THE PEOPLE OF THE PHILIPPINES, petitioner, vs. THE CITY COURT OF MANILA, BRANCH XI and FRANCISCO GAPAY y MALLARES, respondents.

 FIRST DIVISION

G.R. No. L-36342 April 27, 1983

THE PEOPLE OF THE PHILIPPINES, petitioner,

vs.

THE CITY COURT OF MANILA, BRANCH XI and FRANCISCO GAPAY y MALLARES, respondents.

Solicitor General for petitioner.

Mario F. Estayan for respondents.

R E S O L U T I O N

 

RELOVA, J:

This is a petition to review the order, dated November 17, 1972, of the City Court of Manila, Branch XI, dismissing the information for homicide thru reckless imprudence filed against private respondent, Francisco Gapay y Mallares, in Criminal Case No. E-505633 on the ground of double jeopardy. Respondent court held that the private respondent having been previously tried and convicted of serious physical injuries thru reckless imprudence for the resulting death of the victim would place the accused in double jeopardy.

The question presented in this case is whether a person who has been prosecuted for serious physical injuries thru reckless imprudence and convicted thereof may be prosecuted subsequently for homicide thru reckless imprudence if the offended party dies as a result of the same injuries he had suffered.

In Melo vs. People, 85 Phil. 766, this Court held that "where after the first prosecution a new fact supervenes for which the defendant is responsible, which changes the character of the offense and, together with the facts existing at a time, constitutes a new and distinct offense, the accused cannot be said to be in second jeopardy if indicted for the second offense." However, the trial court held that the doctrine of Melo vs. People does not apply in the case at bar in view of this Court's ruling in People vs. Buan, 22 SCRA 1383, that Article 365 of the Penal Code punishes the negligent state of mind and not the resulting injury. The trial court concluded that once prosecuted for and convicted of negligence, the accused cannot again be prosecuted for the same negligence although for a different resulting injury.

In the case at bar, the incident occurred on October 17, 1971. The following day, October 18, an information for serious physical injuries thru reckless imprudence was filed against private respondent driver of the truck. On the same day, the victim Diolito de la Cruz died.

On October 20, 1972, private respondent was arraigned on the charge of serious physical injuries thru reckless imprudence. He pleaded guilty, was sentenced to one (1) month and one (1) day of arresto mayor, and commenced serving sentence.

On October 24, 1972, an information for homicide thru reckless imprudence was filed against private respondent.

On November 17, 1972, the City Court of Manila, upon motion of private respondent, issued an order dismissing the homicide thru reckless imprudence case on the ground of double jeopardy.

Well-settled is the rule that one who has been charged with an offense cannot be charge again with the same or Identical offense though the latter be lesser or greater than the former. However, as held in the case of Melo vs. People, supra, the rule of Identity does not apply when the second offense was not in existence at the time of the first prosecution, for the reason that in such case there is no possibility for the accused, during the first prosecution, to be convicted for an offense that was then inexistent. "Thus, where the accused was charged with physical injuries and after conviction, the injured person dies, the charge for homicide against the same accused does not put him twice in jeopardy." Stated differently, where after the first prosecution a new fact supervenes for which the defendant is responsible, which changes the character of the offense and, together with the facts existing at the time, constitutes a new and distinct offense, the accused cannot be said to be in second jeopardy if indicted for the new offense.

As stated above, the victim Diolito dela Cruz died on the day the information was filed, and the accused was arraigned two (2) days after, or on October 20, 1972. When the information for homicide thru reckless imprudence was, therefore, filed on October 24, 1972, the accused-private respondent was already in jeopardy.

In his memorandum, the Solicitor General made mention of the fact that on October 21, 1972, the City Fiscal filed an Urgent Motion asking that the "hearing and arraignment of this case be held in abeyance for there is information that the victim, Diolito dela Cruz died, and the information would have to be amended." Be that as it may, the fact remains that the victim Diolito dela Cruz died on October 18 "one (1) day after the accident and the arrest of the respondent Gapay" (P. 103, Rollo) and that on October 20, 1972, the accused was arraigned, pleaded guilty and sentenced accordingly. Thus, jeopardy had attached and no new fact supervened after the arraignment and conviction of the accused.

