prayer that the preliminary

investigation be conducted. In this light, the Sandiganbayan erred in saying that he had not given the court timely

notice of this deficiency.

The right to preliminary investigation is substantive, not merely formal or technical. To deny it to petitioner

would deprive him of the full measure of his right to due process. Hence, preliminary investigation with regard to him

must be conducted.

EDUARDO M. COJUANGCO, JR., petitioner, vs. PRESIDENTIAL COMMISSION ON GOODGOVERNMENT (PCGG) AND HON. FRANCISCO I. CHAVEZ in his capacity as Solicitor

General, and the HON. OMBUDSMAN, respondents, MARIA CLARA L. LOBREGAT and JOSER. ELEAZAR, JR., intervenors.

G.R. Nos. 92319-20 October 2, 1990

FACTS:

President Corazon C. Aquino directed the Solicitor General to prosecute all persons involved in the misuse of coconut

levy funds. Pursuant to the above directive the Solicitor General created a task force to conduct a thorough study of the

possible involvement of all persons in the anomalous use of coconut levy funds. On January 12, 1990, the Solicitor

General filed two criminal complaints with respondent PCGG docketed under I.S. Nos. 74 and 75.

The PCGG assigned both complaints to prosecutor Cesario del Rosario for preliminary investigation. The latter

scheduled both cases for hearing. Del Rosario prepared a subpoena dated January 16, 1990 setting the preliminary

investigation on January 29, 1990 at 2:00 o'clock in the afternoon as to respondents Maria Clara Lobregat, Jose

Eleazar, Felix Duenas Jr., and Salvador Escudero, III, and on January 31, 1990 at 2:00 o'clock in the afternoon as to petitioner Eduardo M. Cojuangco, Jr., Rolando de la Cuesta, and Hermenegildo Zayco.

At the scheduled preliminary investigation on January 31, 1990 petitioner appeared through counsel. Instead of filing a

counter-affidavit, as required in the subpoena, he filed two motions addressed to the PCGG, namely; (1) a motion to

disqualify/inhibit PCGG; alternatively, a motion to dismiss; and (2) motion to have the PCGG itself hear or resolve

Cojuangco's motion to disqualify/inhibit PCGG alternatively, motion to dismiss. Prosecutor del Rosario denied both

motions and declared the proceedings closed and the cases submitted for resolution. Thereafter, petitioner requested

the PCGG to resolve directly his aforesaid motions.

Petitioner did not submit the required counter-affidavit. Instead, he filed petitions for prohibition with prayer for a

temporary restraining order/writ of preliminary injunction. He alleges that the PCGG may not conduct a preliminary

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investigation of the complaints filed by the Solicitor General without violating petitioner's rights to due process andequal protection of the law, and that the PCGG has no right to conduct such preliminary investigation.

In a resolution dated March 13, 1990, this Court, without giving due course to the petition, resolved to require

respondents to comment thereon within ten (10) days from notice.

On the same date, the PCGG issued an order that the complaints filed against them may now be considered submitted

for resolution by this Commission with the findings and conclusions of fact of the investigating prosecutor, thata prima facie case has been established against all the respondents, including Hermenegildo Zayco, to warrant the

filing of an information for a violation of Section 3(1) in relation to Section 3(i) thus making them liable under Section

3(a) of RA 3019, to be well-founded.

ISSUES:

(1) Whether or not the Presidential Commission on Good Government (PCGG) has the power to conduct a preliminary investigationof the anti-graft and corruption cases filed by the Solicitor General against Eduardo Cojuangco, Jr. and other respondents for thealleged misuse of coconut levy funds; and

(2) On the assumption that it has jurisdiction to conduct such a preliminary investigation, whether or not its conduct constitutes a

violation of petitioner's rights to due process and equal protection of the law.

RULING:

On the first issue wherein petitioner and intervenors question the authority of the PCGG to conduct a

preliminary investigation of the criminal complaints filed against them by the Solicitor General , the Court finds

and so holds the same to be devoid of merit.

Under Section 2, Rule 112 of the 1985 Rules of Criminal Procedure the officers authorized to conduct a preliminary

investigation are the following: Sec. 2. Officers authorized to conduct preliminary investigation.— The following may

conduct a preliminary investigation: (a) Provincial or city fiscals and their assistants; (b) Judges of the Municipal Trial

Courts and Municipal Circuit Trial Court; (c) National and Regional state prosecutors; and (d) Such other officers as

may be authorized by law. Their authority to conduct preliminary investigation shall include all crimes cognizable by

the proper court in their respective territorial jurisdictions.

However, on July 17, 1979, Presidential Decree No. 1630 was promulgated whereby the Tanodbayan was vested with

the "exclusive authority to conduct preliminary investigation of all cases cognizable by the Sandiganbayan." 6Under

Presidential Decree No. 1486 which was approved on June 11, 1978, the Sandiganbayan was created and vested with

exclusive jurisdiction over all offenses committed by public officers enumerated therein.

However, this exclusive jurisdiction of the Tanodbayan to conduct preliminary investigation of said cases was

modified by Executive Order No. 1 signed by President Corazon C. Aquino on February 28, 1986 creating the PCGG

and constituting its membership to assist the President in the recovery of ill gotten wealth accumulated by the former

President, his relatives and cronies.

Under Sections 2(b) and 3(a) of Executive Order No. 1 and Sections 1 and 2 of Executive Order No. 14, it is clear that

the PCGG has the power to investigate and prosecute such ill-gotten wealth cases of the former President, his relatives

and associates, and graft and corrupt practices cases that may be assigned by the President to the PCGG to be filed

with the Sandiganbayan. No doubt, the authority to investigate extended to the PCGG includes the authority to conduct

a preliminary investigation.

Thus, the Tanodbayan lost the exclusive authority to conduct the preliminary investigation of these types of cases by

the promulgation of the said Executive Order Nos. 1 and 14 whereby the PCGG was vested concurrent jurisdiction

with the Tanodbayan to conduct such preliminary investigation and to prosecute said cases before the Sandiganbayan.

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Upon the adoption of the 1987 Constitution, the Office of the Ombudsman was created under Article XI.

This Court, in Zaldivar , interpreting the aforesaid provision of the Constitution, particularly Section 13(1) thereof

vesting on the Ombudsman the right and the power to investigate on its own or on complaint, any act or omission of

any public official, employee, office or agency which appears "to be illegal, unjust, improper, or inefficient", held that

the general power of investigation covers the lesser power to conduct a preliminary investigation. Thus, as the power of investigation vested on the Ombudsman under the Constitution includes the power to conduct a preliminary

investigation, then the special prosecutor (former Tanodbayan) may no longer conduct such a preliminary investigationunless duly authorized by the Ombudsman.

Under Section 15(l) of Republic Act No. 6770, the Ombudsman has primary jurisdiction over cases cognizable by the

Sandiganbayan so that it may take over at any stage from any investigatory agency of the government, the

investigation of such cases. The authority of the Ombudsman to investigate offenses involving public officers or

employees is not exclusive but is concurrent with other similarly authorized agencies of the government. Such

investigatory agencies referred to include the PCGG and the provincial and city prosecutors and their assistants, thestate prosecutors and the judges of the municipal trial courts and municipal circuit trial courts.

In other words, the aforestated provision of the law has opened up the authority to conduct preliminary investigation of

offenses cognizable by the Sandiganbayan to all investigatory agencies of the government duly authorized to conduct a

preliminary investigation under Section 2, Rule 112 of the 1985 Rules of Criminal Procedure with the onlyqualification that the Ombudsman may take over at any stage of such investigation in the exercise of his primary

jurisdiction.

The second issue raised that the preliminary investigation by the PCGG of the aforestated complaints violates the

right of petitioner to due process and to equal protection of law is impressed with merit.

Under Section 1, Rule 112 of the 1985 Rules on Criminal Procedure, preliminary investigation is defined as "an

inquiry or proceeding for the purpose of determining whether there is sufficient ground to engender a well-founded

belief that a crime cognizable by the Regional Trial Court has been committed and that the respondent is probably

guilty thereof, and should be held for trial."

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

prosecution, and to protect him from an open and public accusation of a crime, from the trouble, expense, anxiety of a

public trial, and also to protect the state from useless and expensive trials.

The conduct of a preliminary investigation is the initial step towards the criminal prosecution of a person. After such

preliminary investigation, if the investigating officer finds that there is sufficient ground to engender a well-founded

belief that a crime has been committed and that the respondent is probably guilty thereof and should be held for trial,

then the corresponding complaint or information shall be filed in the competent court. It is the filing of said complaint

or information that initiates the criminal prosecution of the accused when he is brought to court for trial.

Although such a preliminary investigation is not a trial and is not intended to usurp the function of the trial court, it is

not a casual affair. The officer conducting the same investigates or inquires into the facts concerning the commissionof the crime with the end in view of determining whether or not an information may be prepared against the accused.

Indeed, a preliminary investigation is in effect a realistic judicial appraisal of the merits of the case. Sufficient proof of

the guilt of the accused must be adduced so that when the case is tried, the trial court may not be bound as a matter of

law to order an acquittal. A preliminary investigation has then been called a judicial inquiry. It is a judicial proceeding.

An act becomes judicial when there is opportunity to be heard and for, the production and weighing of evidence, and a

decision is rendered thereon.

The authority of a prosecutor or investigating officer duly empowered to preside or to conduct a preliminary

investigation is no less than that of a municipal judge or even a regional trial court judge. While the investigating

officer, strictly speaking is not a "judge," by the nature of his functions he is and must be considered to be a quasi

judicial officer.

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The question that arises, therefore, is whether under the circumstances of this case, it would be fair and just for thePCGG to conduct the preliminary investigation of the said complaint instead of the Ombudsman or any other duly

authorized investigating agency.

Considering that the PCGG, like the courts, is vested with the authority to grant provisional remedies of (1)

sequestration, (2) freezing assets, and (3) provisional takeover, it is indispensable that, as in the case of attachment and

receivership, there exists a prima facie factual foundation, at least, for the sequestration order, freeze order or takeover

order, an adequate and fair opportunity to contest it and endeavor to cause its negation or nullification. Both areassured under the foregoing executive orders and the rules and regulations promulgated by the PCGG.

Insofar as the general power of investigation vested in the PCGG is concerned, it may be divided into two stages. The

first stage of investigation which is called the criminal investigation stage is the fact-finding inquiring which is usually

conducted by the law enforcement agents whereby they gather evidence and interview witnesses after which they

assess the evidence and if they find sufficient basis, file the complaint for the purpose of preliminary investigation. The

second stage is the preliminary investigation stage of the said complaint. It is at this stage, as above discussed, where it

is ascertained if there is sufficient evidence to bring a person to trial.

In the petition before this Court, it is not denied that the PCGG conducted the appropriate criminal investigation of

petitioner and intervenors as a law enforcer. In the process it sequestered all the properties of the petitioner after

a prima facie finding that the same amount to ill-gotten wealth and/or were acquired in relation to allegedly anomalous

disposition or misuse of the coconut levy funds.

Petitioner and intervenors questioned not only the authority of the PCGG to conduct the preliminary investigation butasserted a denial of due process and equal protection of the law. There is cogent basis for their plea.

The Court cannot close its eyes to the glaring fact that in earlier instances, the PCGG had already found a prima

facie case against the petitioner and intervenors when, acting like a judge, it caused the sequestration of the properties

and the issuance of the freeze order of the properties of petitioner. Thereafter, acting as a law enforcer, in collaboration

with the Solicitor General, the PCGG gathered the evidence and upon finding cogent basis therefore filed the

aforestated civil complaint. Consequently the Solicitor General filed a series of criminal complaints.

In our criminal justice system, the law enforcer who conducted the criminal investigation, gathered the evidence and

thereafter filed the complaint for the purpose of preliminary investigation cannot be allowed to conduct the preliminaryinvestigation of his own complaint. It is to say the least arbitrary and unjust.

The circumstances of the instant petition are even worse. To repeat, the PCGG and the Solicitor General finding a

prima facie basis filed a civil complaint against petitioner and intervenors alleging substantially the same illegal or

criminal acts subject of the subsequent criminal complaints the Solicitor General filed with the PCGG for preliminary

investigation. While ostensibly, it is only the Solicitor General who is the complainant in the criminal cases filed with

the PCGG, in reality the PCGG is an unidentified co-complainant.

The Court finds that under the circumstances of the case, the PCGG cannot inspire belief that it could be impartial in

the conduct of the preliminary investigation of the aforesaid complaints against petitioner and intervenors. It cannot

possibly preside in the said preliminary investigation with an even hand.

The Court holds that a just and fair administration of justice can be promoted if the PCGG would be prohibited from

conducting the preliminary investigation of the complaints subject of this petition and the petition for intervention and

that the records of the same should be forwarded to the Ombudsman, who as an independent constitutional officer has

primary jurisdiction over cases of this nature, to conduct such preliminary investigation and take appropriate action.

WHEREFORE, the petitions of Eduardo M. Cojuangco, Jr. and intervenors Maria Clara Lobregat, and Jose Eleazar, Jr.

are hereby GRANTED. The PCGG is directed to transmit the complaints and records thereof under I.S. Nos. 74, 75, 79, 80, 81, 82, 83 and 84 to the

Ombudsman for appropriate action. All proceedings of the preliminary investigation conducted by the PCGG of said complaints are hereby declared null and voidincluding the informations which it filed in the Sandiganbayan against petitioner and intervenors

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FELIX A. VELASQUEZ, petitioner, vs. HON. UNDERSECRETARY OF JUSTICE,HON. ARTEMIO G. TUQUERO and EDGARDO AVILA, respondents.