ACCORDINGLY, the order of dismissal of the lower court is affirmed.

SO ORDERED.

Melencio-Herrera and Plana, JJ., concur.

Teehankee (Chairman), J., took no part.

Separate Opinions

GUTIERREZ, JR., J., concurring opinion:

I am constrained to concur because the records are inadequate to show that the arraignment, while hasty and surrounded by seemingly suspicious circumstances, was tainted by fraud, collusion, or other form of chicanery sufficient to sustain a finding that the State was denied due process (Cf. Silvestre v. Military Commission No. 21, 82 SCRA 10).

The incident happened on October 17, 1972. The information for serious physical injuries through reckless imprudence was filed on October 18, 1972. The victim of the accident died on the same day.

Knowing the volume of the case load in the City Court of Manila and the inevitably slow pace of work even when urgency is dictated by the nature of cases with the Fiscal or before the various salas, it is most surprising that the accused could have been arraigned on October 20, 1972 for the charge of serious physical injuries only three days after the incident, two days after the filing of the information, and two days after the death of the victim. The accused does not appear to have been a detention prisoner necessitating his immediate arraingment right after the filing of the information. The only sensible conclusion to draw from the above circumstances is that the accused was hastily made to plead guilty to serious physical injuries to foreclose a charge for homicide even before it could be filed. In such a case, there would be a trifling with the processes of justice and a collusive effort amounting to fraud or deceit to deprive the State of its authority to prosecute an accused for the correct offense. While this conclusion is most likely, it remains speculative, however, because we have a criminal case before us. The records fail to show what were the results of an investigation, if any was conducted to ascertain why the assistant city fiscal's suspicions were not aroused when the case was hurriedly set for arraignment, contrary to the usual procedures in the Manila City Court. Either the assistant city fiscal was naively new to the job, or he was hopelessly negligent, or he connived with the accused, in which case remedial measures are called for. At any rate, I concur in the affirmance of the order of dismissal in line with the many protections that the Constitution and the laws give to the accused in criminal prosecutions.

Vasquez, J., I join the concurring opinion of Mr. Justice Gutierrez, Jr.

Separate Opinions

GUTIERREZ, JR., J., concurring opinion:

I am constrained to concur because the records are inadequate to show that the arraignment, while hasty and surrounded by seemingly suspicious circumstances, was tainted by fraud, collusion, or other form of chicanery sufficient to sustain a finding that the State was denied due process (Cf. Silvestre v. Military Commission No. 21, 82 SCRA 10).

The incident happened on October 17, 1972. The information for serious physical injuries through reckless imprudence was filed on October 18, 1972. The victim of the accident died on the same day.

Knowing the volume of the case load in the City Court of Manila and the inevitably slow pace of work even when urgency is dictated by the nature of cases with the Fiscal or before the various salas, it is most surprising that the accused could have been arraigned on October 20, 1972 for the charge of serious physical injuries only three days after the incident, two days after the filing of the information, and two days after the death of the victim. The accused does not appear to have been a detention prisoner necessitating his immediate arraingment right after the filing of the information. The only sensible conclusion to draw from the above circumstances is that the accused was hastily made to plead guilty to serious physical injuries to foreclose a charge for homicide even before it could be filed. In such a case, there would be a trifling with the processes of justice and a collusive effort amounting to fraud or deceit to deprive the State of its authority to prosecute an accused for the correct offense. While this conclusion is most likely, it remains speculative, however, because we have a criminal case before us. The records fail to show what were the results of an investigation, if any was conducted to ascertain why the assistant city fiscal's suspicions were not aroused when the case was hurriedly set for arraignment, contrary to the usual procedures in the Manila City Court. Either the assistant city fiscal was naively new to the job, or he was hopelessly negligent, or he connived with the accused, in which case remedial measures are called for. At any rate, I concur in the affirmance of the order of dismissal in line with the many protections that the Constitution and the laws give to the accused in criminal prosecutions.

Vasquez, J., I join the concurring opinion of Mr. Justice Gutierrez, Jr.

ELADIO C. TANGAN, petitioner, vs. THE PEOPLE OF THE PHILIPPINES and THE HONORABLE RICARDO J. FRANCISCO, JUDGE OF THE REGIONAL TRIAL COURT, NATIONAL CAPITAL JUDICIAL REGION, MAKATI, METRO MANILA, BRANCH CXXXVI, respondents.

 SECOND DIVISION

G.R. No. 73963 November 5, 1987

ELADIO C. TANGAN, petitioner,
vs.
THE PEOPLE OF THE PHILIPPINES and THE HONORABLE RICARDO J. FRANCISCO, JUDGE OF THE REGIONAL TRIAL COURT, NATIONAL CAPITAL JUDICIAL REGION, MAKATI, METRO MANILA, BRANCH CXXXVI, respondents.

PARAS, J.:

This is a petition for certiorari with preliminary injunction seeking annulment of the resolution of respondent judge * dated January 9, 1986 denying petitioner's motion to quash information in Criminal Case No. 19350 for lack of merit and its resolution of March 5, 1986 likewise denying petitioner's motion for reconsideration.

Petitioner has been charged on July 1, 1985 before the Regional Trial Court of Makati, Branch 136 in an information that described the commission of the crime of murder with the use of an unlicensed firearm and docketed as Criminal Case No. 17587, as follows:

That on or about the Ist day of December, 1984, in the municipality of Paranaque, Metro Manila, Philippines spines and within the jurisdiction of thisHon. Ricardo J. Francisco, Judge of the Regional Trial Court, National Capital Judicial Region, Makati, Metro Manila, Branch CXXXVI. jurisdiction of this Honorable Court, the above-named accused, with intent to kill, with treachery and with the use of an unlicensed firearm, did then and there willfully, unlawfully and feloniously attack, assault, and shoot Generoso Miranda III hereby inflicting upon him mortal gunshot wounds which directly caused his death.

Contrary to law.

Before the scheduled date of arraignment on August 8, 1985, however, a new investigation of the case was made upon request of petitioner filed with the Office of the Provincial Fiscal of Pasig, Rizal (Rollo, p. 94). Subsequently, the offense charged was changed to homicide with the use of a licensed firearm, with the information amended on August 16, 1985 (Rollo, p. 19), as follows:

That on or about the 1st day of December, 1984 in the Municipality of Paranaque, Metro Manila Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with intent to kill and armed with a gun, did then and there willfully, unlawfully and feloniously attack, assault and shoot with the said firearm (licensed) one Generoso Miranda III, thereby hitting the latter in the abdomen and inflicting upon him mortal gunshot wounds which directly caused his death.

Contrary to law.

On September 4, 1985 petitioner entered a plea of "not guilty" to the amended charge of homicide (Rollo, p. 96).

On September 18, 1985 a resolution was issued by the Office of the Provincial Fiscal of Rizal finding probable cause to hold petitioner for illegal possession of firearms and ammunitions used in the commission of homicide as defined and punished under Section I of Presidential Decree 1866 (Rollo, p. 97) and on the same date, information was filed in the same court indicting petitioner for the offense (Rollo, p. 20) docketed as Criminal Case No. 19350, committed as follows:

That on or about the lst day of December, 1984 in the Municipality of Paranaque, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above- named accused willfully. unlawfully and feloniously had in his possession, custody and control a Smith & Wesson Cal. 38 revolver with Serial No. C 61898 (Yoke No. 7566) and five (5) live ammunition and one (1) empty shell without having procured the corresponding license or permit therefor and which the said accused used in the commission of the crime of homicide against the person of one Generoso Miranda III.

CONTRARY TO LAW.

On October 30, 1985 petitioner filed a motion to quash the information in Criminal Case No. 19350 on the grounds that: (1) the information charges more than one offense which are separately punishable under existing laws; (2) the criminal action or liability of the accused has been extinguished; and (3) the accused is in jeopardy of being convicted, or acquitted, of the offense charged (Rollo, p. 3).