G.R. No. 88442 February 15, 1990

FACTS:

On September 29, 1986, Respondent Avila (a Cash and Business Development Consultant of the Techtrade

Management International Corporation, authorized to follow-up business transactions, including loan applications

submitted to the company), informed the company that he had a borrower (whom he did not identify) for P200,000

with interest of 3%/month for a 30-day term from September 29 to October 29, 1988. This was approved by thecompany which issued to him a pay-to-cash check for P194,000 after deducting the 3% interest of 6,000. Instead of

returning the borrowed amount on due date or giving a satisfactory explanation for the supposed borrower's failure to

pay the loan despite written demands, Avila resigned from the company on December 17, 1986 promising that: "... I

shall set aside the P200,000 upon its subsequent collection (subject of Atty. Caacbay's letter of 12/10/86) to answer for

the P100,000 portion of Tony's P700,000 loan to you; please treat the P100,000 — balance, less my unpaid

professional fee and gas expenses from November 16 to December 15, 1986, as my separation and compulsory

benefit."

On December 23, 1986, petitioner Felix A. Velasquez, as Executive Vice-President/Managing Director of Techtrade,

filed a complaint for estafa against Avila in the Manila City Fiscal's Office. Assistant Fiscal Romulo Lopez dismissed

the complaint. However, upon review by the Chief, Investigation Division of the City Fiscal's Office, the latter set

aside Fiscal Lopez' resolution and ordered the filing of an information for estafa against Avila in the Regional Trial

Court. Avila twice sought a reconsideration of that resolution, but both motions were denied by the City Fiscal

Before arraignment, Avila filed on June 29, 1987 in the Department of Justice a petition for review which the

petitioner opposed On February 15, 1988, Justice Undersecretary Silvestre Bello III denied the petition for review. On

October 14, 1988, Avila filed a second motion for reconsideration which the Undersecretary of Justice, Honorable

Artemio Tuquero granted on January 4, 1989. He directed the City Fiscal to conduct a reinvestigation of this case to

afford respondent to properly present evidence that he was duly authorized to pay the subject creditors and for

complainant to rebut the same with controverting evidence, and thereafter to resolve the case anew on the basis of all

the evidence adduced. The complainant filed a motion for reconsideration of that resolution but it was denied on May15, 1989 . Hence, this petition for certiorari.

ISSUE:

Whether of not the Undersecretary of Justice gravely abused his discretion in ordering the re-investigation of the

criminal case against Avila after it had been filed in court.

RULING:

The petition is meritorious. This case is governed by our decision in Crespo vs. Mogul, 151 SCRA 462, where we

ruled that once the information is filed in court, the court acquires complete jurisdiction over it. A motion for

reinvestigation should, after the court had acquired jurisdiction over the case, be addressed to the trial judge

and to him alone. Neither the Secretary of Justice, the State Prosecutor, nor the Fiscal may interfere with the judge'sdisposition of the case, much less impose upon the court their opinion regarding the guilt or innocence of the accused,

for the court is the sole judge of that.

“The rule therefore in this jurisdiction is that once a complaint or information is filed in Court any disposition of the case as its dismissal or the conviction or acquittal of theaccused rests in the sound discretion of the Court. Although the fiscal retains the direction and control of the prosecution of criminal cases even while the case is already inCourt he cannot impose his opinion on the trial court. The Court is the best and sole judge on what to do with the case before it. The determination of the case is within itsexclusive jurisdiction and competence. A motion to dismiss the case filed by the fiscal should be addressed to the Court who has the option to grant or deny the same. It doesnot matter if this is done before or after the arraignment of the accused or that the motion was filed after a reinvestigation or upon instructions of the Secretary of Justice whoreviewed the records of the investigation. In order therefor[e] to avoid such a situation whereby the opinion of the Secretary of Justice who reviewed the action of the fiscalmay be disregarded by the trial court, the Secretary of Justice should, as far as practicable, refrain from entertaining a petition for review or appeal from the action of the fiscal, when the complaint or information has already been filed in Court. The matter should be left entirely for the determination of the Court. (Crespo vs. Mogul, 151 SCRA 462, 471& 472.)”

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The Undersecretary of Justice gravely abused his discretion in ordering the re-investigation of the criminal case againstAvila after it had been filed in court. The avowed purpose of the reinvestigation "to give an opportunity to the private respondentto present an authentic copy of the board resolution of the offended party (Techtrade Management International Corporation) which[allegedly] had authorized him to deal and otherwise dispose of the funds of the corporation," can also be achieved at the trial in thelower court where that piece of evidence may be presented by the accused as part of his defense.

WHEREFORE, the petition for certiorari is granted. The order dated January 4, 1989 of the public respondent is hereby annulledand set aside, with costs against the petitioner.

Crespo vs. Mogul

FACTS:

On April 18, 1977 Assistant Fiscal Proceso K. de Gala with the approval of the Provincial Fiscal filed an information for estafa against Mario Fl. Crespo in theCircuit Criminal Court of Lucena City. When the case was set for arraigment the accused filed a motion to defer arraignment on the ground that there was apending petition for review filed with the Secretary of Justice of the resolution of the Office of the Provincial Fiscal for the filing of the information. In an order ofAugust 1, 1977, the presiding judge, His Honor, Leodegario L. Mogul, denied the motion. A motion for reconsideration of the order was denied in the order ofAugust 5, 1977 but the arraignment was deferred to August 18, 1977 to afford nine for petitioner to elevate the matter to the appellate court.

A petition for certiorari and prohibition with prayer for a preliminary writ of injunction was filed by the accused in the Court of Appeals. In an order of August 17,1977 the Court of Appeals restrained Judge Mogul from proceeding with the arraignment of the accused until further orders of the Court. In a comment that wasfiled by the Solicitor General he recommended that the petition be given due course. On May 15, 1978 a decision was rendered by the Court of Appeals grantingthe writ and perpetually restraining the judge from enforcing his threat to compel the arraignment of the accused in the case until the Department of Justice shallhave finally resolved the petition for review.

On March 22, 1978 then Undersecretary of Justice, Hon.Catalino Macaraig, Jr., resolving the petition for review reversed the resolution of the Office of theProvincial Fiscal and directed the fiscal to move for immediate dismissal of the information filed against the accused. A motion to dismiss for insufficiency ofevidence was filed by the Provincial Fiscal dated April 10, 1978 with the trial court, attaching thereto a copy of the letter of Undersecretary Macaraig, Jr. In anorder of August 2, 1978 the private prosecutor was given time to file an opposition thereto. On November 24, 1978 the Judge denied the motion and set thearraigniment.

The accused then filed a petition for certiorari, prohibition and mandamus with petition for the issuance of preliminary writ of prohibition and/or TRO in the Courtof Appeals. On January 23, 1979 a restraining order was issued by the Court of Appeals against the threatened act of arraignment of the accused until furtherorders from the Court. In a decision of October 25, 1979 the Court of Appeals dismissed the petition and lifted the restraining order of January 23, 1979. Amotion for reconsideration of said decision filed by the accused was denied.

ISSUE:Whether or not the trial court acting on a motion to dismiss a criminal case filed by the Provincial Fiscal upon instructions of the Secretary of Justice to whom thecase was elevated for review, may refuse to grant the motion and insist on the arraignment and trial on the merits.

HELD:

The role of the fiscal or prosecutor as We all know is to see that justice is done and not necessarily to secure the conviction of the person accused before theCourts. Thus, in spite of his opinion to the contrary, it is the duty of the fiscal to proceed with the presentation of evidence of the prosecution to the Court toenable the Court to arrive at its own independent judgment as to whether the accused should be convicted or acquitted. The fiscal should not shirk from theresponsibility of appearing for the People of the Philippines even under such circumstances much less should he abandon the prosecution of the case leaving it

to the hands of a private prosecutor for then the entire proceedings will be null and void. The least that the fiscal should do is to continue to appear for theprosecution although he may turn over the presentation of the evidence to the private prosecutor but still under his direction and control.

The rule therefore in this jurisdiction is that once a complaint or information is filed in Court any disposition of the case as its dismissal or the conviction oracquittal of the accused rests in the sound discretion of the Court. Although the fiscal retains the direction and control of the prosecution of criminal cases even while the case is already in Court he cannot impose his opinion on the trial court. The Court is the best and sole judge on what to do with the case before it. Thedetermination of the case is within its exclusive jurisdiction and competence. A motion to dismiss the case filed by the fiscal should be addressed to the Court who has the opt ion to grant or deny the same. It does not matter if this is done before or after the arraignment of the accused or that the mot ion was filed after areinvestigation or upon instructions of the Secretary of Justice who reviewed the records of the investigation.

In order therefor to avoid such a situation whereby the opinion of the Secretary of Justice who reviewed the action of the fiscal may be disregarded by the trialcourt, the Secretary of Justice should, as far as practicable, refrain from entertaining a petition for review or appeal from the action of the fiscal, when thecomplaint or information has already been filed in Court. The matter should be left entirely for the determination of the Court.

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HUBERT J. P. WEBB, VS. HONORABLE RAUL E. DE LEON G.R. No. 121234,August 23, 1995

FACTS:

On June 19, 1994, the National Bureau of Investigation (NBI) filed with the Department of Justice a letter-complaint charging

petitioners Hubert Webb, Michael Gatchalian, Antonio J. Lejano and six (6) other persons with the crime of Rape and Homicide of Carmela N. Vizconde, her mother Estrellita Nicolas-Vizconde, and her sister Anne Marie Jennifer in their home at Number 80 W.

Vinzons, St., BF Homes Paranaque, Metro Manila on June 30, 1991.

Forthwith, the Department of Justice formed a panel of prosecutors headed by Assistant Chief State Prosecutor Jovencio R. Zuno

to conduct the preliminary investigation.

ARGUMENTS:

Petitioners fault the DOJ Panel for its finding of probable cause. They assail the credibility of Jessica Alfaro as inherently weak and uncorroborated due to the inconsistencies between her April 28, 1995 and May 22, 1995 sworn statements. They criticize the

procedure followed by the DOJ Panel when it did not examine witnesses to clarify the alleged inconsistencies.

Petitioners charge that respondent Judge Raul de Leon and, later, respondent Judge Amelita Tolentino issued warrants of arrestagainst them without conducting the required preliminary examination.

Petitioners complain about the denial of their constitutional right to due process and violation of their right to an impartial

investigation. They also assail the prejudicial publicity that attended their preliminary investigation.

ISSUES:

1. Whether or not the DOJ Panel likewise gravely abused its discretion in holding that there is probable cause to charge them with the crime ofrape and homicide

2. Whether or not respondent Judges de Leon and Tolentino gravely abused their discretion when they failed to conduct a preliminaryexamination before issuing warrants of arrest against them

3. Whether or not the DOJ Panel denied them their constitutional right to due process during their preliminary investigation

4. Whether or not the DOJ Panel unlawfully intruded into judicial prerogative when it failed to charge Jessica Alfaro in the information as anaccused.

HELD:

1. NO.

2. NO.

3. NO. There is no merit in this contention because petitioners were given all the opportunities to be heard.

4. NO.

REASONS:

1. The Court ruled that the DOJ Panel did not gravely abuse its discretion when it found probable cause against the petitioners. A

probable cause needs only to rest on evidence showing that more likely than not, a crime has been committed and was committed by the suspects. Probable cause need not be based on clear and convincing evidence of guilt, neither on evidence establishing guilt beyond reasonable doubt and definitely, not on evidence establishing absolute certainty of guilt.

2. The Court ruled that respondent judges did not gravely abuse their discretion. In arrest cases, there must be a probable cause that

a crime has been committed and that the person to be arrested committed it. Section 6 of Rule 112 simply provides that “upon

filing of an information, the Regional Trial Court may issue a warrant for the accused. Clearly the, our laws repudiate the

submission of petitioners that respondent judges should have conducted “searching examination of witnesses” before issuing

warrants of arrest against them.

3. The DOJ Panel precisely ed the parties to adduce more evidence in their behalf and for the panel to study the evidence submitted

more fully.

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4. Petitioner’s argument lacks appeal for it lies on the faulty assumption that the decision whom to prosecute is a judicial function,

the sole prerogative of the courts and beyond executive and legislative interference. In truth, the prosecution of crimes appertains

to the executive department of government whose principal power and responsibility is to see that our laws are faithfully executed.

A necessary component of this power is the right to prosecute their violators (See R.A. No. 6981 and section 9 of Rule 119 for

legal basis).

With regard to the inconsistencies of the sworn statements of Jessica Alfaro, the Court believes that these have been sufficientlyexplained and there is no showing that the inconsistencies were deliberately made to distort the truth.

With regard to the petitioners’ complaint about the prejudicial publicity that attended their preliminary investigation, the Court

finds nothing in the records that will prove that the tone and content of the publicity that attended the investigation of petitioners

fatally infected the fairness and impartiality of the DOJ Panel. Petitioners cannot just rely on the subliminal effects of publicity on

the sense of fairness of the DOJ Panel, for these are basically unbeknown and beyond knowing.

LEVI’S STRAUSS, INC vs LIM

NATURE: Petition for review on certiorari on the decision of the Court of Appeals (CA) affirming the resolutions of the Department of Justice (DOJ) finding that there is noprobable cause to indict respondent Tony Lim, a.k.a. Antonio Guevarra, for unfair competition.

FACTS:

LS & Co. USA granted petitioner Levi Strauss (Phils.), Inc., which is a duly-registered domestic corporation, a non-exclusive

license to use its registered trademarks and trade names for the manufacture and sale of various products in the Philippines.

Petitioner filed a complaint before the Inter-Agency Committee on Intellectual Property Rights, alleging that Tony Lim operating

under the name Vogue Traders Clothing Company, was manufacturing garments using colorable imitations of the LEVI’S

trademarks with a brand name “LIVE’S.” Pursuant to this, PNP Criminal Investigation Unit served search warrants and seized

several items from respondent’s premises. PNP CIC filed a complaint against Lim before the DOJ for unfair competition under the

old Article 189 of the Revised Penal Code, prior to its repeal by Section 239 of Republic Act (RA) No. 8293 since it found that

there was a “confusing similarity” between petitioner’s LEVI’s jeans and respondent’s LIVE’S denim jeans and pants.