On January 9, 1966 respondent judge issued the questioned resolution denying the motion to quash (Rollo, p. 22) stating:

The Court finds no merit in the first ground invoked by the defense. In alleging that the accused: "had in his possession, custody and control a Smith and Wesson Cal. 38 revolver with Serial No. C61898 (Yoke No. 7566) and five (5) five ammunition and one (1) empty shell without having procured the corresponding license or permit therefore and which the said accused used in the commission of the crime of homicide against the person of one Generoso Miranda III," the accused is not being charged with several distinct and separate offenses as defined in Section 1 of P.D. 1866. The information simply describes the mode or manner by which the crime or the violation of Section 1, PD 1866 was committed which is allowed under existing laws and jurisprudence (Ko Bu Lim v. Court of Appeals, 118 SCRA 573-581-582 (1982).

The Court likewise finds no merit in the second ground invoked by the defense. The so-called inconsistent stand adopted by the prosecution is not a ground for quashing the information which is valid on its face. Moreover, the information herein has the additional allegation that the accused has no permit for the firearm in question. A person may have the license to possess firearm, but may not necessarily have the necessary permit to carry the same outside his home. The so-called inconsistency therefore, granting arguendo, that there is, goes on as far only as the matter of license is concerned, and does not cover the matter of permit.

The third ground is likewise without merit, not because there has been no conviction or acquittal yet in the two cases pending before this court, as the prosecution contends, but because the offense charged in the two informations, albeit, based on the same act or incident, are entirely different offenses. One is for homicide penalized under the Revised Penal Code, the other is for violation of Section 1 of PD 1866 which is a special law. For double jeopardy to come into play, the subsequent indictment must be for the same offense. Except in the case (then) of an act being punished by a law and an ordinance in which event a conviction or acquittal tinder either constitutes a bar to another prosecution, there must be a showing of the crimes charges being Identical. It is not enough that the complaint or information is based on the same act. ... (People v. Mencias, 46 SCRA 88 95-96 [1972]).

IN VIEW OF THE FOREGOING CONSIDERATIONS, the motion to quash is hereby denied.

On January 24, 1986 petitioners moved for the reconsideration of the resolution of January 9, 1986 built the same was again denied by respondent judge in an order dated March 5, 1986, which reads:

Upon evaluation of the grounds of the motion for reconsideration filed by the accused as well as the opposition thereto, the Court finds no cogent reason to disturb its resolution dated January 9, 1986, and therefore, denies the same.

Hence, this petition filed with this Court on March 26, 1986 (Rollo, p. 2).

On April 23, 1986 the Court resolved to require the respondents to comment thereon and to issue a temporary restraining order to enjoin respondent Judge, his agents, representatives; and/or any person or persons, acting upon his order or in his place or stead from further proceeding with Criminal Case No. 19350 (Rollo, pp. 2626A)

On June 4, 1986 private respondent (complainant in the lower court) represented by Quisumbing & Associates and Quisumbing Law Office filed his comment on the petition, praying that the petition be dismissed (Rollo, p. 37). The Office of the Solicitor General, on the other hand, filed its comment on Jane 11, 1986, praying that the petition be granted. In the resolution of June 18, 1986 the Court gave due course to the petition and required the parties to file simultaneous memoranda.

On July 16, 1986 Atty. Alfonso M. Cruz, in collaboration with the law firm of NV Quisumbing and Associates filed a supplemental comment for private respondent (Rollo, p. 65), which was noted by the Court in its resolution dated August 17, 1986 (Rollo, p. 87).

On August 4, 1986 the Office of the Solicitor General filed a manifestation and motion for leave to adopt its comment as part of memorandum, for the People of the Philippines (Rollo, p. 74). The memorandum for the petitioner was filed on August 4, 1986 (Rollo, p. 78) while the memorandum for private respondent was filed on August 19, 1986 (Rollo, p. 93).

Petitioner claims that the information in Criminal Case No. 19350 should be quashed on the following grounds:

1. The information charges more than one offense which are separately punishable under different laws;

2. The criminal action or liability of herein petitioner has been extinguished; and,

3. Herein petitioner is in jeopardy of being tried, convicted and/or punished twice for the same offense.

The pivotal issue is whether or not the filing of the information in Criminal Case No. 19350 for Illegal Possession of Firearm and Ammunition used in the commission of Homicide defined and punished under Section I of Presidential Decree No. 1866, arising out of the same incident which is the subject matter of the previous amended information in Criminal Case No. 17587, namely the shooting to death of Generoso Miranda III, subjects petitioner to jeopardy in violation of the constitutional mandate against putting a person twice in jeopardy of punishment for the same offense.

The answer is in the negative.

To raise the defense of double jeopardy, three requisites must be present: (1) a first jeopardy must have been attached prior to the second; (2) the first jeopardy must have been validly terminated; and (3) the second jeopardy must be for the same offense as that in the first (People v. Bocar, 138 SCRA 166 [1985]).

Legal jeopardy attaches only: (a) upon a valid indictment; (b) before a competent court; (c) after arraignment; (d) a valid plea having been entered; and (e) the case was dismissed or otherwise terminated without the express consent of the accused. (People v. Bocar, supra; Buscayno v. Military Commission Nos. 1, 26 and 25,109 SCRA 273 [1981]).

There is no double jeopardy in the filing of the information for homicide in Criminal Case No. 17587 and in the filing of the information for illegal possession of firearms and ammunition used in the commission of homicide in Criminal Case No. 19350 for the simple reason that the first jeopardy had not yet attached. It is well-settled that the mere filing of two informations or complaints charging the same offense does not yet afford the accused in those cases the occasion to complain that he is being placed in jeopardy twice for the same offense, for the simple reason that the primary basis of the defense of double jeopardy is that the accused has already been convicted or acquitted in the first case or that the same has been terminated without his express consent. It is the conviction or jeopardy of being convicted or the acquittal of the accused or termination of the case that bars further prosecution of the same offense or any attempt to commit the same or frustration thereof, or for any offense which necessarily includes or is necessarily included in the offense charged in the former complaint or information. (Bulaong v. People, 17 SCRA 746 [1966]; Silvestre v. Military Commission No. 21, 82 SCRA 10 [1978]; Buscayno v. Military Commission Nos. 1, 2, 6 and 25, supra People vs. Milfores 115 SCRA 570 [1982]). (Rule 117, Sec. 2(h), Rules of Court)

The case of Lazaro v. People (112 SCRA 430 [1982]) cited by the Solicitor General, in his comment on the petition, is not applicable to the case at bar primarily because the petitioner in the cited case was already convicted in the Military Court of illegal possession of unlicensed firearm used in committing parricide and the penalty of death had already been imposed upon her, when the parricide case was set for trial in the Circuit Criminal Court. Hence, it is obvious that in said case, legal jeopardy had already attached.

For the same reason, the cases of People v. Francisco Diaz (94 Phil. 714 [1950] and Yap v. Lutero (105 Phil. 1307 [1959]), cited by the petitioner are not applicable, for in both, all the requisites for the defense of double jeopardy are present.

In People v. Diaz a second information charging Diaz with damage to property thru reckless imprudence was filed in the Court of First Instance of Rizal after the first case accusing Diaz of violation of Section 52 of Act 3992 known as the Revised Motor Vehicle Law was dismissed by the Municipal Court of Pasay City for failure of the government to prosecute.

While in the Yap case, the petitioner was charged in the Municipal Court of Iloilo City, with reckless driving in violation of a city ordinance and later, charged again in the same court, with serious physical injuries through reckless imprudence. Petitioner moved to quash the latter information on the ground of double jeopardy which was denied by respondent Judge. Meanwhile, he was acquitted in the first case. The issue in the case was whether or not under the second information petitioner could, if he failed to plead double jeopardy, be convicted of the same act charged in the first case in which he had already been acquitted. In ruling in the affirmative, the Court held that under certain conditions, one offense may include the other, and — accordingly, once placed in jeopardy for one, the plea of double jeopardy may be in order as regards the other, as in the Diaz case.