In his counter-affidavit, Lim alleged among others that his products bearing the LIVE’S brand name are not fake LEVI’Sgarments. His goods are not clothed with an appearance which is likely to deceive the ordinary purchaser exercising ordinary care

and “LIVE’S” is a registered trademark and the patch pocket design for “LIVE’S” pants has copyright registration. It also argued

that “confusing similarity” which is the central issue in the proceedings, is a prejudicial question that complainant PNP CIC and

the court which issued the search warrants cannot determine without denial of due process or encroachment on the jurisdiction of

the agencies concerned.

In its reply-affidavit, Levi’s maintained that there is likelihood of confusion between the competing products because there is a

slavish imitation of its “arcuate” trademark that was stitched on the backpocket of “LIVE’S” jeans. The mark “105” onrespondent’s product is obviously a play on petitioner’s “501” trademark. The word/phrase “LIVE’S” and “LIVE’S ORIGINAL

JEANS” is confusingly similar to petitioner’s “LEVI’S” trademark and a fabric red tab attached at the left seam of the right back pocket of Levi’s standard five-pocket jeans appears at the same place on “LIVE’S” jeans. Also, the patch used on “LIVE’S” jeans

obviously thrives on petitioner’s own patch showing two horses being whipped by two men in an attempt to tear apart a pair of

jeans. “LEVI’S” jeans are packaged and sold with carton tickets, which are slavishly copied by Lim in his own carton ticket

bearing the marks “LIVE’S,” “105,” the horse mark, and basic features of petitioner’s ticket designs, such as two red arrows

curving and pointing outward, the arcuate stitching pattern, and a rectangular portion with intricate border orientation.

DOJ rule: Prosecutor Dela Cruz recommended the dismissal of the complaint and agreed with respondent that his products are not

clothed with an appearance which is likely to deceive the ordinary purchaser exercising ordinary care. It was approved byAssistant Chief State Prosecutor Buenafe. On appeal, then DOJ Secretary Teofisto Guingona affirmed the prosecutor’s dismissal

of the complaint stating the basic rule that to be found guilty of unfair competition, a person shall, by imitation or any unfair

device, induce the public to believe that his goods are those of another. In the case at bar, complainant has not shown that anyone

was actually deceived by respondent. The products which bear the trademark LIVE’s, has an entirely different spelling and

meaning with the trademark owned by LEVI’s. When read and pronounced it would resonate different sounds. Also, it was

registered with the appropriate government agencies. Without evidence or proof that such was a device of respondent to deceive

the public to the damage of complainant, no unfair competition is committed.

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However, Guingona’s successor, Justice Secretary Silvestre Bello III granted petitioner’s motion and directed the filing of an

information against Lim. He reasoned that under Article 189 of the Revised Penal Code, as amended, exact similarity of the

competing products is not required. In appropriating himself the general appearance of the product of the complainant, Lim clearly

intended to deceive the buying public. His registration of the trademark can not afford him any remedy. Unfair competition may

still be prosecuted despite such registration.

Later, the new DOJ Secretary Serafin Cuevas granted Lim’s motion for reconsideration and ordered the dismissal of the charges

against him.

CA Disposition: Dissatisfied with the DOJ rulings, Levi’s filed with the CA a petition for review under Rule 43 of the 1997 Rules of Civil

Procedure. CA affirmed the dismissal of the unfair competition complaint. The existence of some similarities between LIVE’S jeans and LEVI’Sgarments would not ipso facto equate to fraudulent intent on the part of respondent. Lim used affirmative and precautionary distinguishing

features in his products for differentiation. The appellate court considered the spelling and pronunciation of the marks, the difference in thedesigns of the back pockets, the dissimilarity between the carton tickets and the pricing and sale of petitioner’s products in upscale exclusivespecialty shops. The CA also disregarded the theory of post-sale confusion propounded by petitioner, relying instead on the view that the

probability of deception must be determined at the point of sale.

ISSUE: 1. Whether or not the resolution of the investigating prosecutor is subject to appeal to the Sec. of Justice2. Whether or not the CA gravely erred in failing to direct the Secretary of Justice to cause the filing of the appropriate information in court

against respondent

HELD:

The petition was DENIED and the CA decision was AFFIRMED.

1. Under the 1993 Revised Rules on Appeals from Resolutions in Preliminary Investigations or Reinvestigations, the resolution of

the investigating prosecutor is subject to appeal to the Justice Secretary who, under the Revised Administrative Code, exercises the

power of control and supervision over the Investigating Prosecutor. The Justice Secretary may affirm, nullify, reverse, or modify

the ruling of such prosecutor. If the appeal is dismissed and after the subsequent motion for reconsideration is resolved, a party

has no more appeal or other remedy available in the ordinary course of law. Thus, the Resolution of the Justice Secretary

affirming, modifying or reversing the resolution of the Investigating Prosecutor is final.

2. The remedy of the aggrieved party is not Rule 43 but to file a petition for certiorari under Rule 65 solely on the ground that theSecretary of Justice committed grave abuse of discretion amounting to excess or lack of jurisdiction. While the resolution of the

Justice Secretary may be reviewed by the Court, it is not empowered to substitute its judgment for that of the executive branch

when there is no grave abuse of discretion.

It bears stressing that the main function of a government prosecutor is to determine the existence of probable cause and to file the

corresponding information should he find it to be so. Thus, the decision whether or not to dismiss the criminal complaint against

respondent is necessarily dependent on the sound discretion of the investigating prosecutor and ultimately, that of the Secretary of Justice. The prosecutor is under no compulsion to file a particular criminal information where he is not convinced that he has

evidence to prop up its averments, or that the evidence at hand points to a different conclusion.

In finding that probable cause for unfair competition does not exist, the investigating prosecutor and Secretaries Guingona and

Cuevas arrived at the same conclusion that there is insufficient evidence to prove all the elements of the crime that would allow

them to secure a conviction.

The rule laid down in Emerald Garment and Del Monte is consistent with Asia Brewery, Inc. v. CA where the Court held that in

resolving cases of infringement and unfair competition, the courts should take into consideration several factors which would

affect its conclusion, to wit: the age, training and education of the usual purchaser, the nature and cost of the article, whether the

article is bought for immediate consumption and also the conditions under which it is usually purchased.

Absent a grave abuse of discretion on the part of the executive branch tasked with the determination of probable cause during

preliminary investigation, we cannot nullify acts done in the exercise of the executive officers’ discretion. Otherwise, we shall

violate the principle that the purpose of a preliminary investigation is to secure the innocent against hasty, malicious and

oppressive prosecution and to protect him from an open and public accusation of crime, from the trouble, expense and anxiety of a

public trial and to protect the State from useless and expensive trials.

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Section 3,4,5 & 6

JOSE ANTONIO C. LEVISTE vs. HON. ELMO M. ALAMEDA

G.R. No. 182677 (August 3, 2010)

Facts:

Jose Antonio Leviste was charged with homicide for the death of Rafael de las Alas on January 12, 2007 before the RTC

of Makati City presided by Judge Elmo Alameda who forthwith issued a commitment order against petitioner who was placedunder police custody while confined at the Makati Medical Center. He was released from detention, and his arraignment was set on

January 24 after posting a P40,000 cash bond. The heirs of De Las Alas file a motion for reinvestigation and upon order of the

RTC on January 24, the prosecution conducted a reinvestigation to determine the proper offense thereby deferring petitioner’s

arraignment. On January 31 the court deny the reconsideration of the first order. Petitioner assailed these orders via certiorari and

prohibition before the CA. Meantime, Leviste filed a Urgent Ex-Parte Manifestation and Motion before the trial court to defer

acting on the public prosecutor’s recommendation on the proper offense until after the appellate court resolves his application for

injunctive reliefs, or alternatively, to grant him time to comment on the prosecutor’s recommendation and thereafter set a hearing

for the judicial determination of probable cause. Petitioner also separately moved for the inhibition of Judge Alameda with prayer to defer action on the admission of the Amended Information. Nonetheless, the trial court issued order on February 7 that admitted

the Amended Information for murder and directed the issuance of a warrant of arrest; and Order of February 8, which set the

arraignment on February 13. Petitioner questioned these two orders via supplemental petition before the appellate court. The

appellate court dismissed petitioner’s petition, hence, his present petition.

Issue:

1. Whether or not Almeda’s committed grave abuse of discretion in granting the reinvestigation when the criminal information had alreadybeen filed with the court.

2. Whether or not Almeda acted in grave abuse of discretion in admitting the Amended Information and set his arraignment, despite thependency before the appellate court of the petition for certiorari challenging the first two trial court orders allowing a reinvestigation.

3. Whether or not the trial court faults for not conducting, at the very least, a hearing for judicial determination of probable cause,considering the lack of substantial or material new evidence adduced during the reinvestigation.

Ruling:

1. No, there is compelling reason to clarify the remedies available before and after the filing of an information in cases

subject of inquest. Leviste posits that the prosecution or the private complainant has no right under the Rules of Court to

seek from the trial court an investigation or reevaluation of the case except through a petition for review before the

Department of Justice. In cases when an accused is arrested without a warrant, Leviste contends that the remedy of

preliminary investigation belongs only to the accused. However, the Court held that though the Rules of Court and the

New Rules on Inquest are silent on whether the private complainant could invoke a right to ask for a reinvestigation, the private complainant, by counsel and with the conformity of the public prosecutor, can file a motion for reinvestigation.

Moreover, the Court pointed out that the amendment of the information from homicide to murder, as a result of the

reinvestigation, was done before Leviste entered his plea. “Before the accused enters a plea, a formal or substantialamendment of the complaint may be made without leave of court,” the Court explained. The Court added that since the

amendment of the Information from homicide to murder is a substantial amendment, it is not merely a right of the

prosecution to ask for a preliminary investigation or reinvestigation but its duty.

2. No, the Court held that the Rules of Court categorically state that such petition shall not interrupt the course of the

principal case unless a temporary restraining order or a writ of preliminary injunction has been issued. Moreover, the

Court said that the pace in resolving incidents of the case is not per se an indication of bias.

3. No, 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,” the Court said.

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Petition is denied.

RULE 113 - ARREST

Section 1

MICROSOFT CORPORATION and LOTUS DEVELOPMENTCORPORATION, petitioners, vs. MAXICORP, INC., respondent .

[G.R. No. 140946. September 13, 2004]

This petition for review on certiorari [1] seeks to reverse the Court of Appeals’ Decision[2] dated 23 December 1998 and its Resolution dated 29 November 1999 in CA-G.R. SP No.44777. The Court of Appeals reversed the order] of the RTC, denying Maxicorp’s motion to quash the search warrant that the RTC issued against Maxicorp. Petitioners are theprivate complainants against Maxicorp for copyright infringement under Section 29 of PD No. 49 (“Section 29 of PD 49”)[4] and for unfair competition under Article 189 RPC

Facts

On 25 July 1996, National Bureau of Investigation (“NBI”) Agent Dominador Samiano, Jr. (“NBI Agent Samiano”) filed severalapplications for search warrants in the RTC against Maxicorp for alleged violation of Section 29 of PD 49 and Article 189 of the

RPC. After conducting a preliminary examination of the applicant and his witnesses, Judge William M. Bayhon issued Search

Warrants Nos. 96-451, 96-452, 96-453 and 96-454, all dated 25 July 1996, against Maxicorp.

Armed with the search warrants, NBI agents conducted on 25 July 1996 a search of Maxicorp’s premises and seized property

fitting the description stated in the search warrants.

On 2 September 1996, Maxicorp filed a motion to quash the search warrants alleging that there was no probable cause for their

issuance and that the warrants are in the form of “general warrants.” The RTC denied Maxicorp’s motion on 22 January 1997. The

RTC also denied Maxicorp’s motion for reconsideration.

The RTC found probable cause to issue the search warrants after examining NBI Agent Samiano, John Benedict Sacriz (“Sacriz”),

and computer technician Felixberto Pante (“Pante”). The three testified on what they discovered during their respective visits to

Maxicorp. NBI Agent Samiano also presented certifications from petitioners that they have not authorized Maxicorp to performthe witnessed activities using petitioners’ products.

On 24 July 1997, Maxicorp filed a petition for certiorari with the Court of Appeals seeking to set aside the RTC’s order. On 23

December 1998, the Court of Appeals reversed the RTC’s order denying Maxicorp’s motion to quash the search warrants.

Petitioners moved for reconsideration. The Court of Appeals denied petitioners’ motion on 29 November 1999.

The Court of Appeals held that NBI Agent Samiano failed to present during the preliminary examination conclusive evidence that

Maxicorp produced or sold the counterfeit products. The Court of Appeals pointed out that the sales receipt NBI Agent Samiano presented as evidence that he bought the products from Maxicorp was in the name of a certain “Joel Diaz.”

ISSUES:1. WHETHER THERE WAS PROBABLE CAUSE TO ISSUE THE SEARCH WARRANTS;

2. WHETHER THE SEARCH WARRANTS ARE “GENERAL WARRANTS.”

HELD: On Whether there was Probable Cause to Issue the Search Warrants

Petitioners argue that the CA erred in reversing the RTC based on the fact that the sales receipt was not in the name of NBI Agent Samiano.Petitioners point out that the Court of Appeals disregarded the overwhelming evidence that the RTC considered in determining the existence of

probable cause. Maxicorp counters that the Court of Appeals did not err in reversing the RTC. Maxicorp maintains that the entire preliminaryexamination that the RTC conducted was defective.

The CA based its reversal on two factual findings of the RTC. First, the fact that the sales receipt presented by NBI Agent Samiano as proof thathe bought counterfeit goods from Maxicorp was in the name of a certain “Joel Diaz.” Second, the fact that petitioners’ other witness, John

Benedict Sacriz, admitted that he did not buy counterfeit goods from Maxicorp.

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The CA erred in reversing the RTC’s findings.

Probable cause means “such reasons, supported by facts and circumstances as will warrant a cautious man in the belief that his action and themeans taken in prosecuting it are legally just and proper.” Thus, probable cause for a search warrant requires such facts and circumstances that

would lead a reasonably prudent man to believe that an offense has been committed and the objects sought in connection with that offense are inthe place to be searched.

The judge determining probable cause must do so only after personally examining under oath the complainant and his witnesses. The oathrequired must refer to “the truth of the facts within the personal knowledge of the petitioner or his witnesses, because the purpose thereof is to

convince the committing magistrate, not the individual making the affidavit and seeking the issuance of the warrant, of the existence of probablecause.” The applicant must have personal knowledge of the circumstances. “Reliable information” is insufficient. Mere affidavits are not enough,and the judge must depose in writing the complainant and his witnesses.

The CA’s reversal of the findings of the RTC centers on the fact that the two witnesses for petitioners during the preliminary examination failed

to prove conclusively that they bought counterfeit software from Maxicorp. The CA ruled that this amounted to a failure to prove the existence of a connection between the offense charged and the place searched.

The offense charged against Maxicorp is copyright infringement under Section 29 of PD 49 and unfair competition under Article 189 of the RPC.

To support these charges, petitioners presented the testimonies of NBI Agent Samiano, computer technician Pante, and Sacriz, a civilian. Theoffenses that petitioners charged Maxicorp contemplate several overt acts. The sale of counterfeit products is but one of these acts. Both NBIAgent Samiano and Sacriz related to the RTC how they personally saw Maxicorp commit acts of infringement and unfair competition.

NBI Agent Samiano testified that he saw Maxicorp display and offer for sale counterfeit software in its premises. He also saw how the

counterfeit software were produced and packaged within Maxicorp’s premises. NBI Agent Samiano categorically stated that he was certain the

products were counterfeit because Maxicorp sold them to its customers without giving the accompanying ownership manuals, license agreementsand certificates of authenticity. Sacriz testified that during his visits to Maxicorp, he witnessed several instances when Maxicorp installed

petitioners’ software into computers it had assembled. Sacriz also testified that he saw the sale of petitioners’ software within Maxicorp’s

premises. Petitioners never authorized Maxicorp to install or sell their software.

The testimonies of these two witnesses, coupled with the object and documentary evidence they presented, are sufficient to establish the

existence of probable cause. From what they have witnessed, there is reason to believe that Maxicorp engaged in copyright infringement andunfair competition to the prejudice of petitioners. Both NBI Agent Samiano and Sacriz were clear and insistent that the counterfeit software werenot only displayed and sold within Maxicorp’s premises, they were also produced, packaged and in some cases, installed there.

The determination of probable cause does not call for the application of rules and standards of proof that a judgment of conviction requires after trial on the merits. As implied by the words themselves, “probable cause” is concerned with probability, not absolute or even moral certainty. The

prosecution need not present at this stage proof beyond reasonable doubt. The standards of judgment are those of a reasonably prudent man, notthe exacting calibrations of a judge after a full-blown trial.

No law or rule states that probable cause requires a specific kind of evidence. No formula or fixed rule for its determination exists. Probablecause is determined in the light of conditions obtaining in a given situation. Thus, it was improper for the Court of Appeals to reverse the RTC’sfindings simply because the sales receipt evidencing NBI Agent Samiano’s purchase of counterfeit goods is not in his name.For purposes of determining probable cause, the sales receipt is not the only proof that the sale of petitioners’ software occurred. During the

search warrant application proceedings, NBI Agent Samiano presented to the judge the computer unit that he purchased from Maxicorp, in whichcomputer unit Maxicorp had pre-installed petitioners’ software. Sacriz, who was present when NBI Agent Samiano purchased the computer unit,

affirmed that NBI Agent Samiano purchased the computer unit. Pante, the computer technician, demonstrated to the judge the presence of petitioners’ software on the same computer unit. There was a comparison between petitioners’ genuine software and Maxicorp’s software pre-

installed in the computer unit that NBI Agent Sambiano purchased. Even if we disregard the sales receipt issued in the name of “Joel Diaz,”which petitioners explained was the alias NBI Agent Samiano used in the operation, there still remains more than sufficient evidence to establish

probable cause for the issuance of the search warrants.

This also applies to the Court of Appeals’ ruling on Sacriz’s testimony. The fact that Sacriz did not actually purchase counterfeit software from

Maxicorp does not eliminate the existence of probable cause. Copyright infringement and unfair competition are not limited to the act of sellingcounterfeit goods. They cover a whole range of acts, from copying, assembling, packaging to marketing, including the mere offering for sale of

the counterfeit goods. The clear and firm testimonies of petitioners’ witnesses on such other acts stand untarnished. The Constitution and theRules of Court only require that the judge examine personally and thoroughly the applicant for the warrant and his witnesses to determine

probable cause. The RTC complied adequately with the requirement of the Constitution and the Rules of Court.

Probable cause is dependent largely on the opinion and findings of the judge who conducted the examination and who had the opportunity toquestion the applicant and his witnesses.[31] For this reason, the findings of the judge deserve great weight. The reviewing court should overturnsuch findings only upon proof that the judge disregarded the facts before him or ignored the clear dictates of reason. Nothing in the records of the

preliminary examination proceedings reveal any impropriety on the part of the judge in this case. As one can readily see, here the judge examinedthoroughly the applicant and his witnesses. To demand a higher degree of proof is unnecessary and untimely. The prosecution would be placed

in a compromising situation if it were required to present all its evidence at such preliminary stage. Proof beyond reasonable doubt is best left for trial.

On Whether the Search Warrants are in the Nature of General Warrants

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paragraph (c) of Search Warrants Nos. 96-451, 96-452, 96-453 and 96-454. All articles seized under paragraph (c) of the searchwarrants, not falling under paragraphs a, b, d, e or f, are ordered returned to Maxicorp, Inc.immediately.

Roberts Jr. vs Court of AppealsG.R. No. 113930 March 5, 1996

Facts:Petition to set aside (a) the decision of the Court of Appeals of 28 September 1993 in CA-G.R. SP No. 31226, which dismissed the petition therein on the ground that it has been"mooted with the release by the Department of Justice of its decision . . . dismissing petitioners' petition for review"; (b) the resolution of the said court of 9 February 1994 denyingthe petitioners' motion to reconsider the decision; (c) the order of 17 May 1993 of respondent Judge Maximiano C. Asuncion of Branch 104 of the Regional Trial Court (RTC) ofQuezon City in Criminal Case No. Q-93-43198 denying petitioners' motion to suspend proceedings and to hold in abeyance the issuance of the warrants of arrest and the publicprosecutor's motion to defer arraignment; and (d) the resolutions of 23 July 1993 and 3 February 1994 of the DOJ dismissing petitioners' petition for the review of the JointResolution of the Assistant City Prosecutor of Quezon City and denying the motion to reconsider the dismissal, respectively.

Several thousand holders of "349" Pepsi crowns in connection with the Pepsi ColaProducts Phils., Inc.'s (PEPSI's) Number Fever Promotion filed with the Office of the CityProsecutor of Quezon City complaints against the petitioner's in their respectivecapacities as Presidents or Chief Executive Officers, Chairman of the Board, Vice-Chairman of the Board, and Directors of PEPSI, and also against other officials of

PEPSI. The complaints respectively accuse the petitioners and the other PEPSI officialsof the following crimes: (a) estafa; (b) violation of R.A. No. 7394, otherwise known asthe Consumer Act of the Philippines; (c) violation of E.O. No. 913; and (d) violation of Act No. 2333, entitled " An Act Relative to Untrue, Deceptive and Misleading Advertisements," as amended by Act No. 3740. After appropriate proceedings, theinvestigating prosecutor, Ramon M. Gerona, released on 23 March 1993 a JointResolution where he recommended the filing of an information against the petitionersand others for the violation of Article 318 of the Revised Penal Code and the dismissalof the complaints for the violation of Article 315, 2(d) of the Revised Penal Code; R.A.No. 7394; Act No. 2333, as amended by Act No. 3740; and E.O. No. 913. Thecomplaints against all respondents for violation of R.A. 7394 otherwise known as the

Consumer Act of the Philippines and violation of Act 2333 as amended by Act 3740and E.O. 913 be also dismissed for insufficiency of evidence, and I.S. Nos. 92-7833; 92-8710 and 92-P-1065 involving Crowns Nos. 173; 401; and 117, 425, 703 and 373,respectively, alleged to be likewise winning ones be further investigated to affordrespondents a chance to submit their counter-evidence. On 6 April 1993, CityProsecutor Candido V. Rivera approved the recommendation with the modification thatRosemarie Vera, Quintin Gomez, Jr., and Chito Gonzales be excluded from the chargeon the ground of insufficiency of evidence. The information for estafa attached to the Joint Resolution was approved (on 7 April 1993) by Ismael P. Casabar, Chief of theProsecution Division, upon authority of the City Prosecutor of Quezon City, and wasfiled with the RTC of Quezon City on 12 April 1993. It was docketed as Criminal Case

No. Q-93-43198.

The information reads as follows: The undersigned 1st Assistant CityProsecutor accuses PAUL G. ROBERTS, JR. RODOLFO C. SALAZAR, LUIS F. LORENZO,SR., LUIS P. LORENZO, JR., J. ROBERTO DELGADO, AMAURY R. GUTIERREZ, BAYANI N.FABIC, JOSE YULO, JR., ESTEBAN B. PACANNUAYAN, JR. and WONG FONG FUI, of thecrime of ESTAFA, That in the month of February, 1992, in Quezon City, Philippines andfor sometime prior and subsequent thereto, the above-namedaccused —Paul G. Roberts, Jr. ) being then the Presidents,Rodolfo G. Salazar ) andExecutive Officers,Luis F. Lorenzo, Sr. ) being then the Chairman of the Board of Directors Luis P. Lorenzo, Jr. ) being then the Vice Chairman of the Board J. RobertoDelgado ) Amaury R. Gutierrez ) being then Members of Bayani N. Fabic ) the Board Jose Yulo, Jr. )Esteban B. Pacannuayan, ) Jr. andWong Fong Fui ) OF THE PEPSI COLA

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PRODUCTS PHILIPPINES, INC., CONSPIRING with one another, with intent of gain, bymeans of deceit, fraudulent acts or false pretenses, executed prior to orsimultaneously with the commission of the fraud, did then and there willfully,unlawfully and feloniously defraud the private complainants whose names with theirprizes claimed. On the date and in the place aforementioned, said accused pursuant totheir conspiracy, launched the Pepsi Cola Products Philippines, Inc. "Number Fever

Promotion" from February 17 to May 8, 1992 later extended to May 11-June 12, 1992and announced and advertised in the media that "all holders of crowns and/or caps of Pepsi, Mirinda, Mountain Dew and Seven-up bearing the winning 3-digit number willwin the full amount of the prize printed on the crowns/caps which are marked with aseven-digit security code as a measure against tampering or faking of crowns andeach and every number has its own unique matching security code", enticing thepublic to buy Pepsi softdrinks with aforestated alluring and attractive advertisementsto become millionaires, and by virtue of such representations made by the accused,the said complainants bought Pepsi softdrinks, but, the said accused after their TVannouncement on May 25, 1992 that the winning number for the next day was "349",in violation of their aforecited mechanics, refused as they still refuse to redeem/pay

the said Pepsi crowns and/or caps presented to them by the complainants, who,among others, were able to buy Pepsi softdrinks with crowns/caps bearing number"349" with security codes L-2560-FQ and L-3560-FQ, despite repeated demands madeby the complainants, to their damage and prejudice to the extent of the amount of theprizes respectively due them from their winning "349" crowns/caps, together with suchamounts they spent in going to and from the Office of Pepsi to claim their prizes andsuch other amounts used in buying Pepsi softdrinks which the complainants normallywould not have done were it not for the false, fraudulent and deceitful posters of PepsiCola Products Philippines, Inc. 10 October 1995, after deliberating on the motion forreconsideration and the subsequent pleadings in relation thereto, the Courtenbanc granted the motion for reconsideration; reconsidered and set aside the resolution

of 19 September 1994; and reinstated the petition. It then considered the casesubmitted for decision, "since the parties have exhaustively discussed the issues intheir pleadings, the original records of Criminal Case No. Q-93-43198 and of CA-G.R.SP No. 31226 had been elevated to this Court, and both the petitioners and the Officeof the Solicitor General pray, in effect, that this Court resolve the issue of probablecause on the basis thereof." Issue: 1. Whether public respondent Judge Asuncion committed grave abuse of discretion indenying, on the basis of Crespo vs. Mogul, the motions to suspend proceedings and

hold in abeyance the issuance of warrants of arrest and to defer arraignment untilafter the petition for review filed with the DOJ shall have been resolved.2. Whether public respondent Judge Asuncion committed grave abuse of discretion inordering the issuance of warrants of arrest without examining the records of thepreliminary investigation.3. Whether public respondent Court of Appeals committed grave abuse of discretion(a) in denying the motion for a writ of preliminary injunction solely on the ground thatpublic respondent Asuncion had already before him the Joint Resolution of theinvestigating prosecutor when he ordered the issuance of the warrants of arrest, and

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(b) in ultimately dismissing the petition on the ground of mootness since the DOJ haddismissed the petition for review.4. Whether this Court may determine in this proceedings the existence of probablecause either for the issuance of warrants of arrest against the petitioners or for theirprosecution for the crime of estafa.Ruling

1. There is nothing in Crespo vs. Mogul

which bars the DOJ from taking cognizance of an appeal, by way 'of a petition for review, by an accused in a criminal case from anunfavorable ruling of the investigating prosecutor. It merely advised the DOJ to, "as faras practicable, refrain from entertaining a petition for review or appeal from the actionof the fiscal, when the complaint or information has already been filed in Court." Morespecifically, it stated: In order therefore to avoid such a situation whereby the opinionof the Secretary of Justice who reviewed the action of the fiscal may be disregarded bythe trial court, the Secretary of Justice should, as far as practicable, refrain fromentertaining a petition for review or appeal from the action of the fiscal, when thecomplaint or information has already been filed in Court. The matter should, be leftentirely for the determination of the Court.