As for the other grounds for a motion to quash raised by the petitioner, there is no basis for the claim that the information in Criminal Case No. 19350 charging petitioner with alleged possession of firearms and ammunitions used in the commission of homicide as defined and punished under Section 1 of P.D. 1866 charges more than one offense. In the same Lazaro case (supra) involving almost Identical circumstances to the case at bar except as to the attachment of jeopardy in the former, the Court in ruling that there is only one offense charged, held that parricide is an essential ingredient of qualified illegal possession of firearm which is punishable by death. Similarly, in the instant case the offense of illegal possession of firearms is qualified by its being used to commit homicide and subjects petitioner if found guilty thereof to death penalty which under the new Constitution has been reduced to reclusion perpetua. Thus, the allegation in the information that the unlicensed firearm was used in the commission of the crime of homicide against the person of one Generoso Miranda III does not charge petitioner in the same information with the separate offense of homicide, but simply describes the mode or manner by which the violation of Section I of P.D. 1866 was committed.

Neither is there a basis for petitioner's claim that his criminal liability for the offense charged in the information in Criminal Case No. 19350 has been extinguished.

Article 89 of the Revised Penal Code enumerates the causes that totally extinguish criminal liability as follows: (1) the death of the convict, as to the personal penalties; and as to pecuniary penalties, liability therefore is extinguished only when the death of the offender occurs before final judgment18; (2) service of the sentence; (3) amnesty, which completely extinguishes the penalty and all its effects; (4) absolute pardon; (5) prescription of the crime; (6) prescription of the penalty; (7) the marriage of the offended woman, as provided in Article 344 of the Code.

In the case at bar, it is evident that criminal liability in the homicide case has not been extinguished under any of the above-mentioned causes. That petitioner entered a plea of not guilty to the offense charged in Criminal Case No. 17587 which alleged that he committed homicide with the use of a licensed firearm is immaterial as such circumstance does not operate to extinguish his criminal liability for the offense charged in Criminal Case No. 19350.

It appears from the records that Criminal Case No. 19350 was filed in the same branch of the same court (Rollo, p. 3). Hence, to protect the right of the accused to speedy justice while at the same time affording the State the opportunity to prosecute and convict, a joint hearing of the two cases could be conducted so that the accused can be tried as if under one information.

PREMISES CONSIDERED, (a) the petition is hereby dismissed, for lack of merit; (b) the restraining order issued by the Court on April 23, 1986 is permanently lifted; and (c) Criminal Cases Nos. 17850 and 19350 are consolidated and a joint hearing thereon is ordered conducted.

This decision shall be immediately executory.

SO ORDERED.

Yap (Chairman), Melencio-Herrera, Padilla and Sarmiento, JJ., concur.

PEOPLE OF THE PHILIPPINES, and ASST. PROV'L FISCAL F. VISITACION, JR., petitioners, vs. HONORABLE MIDPANTAO L. ADIL, Presiding Judge, Court of First Instance of Iloilo, Branch II, and MARGARITO FAMA, JR., respondents.

 SECOND DIVISION

G.R. No. L-41863 April 22, 1977

PEOPLE OF THE PHILIPPINES, and ASST. PROV'L FISCAL F. VISITACION, JR., petitioners,

vs.

HONORABLE MIDPANTAO L. ADIL, Presiding Judge, Court of First Instance of Iloilo, Branch II, and MARGARITO FAMA, JR., respondents.

Acting Solicitor General Hugo E. Gutierrez, Jr., Assistant Solicitor General Alicia V. Sempio-Diy and Solicitor Amado D. Aquino for petitioners.

Fama & Jimenea for private respondent.

BARREDO, J:

Petition for certiorari; to set aside the orders of respondent judge dated September 22, 1975 and October 14, 1975 dismissing Criminal Case No. 5241 of the Court of First Instance of Iloilo against private respondent Margarito Fama, Jr., said dismissal being predicated on the ground of double jeopardy, in view of the dismissal of a previous charge of slight physical injuries against the same respondent for the same incident by the Municipal Court of Janiuay, Iloilo in Criminal Case No. 3335, notwithstanding that in the information in the first-mentioned case, it was alleged that the injuries sustained by the offended party, aside from possibly requiring medical attendance from 6 to 9 days barring complications", as was alleged in the information in Criminal Case No. 3335, had left "a permanent sear and deform(ed) — the right face of (said offended party) Miguel Viajar."