In Marcelo vs. Court of Appeals, this Court explicitly declared:Nothing in the said rulingforecloses the power or authority of the Secretary of Justice to review resolutions of hissubordinates in criminal cases. The Secretary of Justice is only enjoined to refrain asfar as practicable from entertaining a petition for review or appeal from the action of the prosecutor once a complaint or information is filed in court. In any case, the grantof a motion to dismiss, which the prosecution may file after the Secretary of Justicereverses an appealed resolution, is subject to the discretion of the court. Crespo couldnot have intended otherwise without doing violence to, or repealing, the lastparagraph of Section 4, Rule 112 of the Rules of Court which recognizes the authorityof the Secretary of Justice to reverse the resolution of the provincial or city prosecutor

or chief state prosecutor upon petition by a proper party. Pursuant to the saidprovision, the Secretary of Justice had promulgated the rules on appeals fromresolutions in preliminary investigation. At the time the petitioners filed their petitionfor the review of the Joint Resolution of the investigating prosecutor, the governingrule was Circular No. 7, dated 25 January 1990. Section 2 thereof provided that onlyresolutions dismissing a criminal complaint may be appealed to the Secretary of Justice. Its Section 4, 55 however, provided an exception, thus allowing, upon ashowing of manifest error or grave abuse of discretion, appeals from resolutionsfinding probable cause, provided that the accused has not been arraigned.2.Section 2, Article III of the present Constitution provides that no search warrant orwarrant 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 thewitnesses he may produce.Under existing laws, warrants of arrest may be issued (1) by the Metropolitan TrialCourts (MeTCs) except those in the National Capital Region, Municipal Trial Courts(MTCs), and Municipal Circuit Trial Courts (MCTCs) in cases falling within theirexclusive original jurisdiction; 59 in cases covered by the rule on summary procedurewhere the accused fails to appear when required; and in cases filed with them whichare cognizable by the Regional Trial Courts (RTCs); and (2) by the Metropolitan TrialCourts in the National Capital Region (MeTCs-NCR) and the RTCs in cases filed withthem after appropriate preliminary investigations conducted by officers authorized to

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do so other than judges of MeTCs, MTCs and MCTCs. As to the first, a warrant can issueonly if the judge is satisfied after an examination in writing and under oath of thecomplainant and the witnesses, in the form of searching questions and answers, that aprobable cause exists and that there is a necessity of placing the respondent underimmediate custody in order not to frustrate the ends of justice. It must be emphasizedthat judges must not rely solely on the report or resolution of the fiscal (now

prosecutor); they must evaluate the report and the supporting document. In thissense, the aforementioned requirement has modified paragraph 4(a) of Circular No. 12issued by this Court on 30 June 1987 prescribing the Guidelines on Issuance of Warrants of Arrest under Section 2, Article III of the 1987 Constitution, which providedin part as follows: In satisfying himself of the existence of a probable cause for theissuance of a warrant of arrest, the judge, following established doctrine andprocedure, may either: (a) Rely upon the fiscal's certification of the existence of probable cause whether or not the case is cognizable only by the Regional Trial Courtand on the basis thereof, issue a warrant of arrest. . . . This requirement of evaluation not only of the report or certification of the fiscal butalso of the supporting documents was further explained inPeople vs. Inting, where this

Court specified what the documents may consist of, viz ., "the affidavits, the transcriptsof stenographic notes (if any), and all other supporting documents behind theProsecutor's certification which are material in assisting the Judge to make hisdetermination" of probable cause. Thus: We emphasize the important features of theconstitutional mandate that ". . . no search warrant or warrant of arrest shall issueexcept upon probable cause to be determined personally by the judge . . ." (Article III,Section 2, Constitution).First, the determination of probable cause is a function of the Judge. It is not for theProvincial Fiscal or Prosecutor nor the Election Supervisor to ascertain. Only the Judgeand the Judge alone makes this determination. Second, the preliminary inquiry madeby a Prosecutor does not bind the Judge. It merely assists him to make the

determination of probable cause. The Judge does not have to follow what theProsecutor presents to him. By itself, the Prosecutor's certification of probable cause isineffectual. It is the report, the affidavits, the transcripts of stenographic notes (if any),and all other supporting documents behind the Prosecutor's certification which arematerial in assisting the Judge to make hisdetermination.3. the only issue before the Court of Appeals were the denial of the petitioners' Motionto Suspend Proceedings and to Hold in Abeyance Issuance of Warrants of Arrest andthe public prosecutor's Motion to Defer Arraignment, which were both based on thependency before the DOJ of the petition for the review of the Joint Resolution, thedismissal of CA-G.R. SP No. 31226 on the basis of the dismissal by the DOJ of thepetition for review might have been correct. However, the petition likewise involved

the issue of whether respondent Judge Asuncion gravely abused his discretion inordering the issuance of warrants of arrest despite want of basis. The DOJ's dismissalof the petition for review did not render moot and academic the latter issue. Indenying in its resolution of 1 July 1993 the petitioners' application for a writ of preliminary injunction to restrain respondent Judge Asuncion from issuing warrants of arrest, the Court of Appeals justified its action in this wise: The Joint Resolution wassufficient in itself to have been relied upon by respondent judge in convincing himself that probable cause indeed exists for the purpose of issuing the correspondingwarrants of arrest. The mere silence of the records or the absence of any expressdeclaration in the questioned Order of May 17, 1993 as to where the respondent Judge

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based his finding of probable cause does not give rise to any adverse inference on hispart. The fact remains that the Joint Resolution was at respondent Judge's disposal atthe time he issued the Order for the issuance of the warrants of arrest. After all,respondent Judge enjoys in his favor the presumption of regularity in the performanceof official actuations. And this presumption prevails until it is overcome by clear andconvincing evidence to the contrary. Every reasonable intendment will be made in

support of the presumption, and in case of doubt as to an officer's act being lawful orunlawful it should be construed to be lawful.We are unable to agree with this disquisition, for it merely assumes at least twothings: (1) that respondent Judge Asuncion had read and relied on the Joint Resolutionand (2) he was convinced that probable cause exists for the issuance of the warrantsof arrest against the petitioners. Nothing in the records provides reasonable basis forthese assumptions. In his assailed order, the respondent Judge made no mention of the Joint Resolution, which was attached to the records of Criminal Case No. Q-93-43198 on 22 April 1993. Neither did he state that he found probable cause for theissuance of warrants of arrest. And, for an undivinable reason, he directed theissuance of warrants of arrest only "after June 21, 1993." If he did read the Joint

Resolution and, in so reading, found probable cause, there was absolutely no reason atall to delay for more than one month the issuance of warrants of arrest. The mostprobable explanation for such delay could be that the respondent Judge had actuallywanted to wait for a little while for the DOJ to resolve the petition for review.4. In criminal prosecutions, the determination of probable cause may either be anexecutive or a judicial prerogative. In People vs. Inting, this Court aptly stated: Andthird, Judges and Prosecutors alike should distinguish the preliminary inquiry whichdetermines probable cause for the issuance of a warrant of arrest from a preliminaryinvestigation proper which ascertains whether the offender should be held for trial orreleased. Even if the two inquiries are conducted in the course of one and the sameproceeding, there should be no confusion about the objectives. The determination of

probable cause for the warrant of arrest is made by the Judge. The preliminaryinvestigation proper — whether or not there is reasonable ground to believe that theaccused is guilty of the offense charged and, therefore, whether or not he should besubjected to the expense, rigors and embarrassment of trial — is the function of theProsecutor.. . . .We reiterate that preliminary investigation should be distinguished asto whether it is an investigation for the determination of a sufficient ground for thefiling of the information or it is an investigation for the determination of a probablecause for the issuance of a warrant of arrest. The first kind of preliminary investigationis executive in nature. It is part of the prosecution's job. The second kind of preliminary investigation which is more properly called preliminary examination is judicial in nature and is lodged with the judge. . . .Ordinarily, the determination of

probable cause is not lodged with this Court. Its duty in an appropriate case isconfined to the issue of whether the executive or judicial determination, as the casemay be, of probable cause was done without or in excess of jurisdiction or with graveabuse of discretion amounting to want of jurisdiction. This is consistent with thegeneral rule that criminal prosecutions may not be restrained or stayed by injunction,preliminary or final. There can be no doubt that, in light of the several thousandprivate complainants in Criminal Case No. Q-93-43198 and several thousands more indifferent parts of the country who are similarly situated as the former for being holdersof "349" Pepsi crowns, any affirmative holding of probable cause in the said case maycause or provoke, as justly feared by the petitioners, the filing of several thousand

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cases in various courts throughout the country. Inevitably, the petitioners would beexposed to the harassments of warrants of arrest issued by such courts and to hugeexpenditures for premiums on bailbonds and for travels from one court to anotherthroughout the length and breadth of the archipelago for their arraignments and trialsin such cases. Worse, the filing of these staggering number of cases would necessarilyaffect the trial calendar of our overburdened judges and take much of their attention,

time, and energy, which they could devote to other equally, if not more, importantcases. Such a frightful scenario would seriously affect the orderly administration of justice, or cause oppression or multiplicity of actions — a situation already longconceded by this Court to be an exception to the general rule that criminalprosecutions may not be restrained or stayed by injunction.We shall not, however, reevaluate the evidence to determine if indeed there isprobable cause for the issuance of warrants of arrest in Criminal Case No. Q-93-43298.For, as earlier stated, the respondent Judge did not, in fact, find that probable causeexists.

THE PEOPLE OF THE PHILIPPINES vs. FRANCISCO ALBIOR

This is an appeal interposed by a suspected look-out sentenced to life imprisonment for robbery and the

gruesome rape and slaying of a young nurse in her own bedroom.

FACTS:

On or about May 30, 1984, the accused, conspiring and confederating one another, nighttime purposely

sought, with intent of gain and by means of force upon things, willfully and feloniously rob the house of

Garces by destroying the window glass frame of complainant's house and when they went in, accused Peter Doe Alias "Bernardo," had sexual intercourse with Dana Garces and hitting her with a wooden baluster on

the different parts of her body causing her death and after which, rob, and carry away the personal propertiesof Florencio Garces.

The accused Rodeolfo Vasquez, having knowledge of the crime of Robbery, and without having participatedtherein either as principal or accomplice, took part to its commission by helping the offenders to sell the

goods.

The trial court rendered the accused Albior guilty of the crime of robbery with homicide with rape. Accused

Vasquez was found guilty as an accessory to the crime of robbery.

The medico-legal officer testified that he conducted the autopsy on the victim and found a hematoma on the

right parietal region and several contusions and abrasions on different parts of the body. He also foundlacerations on the victim's hymen.

The accused Albior alleged that at the time of the commission of the crime, he was at the house of his cousin.He said that he did not understand Tagalog, the dialect in which the extra-judicial confession was written,

being a Cebuano, and that he only signed it because he was told that if he did he would be released. He also

assailed the legality of his arrest and the seizure of the stolen goods by the CIS agents. However, as theseissues were never raised in the proceedings before the trial court, they cannot be considered and passed upon

on appeal.

ISSUE:

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1. WON the arrest and seizure of the stolen goods by CIS agents can be admitted as evidence?

2. WON at this the other evidence adduced by the prosecution would sustain a finding that accused was

guilty?

RULING: Accused-appellant Francisco Albior is hereby ACQUITTED

1. With regard to Albior's sworn statement, the Court finds obvious defects that would render it

inadmissible in evidence. In the case of People v. Galit [G.R. No. L-51770, March 20, 1985, 135

SCRA 465], the Court, quoting from Morales, Jr. v. Enrile [G.R. No. 61016, April 26, 1983, 121SCRA 538], said:

At the time a person is arrested, it shall be the duty of the arresting officer to inform him of the

reason for the arrest and he must be shown the warrant of arrest, if any. He shall be informed of his

constitutional rights to remain silent and to counsel, and that any statement he might make could be

used against him. The person arrested shall have the right to communicate with his lawyer, a relative,

or anyone he chooses by the most expedient means - by telephone if possible - or by letter or

messenger. It shall be the responsibility of the arresting officer to see to it that this is accomplished. Nocustodial investigation shall be conducted unless it be in the presence of counsel engaged by the person

arrested, by any person on his behalf, or appointed by the court upon petition either of the detainee

himself of by anyone on his behalf. The right to counsel stay be waived but the waiver shall not be valid

unless made with the assistance of counsel . Any statement obtained in violation of the procedure herein

laid down, whether exculpatory or inculpatory, in whole or in part, shall be inadmissible in evidence.

[Emphasis supplied.]

2. The statement of Vasquez must however be taken with caution as in the proceedings before the trial

court he testified that he was not allowed to read his statement before signing it and that he wasthreatened with physical violence during his custodial investigation. Further, no explanation was

given by Vasquez how he came to know that Albior was one of those who participated in the robberywhen he (Vasquez) did not participate in or even witness its commission.

These circumstances cannot but cast doubt on the trial court's conclusion that accused Albior

participated in the robbery, rape and homicide of Dana May Garces.

That accused Albior conspired with Bernard Reyes, Carlos Manalangsang and "Jun" to commit the

robbery has not been established either. The extrajudicial confessions of Manalangsang and Vasquez,the only evidence remaining against Albior with the rejection of his sworn statement, are

contradictory as to whether or not Albior was actually part of the conspiracy. While Manalangsang

claims that the plan included Albior and "Jun" as look-outs, he categorically stated that Reyes and

himself had no other companions when they perpetrated the robbery . On the other hand, Vasquez,whose information was undoubtedly hearsay, said that Albior and "Jun" were with Reyes and

Manalangsang, but stated that Reyes and Manalangsang narrated during a drinking spree that only

they were involved. Without a doubt, no conviction can be had on the basis of these contradictorystatements.

Clearly, the requirement of proof of guilt beyond reasonable doubt has not been met. Thus, although

the Court condemns in the strongest possible terms the brutal and shocking rape and slaying of Dana

May Garces, given the attendant circumstances, it finds itself with no other recourse but to apply thelaw and to acquit Francisco Albior of the crime charged.

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Finally, the testimony of Albior that he agreed to sign the sworn statement because he was promised

that he would be released adds to the conclusion that he did not understand what he was signing. Noreasonable person would believe the promise that he would be released if he knows that he had just

signed a statement admitting his participation in the commission of a very serious offense.

In view of the foregoing defects, the Court is constrained to hold Albior's sworn statement

inadmissible in evidence.

Rule 113 (ARREST)

Topic: Warrantless Arrest

PEOPLE vs. IDEL AMINNUDIN

FACTS:

Idel Aminnudin was arrested on June 25, 1984, shortly after disembarking from theM/V Wilcon 9 at about 8:30 in the evening, in Iloilo City. The PC officers who were infact waiting for him simply accosted him, inspected his bag and finding what lookedliked marijuana leaves took him to their headquarters for investigation. The twobundles of suspect articles were confiscated from him and later taken to the NBIlaboratory for examination. When they were verified as marijuana leaves, aninformation for violation of the Dangerous Drugs Act was filed against him.

According to the prosecution, the PC officers had earlier received a tip from one of

their informers that the accused-appellant was on board a vessel bound for Iloilo Cityand was carrying marijuana. He was Identified by name. Acting on this tip, they waitedfor him in the evening of June 25, 1984, and approached him as he descended fromthe gangplank after the informer had pointed to him. They detained him and inspectedthe bag he was carrying. It was found to contain three kilos of what were lateranalyzed as marijuana leaves by an NBI forensic examiner, who testified that sheconducted microscopic, chemical and chromatographic tests on them. On the basis of this finding, the corresponding charge was then filed against Aminnudin.

It is not disputed, and in fact it is admitted by the PC officers who testified for theprosecution, that they had no warrant when they arrested Aminnudin and seized the

bag he was carrying. Their only justification was the tip they had earlier received froma reliable and regular informer who reported to them that Aminnudin was arriving inIloilo by boat with marijuana. Their testimony varies as to the time they received thetip, one saying it was two days before the arrest, another two weeks and a third"weeks before June 25."

ISSUE:

Whether or not there was a valid warrantless arrest.

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RULING:

In the case at bar, the accused-appellant was not, at the moment of his arrest,committing a crime nor was it shown that he was about to do so or that he had justdone so. What he was doing was descending the gangplank of the M/V Wilcon 9 andthere was no outward indication that called for his arrest. To all appearances, he was

like any of the other passengers innocently disembarking from the vessel. It was onlywhen the informer pointed to him as the carrier of the marijuana that he suddenlybecame suspect and so subject to apprehension. It was the furtive finger thattriggered his arrest. The Identification by the informer was the probable cause asdetermined by the officers (and not a judge) that authorized them to pounce uponAminnudin and immediately arrest him.

Now that we have succeeded in restoring democracy in our country after fourteenyears of the despised dictatorship, when any one could be picked up at will, detainedwithout charges and punished without trial, we will have only ourselves to blame if that kind of arbitrariness is allowed to return, to once more flaunt its disdain of the

Constitution and the individual liberties its Bill of Rights guarantees.

While this is not to say that the accused-appellant is innocent, for indeed his very ownwords suggest that he is lying, that fact alone does not justify a finding that he isguilty. The constitutional presumption is that he is innocent, and he will be so declaredeven if his defense is weak as long as the prosecution is not strong enough to convicthim.

Without the evidence of the marijuana allegedly seized from Aminnudin, the case of the prosecution must fall. That evidence cannot be admitted, and should never havebeen considered by the trial court for the simple fact is that the marijuana was seized

illegally. It is the fruit of the poisonous tree, to use Justice Holmes' felicitous phrase. The search was not an incident of a lawful arrest because there was no warrant of arrest and the warrantless arrest did not come under the exceptions allowed by theRules of Court. Hence, the warrantless search was also illegal and the evidenceobtained thereby was inadmissible.

SAMMY MALACAT vs. COURT OF APPEALS

FACTS:

On 27 August 1990, at about 6:30 p.m., in response to bomb threats reported sevendays earlier, Police officer Yu and company were on foot patrol (all of them in uniform)along Quezon Boulevard, Quiapo, Manila, near the Mercury Drug store at PlazaMiranda. They chanced upon two groups of Muslim-looking men, with each group,comprised of three to four men, posted at opposite sides of the corner of QuezonBoulevard near the Mercury Drug Store. These men were acting suspiciously with"[t]heir eyes. . . moving very fast."

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Yu and his companions positioned themselves at strategic points and observed bothgroups for about thirty minutes. The police officers then approached one group of men, who then fled in different directions. As the policemen gave chase, Yu caught upwith and apprehended petitioner. Upon searching petitioner, Yu found a fragmentationgrenade tucked inside petitioner's "front waist line.” Yu's companion, police officerRogelio Malibiran, apprehended Abdul Casan from whom a .38 caliber revolver was

recovered. Petitioner and Casan were then brought to Police Station No. 3 where Yuplaced an "X" mark at the bottom of the grenade and thereafter gave it to hiscommander.

The trial court then ruled that the seizure of the grenade from petitioner wasincidental to a lawful arrest, and since petitioner "[l]ater voluntarily admitted such factto the police investigator for the purpose of bombing the Mercury Drug Store,"concluded that sufficient evidence existed to establish petitioner's guilt beyondreasonable doubt.

ISSUE:

Whether or not there was a valid warrantless arrest.

RULING:

Even granting ex gratia that petitioner was in possession of a grenade, the arrest andsearch of petitioner were invalid, as will be discussed below.

The general rule as regards arrests, searches and seizures is that a warrant is neededin order to validly effect the same. The Constitutional prohibition against unreasonablearrests, searches and seizures refers to those effected without a validly issued

warrant, subject to certain exceptions. As regards valid warrantless arrests, these arefound in Section 5, Rule 113 of the Rules of Court, which reads, in part:

Sec. 5. — Arrest, without warrant; when lawful — A peace officer or aprivate person may, without a warrant, arrest a person:

(a) When, in his presence, the person to be arrested hascommitted, is actually committing, or is attempting to commitan offense;

(b) When an offense has in fact just been committed, and he

has personal knowledge of facts indicating that the person tobe arrested has committed it; and

(c) When the person to be arrested is a prisoner who hasescaped . . .

A warrantless arrest under the circumstances contemplated under Section 5(a)has been denominated as one "in flagrante delicto," while that under Section5(b) has been described as a "hot pursuit" arrest.

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Turning to valid warrantless searches, they are limited to the following: (1) customssearches; (2) search of moving vehicles; (3) seizure of evidence in plain view; (4)consent searches; 33 (5) a search incidental to a lawful arrest; 34 and (6) a "stop andfrisk." 35

In the instant petition, the trial court validated the warrantless search as a "stop and

frisk" with "the seizure of the grenade from the accused [as an appropriate incident tohis arrest," hence necessitating a brief discussion on the nature of these exceptions tothe warrant requirement.

At the outset, we note that the trial court confused the concepts of a "stop-and-frisk"and of a search incidental to a lawful arrest. These two types of warrantless searchesdiffer in terms of the requisite quantum of proof before they may be validly effectedand in their allowable scope.

In a search incidental to a lawful arrest, as the precedent arrest determines thevalidity of the incidental search, the legality of the arrest is questioned in a large

majority of these cases, e.g., whether an arrest was merely used as a pretext forconducting a search. In this instance, the law requires that there first be a lawfularrest before a search can be made — the process cannot be reversed. At bottom,assuming a valid arrest, the arresting officer may search the person of the arresteeand the area within which the latter may reach for a weapon or for evidence todestroy, and seize any money or property found which was used in the commission of the crime, or the fruit of the crime, or that which may be used as evidence, or whichmight furnish the arrestee with the means of escaping or committing violence.

Here, there could have been no valid in flagrante delicto or hot pursuit arrestpreceding the search in light of the lack of personal knowledge on the part of Yu, the

arresting officer, or an overt physical act, on the part of petitioner, indicating that acrime had just been committed, was being committed or was going to be committed.

Having thus shown the invalidity of the warrantless arrest in this case, plainly, thesearch conducted on petitioner could not have been one incidental to a lawful arrest.

We now proceed to the justification for and allowable scope of a "stop-and-frisk" as a"limited protective search of outer clothing for weapons," as laid down in Terry , thus:

We merely hold today that where a police officer observes unusualconduct which leads him reasonably to conclude in light of his experience

that criminal activity may be afoot and that the persons with whom he isdealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makesreasonable inquiries, and where nothing in the initial stages of theencounter serves to dispel his reasonable fear for his own or others'safety, he is entitled for the protection of himself and others in the area toconduct a carefully limited search of the outer clothing of such persons inan attempt to discover weapons which might be used to assault him. Sucha search is a reasonable search under the Fourth Amendment . . .

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Other notable points of Terry are that while probable cause is not required toconduct a "stop and frisk," it nevertheless holds that mere suspicion or a hunchwill not validate a "stop and frisk." A genuine reason must exist, in light of thepolice officer's experience and surrounding conditions, to warrant the belief thatthe person detained has weapons concealed about him. Finally, a "stop-and-frisk" serves a two-fold interest: (1) the general interest of effective crime

prevention and detection, which underlies the recognition that a police officermay, under appropriate circumstances and in an appropriate manner, approacha person for purposes of investigating possible criminal behavior even withoutprobable cause; and (2) the more pressing interest of safety and self-preservation which permit the police officer to take steps to assure himself thatthe person with whom he deals is not armed with a deadly weapon that couldunexpectedly and fatally be used against the police officer.

Here, there are at least three (3) reasons why the "stop-and-frisk" was invalid:

First, we harbor grave doubts as to Yu's claim that petitioner was a member of the

group which attempted to bomb Plaza Miranda two days earlier. This claim is neithersupported by any police report or record nor corroborated by any other police officerwho allegedly chased that group. Aside from impairing Yu's credibility as a witness,this likewise diminishes the probability that a genuine reason existed so as to arrestand search petitioner. If only to further tarnish the credibility of Yu's testimony,contrary to his claim that petitioner and his companions had to be chased beforebeing apprehended, the affidavit of arrest (Exh. "A") expressly declares otherwise, i.e.,upon arrival of five (5) other police officers, petitioner and his companions were"immediately collared."

Second, there was nothing in petitioner's behavior or conduct which could have

reasonably elicited even mere suspicion other than that his eyes were "moving veryfast" — an observation which leaves us incredulous since Yu and his teammates werenowhere near petitioner and it was already 6:30 p.m., thus presumably dusk.Petitioner and his companions were merely standing at the corner and were notcreating any commotion or trouble, as Yu explicitly declared on cross-examination:

Q And what were they doing?

A They were merely standing.

Q You are sure of that?

A Yes, sir.

Q And when you saw them standing, there were nothing orthey did not create any commotion.

A None, sir.

Q Neither did you see them create commotion?

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A None, sir.

Third, there was at all no ground, probable or otherwise, to believe that petitioner wasarmed with a deadly weapon. None was visible to Yu, for as he admitted, the allegedgrenade was "discovered" "inside the front waistline" of petitioner, and from allindications as to the distance between Yu and petitioner, any telltale bulge, assuming

that petitioner was indeed hiding a grenade, could not have been visible to Yu. In fact,as noted by the trial court:

When the policemen approached the accused and his companions, theywere not yet aware that a hand grenade was tucked inside his waistline. They did not see any bulging object in [sic] his person.

What is unequivocal then in this case are blatant violations of petitioner's rightssolemnly guaranteed in Sections 2 and 12(1) of Article III of the Constitution.

People vs. Anthony Escordial

GR 138934-35, January 16, 2002 FACTS:

Escordial was convicted for robbery with rape and sentenced to death by theBacolod RTC.Michelle Darunday, the rape victim, did not know what the suspectlooked like because she was blindfolded atthe time the crime was committed. Shewould only recognize him if she heard his voice and felt the rough bumpson skin, ashe was talking to her while he was raping her. However, her roommateclaimed that she saw thesuspect, even though she was blindfolded, becauseof the light that filtered in from a lamp post outside their room; that's why she

gave a physical description to the police officers.In the course of their investigation,the police found that the suspect's description fit that of a worker in the CoffeeBreakCorner, where the accused was employed. When the police officers arrived at the cafe,they asked theowner for the accused's whereabouts. They went to the location statedby the owner and found the accused in abasketball court. He was then invited forquestioning.The rape victim was already at the station when the accused arrived.According to her testimony, the accused blushed when he saw her. He also triedtalking to her, asking her if she really knew him, but she did not respond. He wasasked to take off his shirt and she confirmed that he was indeed her assailant becauseof a keloid at the back of his neck and his voice.

ISSUES:(1) Whether the warrantless arrest of the accused was lawful.(2) Whether the accused's Miranda rights were violated. HELD: (1) NO. He was arrested while he was watching a basketball game. He was not caughtin flagrante delicto .Neither was he arrested immediately after the consummation of the crime because he was only “invited” for questioning a week after the incident.