The first criminal complaint filed against respondent Fama Jr. on April 15, 1975 (Case No. 3335) was as follows:

That at about 5:30 o'clock in the afternoon of April 12, 1975, at Aquino Nobleza St., Municipality of January, Province of Iloilo, Philippines, and within the jurisdiction of this Honorable Court the above-named accused, while armed with a piece of stone, did then and there willfully, unlawfully and feloniously, assault, attack and use personal violence upon one Miguel Viajar by then hurling the latter with a stone, hitting said Miguel Viajar on the right cheek, thereby inflicting physical injuries which would have required and will require medical attendance for a period from 5 to 9 days barring complication as per medical certificate of the physician hereto attached.

CONTRARY TO LAW. (Pp. 93-94, Record)

Arraigned on July 7, 1975, the accused entered a plea of not guilty.

Meanwhile, on June 8, 1975, complainant Viajar filed a letter-complaint with the Provincial Fiscal of Iloilo charging Atty. Alfredo Fama, Raul Fama and herein respondent Margarito Fama, Jr. with serious physical injuries arising from the same incident alleged in above Criminal Case No. 3335. After conducting a preliminary investigation, under date of July 28, 1975, the Fiscal filed in the Court of First Instance of Iloilo an information, but only against respondent Fama Jr., (Case No. 5241) for serious physical injuries as follows:

That on or about April 12, 1975, in the Municipality of January, Province of Iloilo, Philippines, and within the jurisdiction of this Court, the said accused, with deliberate intent, and without any justifiable motive, armed with pieces of stone did then and there willfully, unlawfully and feloniously attack, assault and throw pieces of stone at Miguel Viajar, hitting him on the lower right eye which would heal from five (5) to nine (9) days barring complications but leaving a permanent scar and deforming on the right face of said Miguel Viajar.

CONTRARY TO LAW. (Pp. 94-95, Record)

On August 1, 1975, Fama Jr. filed an urgent motion to defer proceedings in Criminal Case No. 5241, claiming that since he was already charged and pleaded not guilty in Criminal Case No. 3335, he would be in double jeopardy, if Case No. 5241 were to be prosecuted. This motion was opposed by the Fiscal and the Court required both parties to file their respective memorandum on the issue of double jeopardy.

In the meantime, the Fiscal after filing Case No. 5241, sought the dismissal of Case No. 3335, but the Municipal Court did not act on said motion. Instead, the case was set for hearing, and in view of the postponements asked by the Fiscal in order to await the resolution of the issue of double jeopardy in Case No. 5241, on September 11, 1975, the following order was entered:

Under our democratic and constituted system of government litigants before our courts of justice, plaintiffs and defendants, complainants and accused are entitled to the equal protection of our laws. More is an accused, the trial of his case has been repeatedly postponed for several times by this Court in the exercise of its sound discretion at the instance of the prosecution. So, when this case was called for hearing on the afternoon of September 1, 1975 the accused through counsel vigorously objected to another postponement and moved for the dismissal of the case against him. To grant another postponement as sought by the Fiscal against the vehement, strong and vigorous objection of the accused is to the mind of the Court, no longer an exercise of sound discretion consistent with justice and fairness but a clear and palpable abuse of discretion amounting to a serious denial to, and a grave violation of, the right of the accused to a speedy trial to which he is rightfully entitled to under Section 16 of Article IV, (Bill of Rights) of the Philippine Constitution.

IN VIEW OF THE FOREGOING, the above-entitled case is hereby ordered dismissed. The Cash Bond posted by the accused is hereby ordered cancelled and released (Pp. 96-97, Record.)

Whereupon, on even date, Fama Jr. filed an addendum to his memorandum in Case No. 5241 inviting attention to the above dismissal order and reiterating his theory of double jeopardy. On September 22, 1975, respondent court issued the impugned order sustaining the contention of double jeopardy and dismissing Case No. 5241. The prosecution's motion for reconsideration was denied in the other assailed order of October 14, 1975, respondent judge relying on the ruling laid down in Peo. vs. Silva, 4 SCRA 95.