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However, the defect was cured when he voluntarily submitted to the jurisdiction of thecourt. (2) YES, insofar as he was not assisted by counsel during the custodialinvestigation. Nevertheless, the Court noted that the accused did not, at any time,admit to committing the crime, even when he claimed that he was being tortured by

the police. Therefore, there was no uncounselled confession obtained from him. Anaccused is not entitled to the assistance of counsel in a police line-up considering thatsuch is usually not a part of custodial investigation. An exception to this rule is whenthe accused had been the focus of police attention at the start of the investigation The Court also found that, although the out-of-court identification of the accused wasinadmissible as evidencesince he was not assisted by counsel at that time, the in-courtidentification was definitely a valid ground for his conviction. In fact, it was actuallythe in-court identification that formed the basis for the RTC's decision, not the out-of-court identification. WHEREFORE, the decision of the Regional Trial Court, Branch 53,Bacolod City , finding accused-appellant guilty of robbery with rape and sentencing

him to death, is hereby REVERSED and accused-appellant is ACQUITTED on the groundof reasonable doubt. Accused-appellant is ordered immediately released unless thereare other legal grounds for his continued detention.

G.R. No. 134203 May 27, 2004PEOPLE OF THE PHILIPPINES, appellee,vs.ELVIE EJANDRA @ ELVIES EJANDRA @ BEBOT EJANDRA @ ALEJANDRO EJANDRA @BEBOT OCAY SUANGCO, MAGDALENA CALUNOD y MAGANOY @ MAGDALENA SALIOT-SUANGCO, ANTONIO HUERA y RANDA, ROEL REVILLA CERON, and EDWIN TAMPOS yAMPARO (All detained at Quezon City Jail, Quezon City), appellants.

Facts: That on or about July 2, 1997, in Quezon City, and within the jurisdiction of thisHonorable Court, above-named accused, while confederating, conniving, conspiring,and helping each and one another, did then and there with the use of force, threat andintimidation, take and carry away, a nine-year-old minor child, Ed Henderson Tan,against the will and consent of the latter nor any of his natural and legal parents orguardian, to an unknown destination, detain, hold and control Ed Henderson Tandepriving him of his liberty, and during their control and custody of Ed Henderson Tan,call, demand and negotiate the payment of ransom money from Eddie Tan, the fatherof Ed Henderson Tan, for the safe release and return of the victim Ed Henderson,otherwise, the victim would be harmed or killed, the victim’s father Eddie Tan actually

paid the accused the amount of P548,000.00 as ransom money, for the safe release of the victim to the damage and prejudice of the victim Ed Henderson Tan and his fatherEddie Tan.On June 4, 1998, the trial court rendered judgment convicting the accused of kidnapping for ransom defined and penalized in Article 268 of the Revised Penal Code,and sentenced each of them to suffer the death penalty. Antonio Huera, was acquittedfor insufficiency of evidence.For their part, the accused agrued and presented alibis and contended that they werearrested without valid warrant of arrest. The Office of the Solicitor General submits that in failing to assail any irregularity intheir arrest before they were arraigned for the crime charged on November 11, 1993,

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the appellants thereby waived their right to do so. The appellants even failed to filetheir respective counter-affidavits during the preliminary investigation of the chargeagainst them at the Department of Justice. Moreover, the prosecution adducedoverwhelming evidence to prove the crime charged that the appellants were theperpetrators of the said crime.Held:

We agree with the Office of the Solicitor General that the appellants Ejandra andCalunod waived any irregularities relating to their warrantless arrest when they failedto file a motion to quash the Information on that ground, or to object to anyirregularity in their arrest before they were arraigned. They are now estopped fromquestioning the legality of their arrest.

PEOPLE VS. MACEDA

Facts:

This case stems from denial by the SC of the People’s motion seeking reconsideration of our August 13, 1990 decision holding that respondent Judge Bonifacio Sanz Maceda committed nograve abuse of discretion in issuing the order of August 8, 1989 giving custody over privaterespondent Avelino T. Javellana to the Clerk of Court of the Antique RTC, Atty. Deogracias delRosario, during the pendency of Criminal Cases Nos. 3350-3355. At that time, sufficient reasonwas shown why Javellana should not be detained at the Antique Provincial Jail. The trial court’sorder specifically provided for private respondent’s detention at the residence of Atty. del Rosario.However, private respondent was not to be allowed liberty to roam around but was to be held asdetention prisoner in said residence. It was however found that the order was not strictly compliedwith because Javellana was not detained in the residence of Atty. Del Rosario. He went about hisnormal activities as if he were a free man, including engaging in the practice of law.

Held:

Private respondent Javellana has been arrested based on the filing of criminal cases against him.By such arrest, he is deemed to be under the custody of the law. The trial court gave Atty.Deogracias del Rosario the custody of private respondent Javellana with the obligation “to holdand detain” him in Atty. del Rosario’s residence in his official capacity as the clerk of court of theregional trial court. Hence, when Atty. del Rosario was appointed judge, he ceased to be thepersonal custodian of accused Javellana and the succeeding clerk of court must be deemed thecustodian under the same undertaking.

As a matter of law, when a person indicted for an offense is arrested, he is deemed placed under the custody of the law. He is placed in actual restraint of liberty in jail so that he may be bound toanswer for the commission of the offense. He must be detained in jail during the pendency of thecase against him, unless he is authorized by the court to be released on bail or on recognizance.Let it be stressed that all prisoners whether under preventive detention or serving final sentencecannot practice their profession nor engage in any business or occupation, or hold office, electiveor appointive, while in detention.

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G.R. No. 101837 February 11, 1992

ROLITO GO y TAMBUNTING, petitioner, vs. THE COURT OF APPEALS, THE HON.BENJAMIN V. PELAYO, Presiding Judge, Branch 168, Regional Trial Court, NCJR Pasig,

M.M., and PEOPLE OF THE PHILIPPINES, respondents.

Facts:

On July 2, 1991, Eldon Maguan was driving along a one-way street. Rolito Go enteredit in the opposite or "wrong" direction. Consequently, their cars nearly bumped eachother. Infuriated, Go alighted from his car, walked over and shot Maguan. He thenboarded his car and left the scene. A security guard at a nearby restaurant witnessedthis and was able to take down petitioner's car plate number.

Investigation revealed that the car was registered to the wife of Go; and uponquestion, the security guard positively identified Rolito Go as the same person who

shot Maguan. Thus, the police launched a manhunt for him.

On July 8, Go presented himself before the police station to verify news reports that hewas being hunted by the police; he was accompanied by two (2) lawyers. The policeforthwith detained him. That same day, the police promptly filed a complaint forfrustrated homicide against him with the Office of the Provincial Prosecutor of Rizal.Prosecutor Villa Ignacio ("Prosecutor") informed Go, in the presence of his lawyers,that he could avail himself of his right to preliminary investigation but that he mustfirst sign a waiver of the provisions of Article 125 of the Revised Penal Code. Gorefused to execute any such waiver.

On 9 July 1991, while the complaint was still with the Prosecutor, and before aninformation could be filed in court, Eldon Maguan, died of his gunshot wound(s).

Accordingly, the Prosecutor, filed an information for murder before the Regional TrialCourt. No bail was recommended. At the bottom of the information, the Prosecutorcertified that no preliminary investigation had been conducted because the accuseddid not execute and sign a waiver of the provisions of Article 125 of the Revised PenalCode.

Because of that, counsel for petitioner filed with the Prosecutor an omnibus motion forimmediate release and proper preliminary investigation, alleging that the warrantless

arrest of petitioner was unlawful and that no preliminary investigation had beenconducted before the information was filed. Petitioner also prayed that he be releasedon recognizance or on bail. The case was raffled to the sala of Judge Pelayo, whoapproved the cash bond posted by Go and ordered his release.

On July 16,1991, the Prosecutor filed with the RTC a motion for leave to conductpreliminary investigation and prayed that in the meantime all proceedings in the courtbe suspended. The trial court issued an Order granting leave to conduct preliminaryinvestigation.

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However on July 17 1991, Judge Pelayo motu proprio issued an Order inter alia: (1)recalling the order which granted bail; petitioner was given 48 hours from receipt of the Order to surrender himself; (2) recalling and cancelling the July 16, 1991 Order which granted leave to the prosecutor to conduct preliminary investigation;

Expectedly, petitioner filed a petition for certiorari, prohibition and mandamus before

the SC, contending that the information was null and void because no preliminaryinvestigation had been previously conducted, in violation of his right to due process.Petitioner also moved for suspension of all proceedings in the case pending resolutionof his petition;

On 23 July 1991, petitioner surrendered to the police. The SC remanded the petitionto the Court of Appeals.

On 16 August 1991, the judge issued an order in open court setting the arraignment of petitioner.

On 19 August 1991, Go filed with the Court of Appeals a motion to restrain hisarraignment.

The judge then issued a Commitment Order directing the Provincial Warden of Rizal toadmit petitioner into his custody. Then, Go was arraigned. In view, however, of hisrefusal to enter a plea, the trial court entered for him a plea of not guilty.

On August 27, 1991, petitioner filed a petition for habeas corpus in the Court of Appeals. alleging that in view of the judge’s failure to join issues in the petition forcertiorari earlier filed by him, after the lapse of more than a month, he was entitled tobe released on habeas corpus. The Court of Appeals issued the writ of habeas corpus

and consolidted the 2 petitions.

Later, the CA issued a resolution denying petitioner's motion to restrain hisarraignment on the ground that that motion had become moot and academic. OnSeptember 19, trial of the criminal case commenced.

On September 23, the CA rendered a consolidated decision dismissing the two (2)petitions, on the following grounds:

a. Petitioner's warrantless arrest was valid because the offense for which he wasarrested and charged had been "freshly committed." His identity had been

established through investigation. At the time he showed up at the police station,there had been an existing manhunt for him. During the confrontation at the San Juan Police Station, one witness positively identified petitioner as the culprit.

b. Petitioner's act of posting bail constituted waiver of any irregularity attending hisarrest. He waived his right to preliminary investigation by not invoking it properlyand seasonably under the Rules.

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c. The trial court did not abuse its discretion when it issued the 17 July 1991 Orderbecause the trial court had the inherent power to amend and control its processesso as to make them conformable to law and justice.

d. Since there was a valid information for murder against petitioner and a validcommitment order (issued by the trial judge after petitioner surrendered to the

authorities whereby petitioner was given to the custody of the Provincial Warden),the petition for habeas corpus could not be granted.

Thus, Go filed for Review on Certiorari with the SC.

Issues:

1) Whether or not a lawful warrantless arrest had been effected by the San JuanPolice in respect of petitioner Go.2) Whether petitioner had effectively waived his right to preliminary investigation.

Held:

As to the first issue, the Solicitor General argues that under the facts of the case,petitioner had been validly arrested without warrant. Since petitioner's identity as thegunman who had shot Eldon Maguan had been sufficiently established by police work,petitioner was validly arrested six (6) days later at the San Juan Police Station. TheSolicitor General invokes Nazareno v . Station Commander, etc., et al., one of theseven (7) cases consolidated with In the Matter of the Petition for Habeas Corpus of Roberto Umil, etc., v . Ramos, et al. the Court sustained the legality of the warrantlessarrests of petitioners made from one (1) to fourteen days after the actual commissionof the offenses, upon the ground that such offenses constituted "continuing crimes."

Those offenses were subversion, membership in an outlawed organization like the NewPeople's Army, etc.

The reliance upon Umil v . Ramos is, in the circumstances of this case, misplaced. Inthe instant case, the offense for which petitioner was arrested was murder, an offensewhich was obviously commenced and completed at one definite location in time andspace. No one had pretended that the fatal shooting of Maguan was a "continuingcrime."

Secondly, the warrantless "arrest" or detention of petitioner in the instant case doesnot fall within the terms of Section 5 of Rule 113 of the Rules on Criminal Procedure

which provides:

Sec. 5 Arrest without warrant; when lawful. — A peace officer or a private personmay, without warrant, arrest a person:

(a) When, in his presence, the person to be arrested has committed, is actuallycommitting, or is attempting to commit an offense;(b) When an offense has in fact just been committed, and he has personalknowledge of facts indicating that the person to be arrested has committed it; and

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(c) When the person to be arrested is a prisoner who has escaped from a penalestablishment or place where he is serving final judgment or temporarily confinedwhile his case is pending, or has escaped while being transferred from oneconfinement to another.In cases falling under paragraphs (a) and (b) hereof, the person arrested without awarrant shall be forthwith delivered to the nearest police station or jail, and he shall

be proceed against in accordance with Rule 112, Section 7.

Petitioner's "arrest" took place six (6) days after the shooting of Maguan. The"arresting" officers obviously were not present, within the meaning of Section 5(a), atthe time petitioner had allegedly shot Maguan. Neither could the "arrest" effected six(6) days after the shooting be reasonably regarded as effected "when [the shootinghad] in fact just been committed" within the meaning of Section 5(b). Moreover, noneof the "arresting" officers had any "personal knowledge" of facts indicating thatpetitioner was the gunman who had shot Maguan. The information upon which thepolice acted had been derived from statements made by alleged eyewitnesses to theshooting. In other words, the information did not constitute "personal knowledge."

It is thus clear that there was no lawful warrantless arrest of petitioner within themeaning of Section 5 of Rule 113. It is clear too that Section 6 of Rule 112 (Sec 7before), which provides:

Sec. 7 When accused lawfully arrested without warrant . — When a person islawfully arrested without a warrant for an offense cognizable by the Regional TrialCourt the complaint or information may be filed by the offended party, peaceofficer or fiscal without a preliminary investigation having been first conducted, onthe basis of the affidavit of the offended party or arresting office or person

However, before the filing of such complaint or information, the person arrestedmay ask for a preliminary investigation by a proper officer in accordance with thisRule, but he must sign a waiver of the provisions of Article 125 of the RevisedPenal Code, as amended, with the assistance of a lawyer and in case of non-availability of a lawyer, a responsible person of his choice. Notwithstanding suchwaiver, he may apply for bail as provided in the corresponding rule and theinvestigation must be terminated within fifteen (15) days from its inception.

If the case has been filed in court without a preliminary investigation having beenfirst conducted, the accused may within five (5) days from the time he learns of the filing of the information, ask for a preliminary investigation with the same

right to adduce evidence in his favor in the manner prescribed in this Rule.

is also not applicable. Indeed, petitioner was not arrested at all. When he walked intoSan Juan Police Station, accompanied by two (2) lawyers, he in fact placed himself atthe disposal of the police authorities. He did not state that he was "surrendering"himself. When the police filed a complaint for frustrated homicide with the Prosecutor,the latter should have immediately scheduled a preliminary investigation to determinewhether there was probable cause for charging petitioner in court for the killing of Eldon Maguan. Instead, the Prosecutor proceeded under the erroneous suppositionthat Section 6 of Rule 112 was applicable and required petitioner to waive the

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provisions of Article 125 of the Revised Penal Code as a condition for carrying out apreliminary investigation. This was substantive error, for petitioner was entitled to apreliminary investigation and that right should have been accorded him without anyconditions. Moreover, since petitioner had not been arrested, with or without awarrant, he was also entitled to be released forthwith subject only to his appearing atthe preliminary investigation.

As to the second issue, it must be noted that petitioner had from the very beginningdemanded that a preliminary investigation be conducted. He did not waive his right toa preliminary investigation. While that right is statutory rather than constitutional in itsfundament, since it has in fact been established by statute, it is a component part of due process in criminal justice. The right to have a preliminary investigationconducted before being bound over to trial for a criminal offense and hence formallyat risk of incarceration or some other penalty, is not a mere formal or technical right; itis a substantive right. The accused in a criminal trial is inevitably exposed toprolonged anxiety, aggravation, humiliation, not to speak of expense; the right to anopportunity to avoid a process painful to any one save, perhaps, to hardened

criminals, is a valuable right. To deny petitioner's claim to a preliminary investigationwould be to deprive him the full measure of his right to due process.

The question may be raised whether petitioner still retains his right to a preliminaryinvestigation in the instant case considering that he was already arraigned on 23August 1991. The rule is that the right to preliminary investigation is waived when theaccused fails to invoke it before or at the time of entering a plea at arraignment. In theinstant case, petitioner Go had vigorously insisted on his right to preliminaryinvestigation before his arraignment . At the time of his arraignment, petitioner wasalready before the Court of Appeals on certiorari, prohibition and mandamus preciselyasking for a preliminary investigation before being forced to stand trial.

The petitioner did not, by posting bail, waive his right to preliminary investigation. Inthe instant case, petitioner Go asked for release on recognizance or on bail and forpreliminary investigation in one omnibus motion. He had thus claimed his right topreliminary investigation before respondent Judge approved the cash bond posted bypetitioner and ordered his release on 12 July 1991.

However, the failure to accord preliminary investigation, while constituting a denial of the appropriate and full measure of the statutory process of criminal justice, did notimpair the validity of the information for murder nor affect the jurisdiction of the trialcourt.

Accordingly, the 17 July 1991 order of respondent Judge recalling his own ordergranting bail and requiring petitioner to surrender himself within forty-eight (48) hoursfrom notice, was plainly arbitrary considering that no evidence at all — and certainlyno new or additional evidence — had been submitted to respondent Judge that couldhave justified the recall of his order issued just five (5) days before. It follows thatpetitioner was entitled to be released on bail as a matter of right.

The prevailing problem now is, how does the fact that, in the instant case, trial on themerits has already commenced, the Prosecutor having already presented four (4)

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witnesses, impact upon, firstly, petitioner's right to a preliminary investigation and,secondly, petitioner's right to be released on bail? Does he continue to be entitled tohave a preliminary investigation conducted in respect of the charge against him? Doespetitioner remain entitled to be released on bail?

As to preliminary investigation, petitioner remains entitled to it, although trial on the

merits has already began. Trial on the merits should be suspended or held inabeyance and a preliminary investigation forthwith accorded to petitioner because theconstitutional point is that petitioner was not accorded what he was entitled to by wayof procedural due process. Petitioner was forced to undergo arraignment and literallypushed to trial without preliminary investigation. If he submitted to arraignment attrial, petitioner did so "kicking and screaming."

In respect of the matter of bail, petitioner remains entitled to be released on bail as amatter of right. Should the evidence already of record concerning petitioner's guilt be,in the reasonable belief of the Prosecutor, strong, the Prosecutor may move in the trialcourt for cancellation of petitioner's bail. It would then be up to the trial court, after a

careful and objective assessment of the evidence on record, to grant or deny themotion for cancellation of bail.

To reach any other conclusions here, that is, to hold that petitioner's rights to apreliminary investigation and to bail were effectively obliterated by evidencesubsequently admitted into the record would be to legitimize the deprivation of dueprocess and to permit the Government to benefit from its own wrong or culpableomission and effectively to dilute important rights of accused persons well-nigh to thevanishing point.

ACCORDINGLY, the Court resolved to GRANT the Petition for Review on Certiorari. The

Order of the trial court dated 17 July 1991 is hereby SET ASIDE and NULLIFIED, and theDecision of the Court of Appeals dated 23 September 1991 hereby REVERSED.

The Office of the Provincial Prosecutor was ORDERED to conduct a preliminaryinvestigation of the charge of murder against petitioner Go, and to complete suchpreliminary investigation within a period of fifteen (15) days from commencementthereof. The trial on the merits of the criminal case in the Regional Trial Court wasSUSPENDED to await the conclusion of the preliminary investigation.

Meantime, petitioner was ORDERED released forthwith upon posting of a cash bailbond of P100,000.00. This release shall be without prejudice to any lawful order that

the trial court may issue, should the Office of the Provincial Prosecutor move forcancellation of bail at the conclusion of the preliminary investigation.

G.R. No. 130492 - January 31, 2001

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. SALVADOR ARROJADO, Accused- Appellant.

FACTS: Accused-appellant Salvador Arrojado and the victim Mary Ann Arrojado are firstcousins, their fathers being brothers. The victim's father, Alberto Arrojado, who was

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living in Canada, suffered a stroke for which reason he decided to come home toRoxas City and spend the remainder of his days there. The victim accompanied herfather to the Philippines. They eventually settled in a house in Barangay Tanque,Roxas City, where they lived on the financial support of the victim's sister Asuncion,who continued to live in Canada, and her brother Buenaventura, who lived in Manila.

Starting February 15, 1996, accused-appellant lived with the victim and her father. Hehelped care for the victim's father, for which he was paid a P1,000.00 monthly salary.

In the early morning of June 1, 1996, accused-appellant went to the house cousin,Erlinda Arrojado Magdaluyo, and reported that the victim had committed suicide. Inresponse, Erlinda, together with her husband Romulo Magdaluyo and her father Teodorico Arrojado, went with accused-appellant to the house in Barangay Tanwuewhere they found the victim dead. The victim, who was bloodied, was lying on her leftside facing the bedroom door with her hands clasped together. On her bed was arosary and a cruifix. Near her was a knife. Erlinda recognized it to be the knife kept inthe kitchen. Erlinda also noticed that the electric fan was turned on full blast, while all

the windows were closed except the window on the east side which was slightly open.As he went to the other room, where the victim's father stayed, accused-appellant toldErlinda that he was afraid he might be suspected as the one responsible for thevictim's death.8

The matter was reported to the police which noticed that the victim's room "was veryneat as if nothing happened." The police saw no signs of forcible entry. 9 They made asketch of the victim's position in relation to the whole house and took pictures of her.

Dr. Ma. Lourdes Roldan, of the Roxas City Health Office, conducted the postmortemexamination of the victim at 1:30 p.m. of June 1, 1996. In the victim's death certificate

she listed "HEMORRHAGIC SHOCK as the victim's immediate cause of death and"multiple stab wounds" as the antecedent cause. There are ten stab wounds withdifferent depths.

There are witnesses who testified that victim and the accused had a strainedrelationship.Erlinda Arrojado Magdaluyo, testified also that so far as she knew, onlyaccused-appellant harbored a grudge against the victim, and that accused-appellanthimdelf told her so.

However, the accused said that the victim committed suicide. He contended that heonly saw one stab wound, the nine stab wounds were possibly committed before the

doctor conducted the examination. Accused-appellant's theory that the victimcommitted suicide and that it was only after she was found dead that she was againstabbed to make it appear that she had been killed. He also questioned the credibilityof the witnesses presented as there are inconsistencies of the oral testimonypresented such as “loving friendly, and reasonable" and yet strict and domineering”.

The trial court held that there was sufficient circumstantial evidence to convictaccused-appellant for the victim's death. The Lower Court finds and declares accusedSalvador Arrojado GUILTY beyond reasonable doubt of the heinous crime of murder,defined and penalized by Art. 248 of the Revised Penal Code, as amended by Section 6

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of Republic Act 7659, and, there being no aggravating circumstance, herebysentences him to imprisonment of thirty (30) years of reclusion perpetua, and toindemnity the heirs of the deceased Mary Ann Arrojado in the amount of P60,000.00,pay them moral damages of P80,000.00, and pay the costs of this action.

ISSUE: Whether or not the conviction and the penalty of the accused proper.

HELD:

The evaluation of the trial court of the credibility of witnesses will not be disturbed on

appeal unless it is shown that it overlooked certain facts or circumstances of

substance that, if considered, could have affected the outcome of case. This is

because the trial court is in a better position to decide the question of credibility

having heard the witnesses and observed their deportment during the trial.

The murder in this case took place after the effectivity of R.A. No. 7659 on December31, 1993 which increased the penalty for murder from reclusion temporal maximum todeath to reclusion perpetua to death. In view of the presence of the aggravatingcircumstance of abuse of confidence and in accordance with Art. 63(1) of the RevisedPenal Code, the trial court should have imposed the penalty of death on accused-appellant. However, on December 1, 2000, the Revised Rules of Criminal Proceduretook effect, requiring that every complaint or information state not only the qualifyingbut also the aggravating circumstances.7 1 This provision may be given retroactiveeffect in the light of the well settled rule that "statutes regulating the procedure of thecourt will be construed as applicable to actions pending and undetermined at the timeof their passage. Procedural laws are retroactive in that sense and to that extent." 72

The aggravating circumstance of abuse of confidence not having been alleged in theinformation, the same therefore could not be appreciated to raise accused-appellant'ssentence to death.

G.R. No. 75034 June 30, 1988

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,vs.FRANCISCO ALBIOR y YBIOA CARLOS MANALANGSANG y BAKATANORODOLFO VASQUEZ y BALUGO, JOHN DOE alias "JUN" and PETER DOE alias"BERNARDO," accused, FRANCISCO ALBIOR, accused-appellant.

FACTS:

This is an appeal interposed by a suspected look-out sentenced to life imprisonmentfor robbery and the gruesome rape and slaying of a young nurse in her own bedroom.Accused-appellant Francisco Albior was among those charged for the crime of Robberywith Homicide with Rape. Upon arraignment, accused-appellant Albior, together withaccused Manalangsang and Vasquez pleaded "not guilty" to the charge. Accused JohnDoe alias "Jun" and Peter Doe alias "Bernardo" remained at large. Subsequently,accused Manalangsang withdrew his plea of "not guilty" and changed it to "guilty" andhe was correspondingly sentenced to suffer the penalty of reclusion perpetua, toindemnify the heirs of the victim in the amount of P10,000.00 and to pay one-third

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(1/3) of the costs, without subsidiary imprisonment in case of insolvency. Accused-appellant Albior and accused Vasquez were duly tried.

After trial, the court a quo rendered judgment on October 24, 1984, finding accused-appellant Albior guilty beyond reasonable doubt of the crime of robbery with homicidewith rape and sentenced him to suffer the penalty of reclusion perpetua. Accused

Vasquez was found guilty beyond reasonable doubt as an accessory to the crime of robbery and was sentenced to suffer imprisonment for four (4) months and one (1)day of arresto mayor in its medium period, and to pay one-third (1/3) of the costs. Asaccused Vasquez had already served the term of his penalty while under preventivedetention, he was released while accused-appellant was transferred to the NationalPenitentiary for service of his sentence. Thus, only accused-appellant Albior interposedan appeal.

ISSUES:

1. Whether or not the Court A Quo gravely erred in admitting prosecution evidence

which were obtained in violation of accused’s constitutional rights.

2. Whether or not the other evidence adduced by the prosecution would sustain afinding that accused-appellant Albior was guilty beyond reasonable doubt of thecrime charged.

RULING:

On the basis of the evidence, the trial court concluded that there was a conspiracyamong Bernardo Reyes (the mastermind), Carlos Manalangsang and Francisco Albiorto rob the house of the victim; that while Manalangsang and Albior served as look-

outs, Reyes entered the house of the victim by detaching a glass window from itsframe and raped her and boxed and beat her to death. with a wooden baluster and,thereafter, took several items, including the typewriter, the shoes, a bedsheet and thevictim's panty. The trial court dismissed Albior's defense of alibi on the grounds that itwas not corroborated and that it was not physically impossible for him to have been atthe scene of the crime considering its proximity to the place where he claimed to havebeen. Further, Albior's extra-judicial confession was adjudged to have been voluntarilyand freely given.

With regard to Albior's sworn statement, the Court finds obvious defects that wouldrender it inadmissible in evidence. The lack of assistance of counsel in Albior's waiver

of his right to counsel is evident from the testimony of the investigating officer. Itmust also be noted that although Albior hardly speaks Tagalog, Cebuano being hisnative dialect, the sworn statement is in Tagalog. It does not suffice that aninterpreter, an agent of the CIS, was present during the interrogation (as stated in thesworn statement) because by virtue of its being written in Tagalog, Albior wasdeprived of the opportunity to comprehend through his own reading what he wassigning. Finally, the testimony of Albior that he agreed to sign the sworn statementbecause he was promised that he would be released adds to the conclusion that hedid not understand what he was signing. No reasonable person would believe the

7/27/2019 RULE 112 & 113 cases.doc


rule 112 & 113 cases.doc

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