In brief, what happened here was that when Case No. 3335 was filed in the inferior court of January, the charge against Fama Jr. had to be for slight physical injuries only, because according to the certification of the attending physician, the injuries suffered by the offended party Viajar, would require medical attendance from 5 to 9 days only "baring complications." Indeed, when the complaint was filed on April 15, 1975, only three days had passed since the incident in which the injuries were sustained took place, and there were yet no indications of a graver injury or consequence to be suffered by said offended party. Evidently, it was only later, after Case No. 3335 had already been filed and the wound on the face of Viajar had already healed, that the alleged deformity became apparent.

Now, expert evidence is not needed for anyone to understand that the scar or deformity that would be left by a wound on the face of a person cannot be pre-determined. On the other hand, whether or not there is actually a deformity on the face of Viajar is a question of fact that has to be determined by the trial court. The only issue We are to resolve here is whether or not the additional allegation of deformity in the information in Case No. 5241 constitutes a supervening element which should take this case out of the ruling in People vs. Silva cited by respondent court.

In Silva, there was no question that the extent of the damage to property and physical injuries suffered by the offended parties therein were already existing and known when the prior minor case was prosecuted, What is controlling then in the instant case is Melo vs. People, 85 Phil. 766, in which it was held:

This rule of identity does not apply, however, when the second offense was not in existence at the time of the first prosecution, for the simple reason that in such case there is no possibility for the accused during the first prosecution, to be convicted for an offense that was then inexistent Thus, where the accused was charged with physical injuries and after conviction the injured dies, the charge of homicide against the same accused does not put him twice in jeopardy.

So also is People vs. Yorac, 42 SCRA, 230, to the following effect:

Stated differently, if after the first. prosecution 'a new fact supervenes on which defendant may be held liable, resulting in altering the character of the crime and giving rise to a new and distinct offense, 'the accused cannot be said to be in second jeopardy if indicted for the new offense.

In People vs. Buling, 107 Phil. 112, We explained how a deformity may be considered as a supervening fact. Referring to the decision in People vs. Manolong, 85 Phil. 829, We held:

No finding was made in the first examination that the injuries had caused deformity and the loss of the use of the right hand. As nothing was mentioned in the first medical certificate about the deformity and the loss of the use of the right hand, we presumed that such fact was not apparent or could have been discernible at the time the first examination was made. The course (not the length) of the healing of an injury may not be determined before hand; it can only be definitely known after the period of healing has ended. That is the reason why the court considered that there was a supervening fact occuring since the filing of the original information.

In other words, in the peculiar circumstances of this case, the plea of double jeopardy of private respondent Fama Jr., cannot hold. It was, therefore, a grave error correctible by certiorari for respondent court to have dismissed Criminal Case No. 5241.

ACCORDINGLY, the orders of September 22, 1975 and October 14, 1975 herein complained of are hereby set aside and respondent court is ordered to proceed with the trial and judgment thereof according to law. Costs against private respondent Fama Jr.

Fernando (Chairman), Antonio, Aquino and Concepcion, Jr., JJ., concur.

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. PABLO MOLERO, defendant-appellant.

 SECOND DIVISION

G.R. No. L-67842 September 24, 1986

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
PABLO MOLERO, defendant-appellant.

GUTIERREZ, JR., J.:

Appellant Pablo Molero was charged with the crime of rape by his own daughter Pacita Molero in a complaint filed in the Court of First Instance of Negros Oriental. The criminal complaint dated March 30, 1978 alleged:

That on or about the 5th day of February, 1976, on the banks of the river Siaton at Sitio Balogo, Barangay Tamlang, Municipality of Santa Catalina, Province of Negros Oriental, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with grave abuse of confidence being the father of the herein complainant, with force and intimidation by brandishing a bolo in threatening the undersigned that if the latter would not submit to his carnal desires he would kill the undersigned and all the members of the family, did then and there wilfully, unlawfully and feloniously have carnal knowledge with the undersigned complainant against the will of the latter.

The facts established by the prosecution and accepted by the trial court as basis for the judgment of conviction are summarized by the court as follows:

It appears from the evidence particularly in the testimony of complainant Pacita Molero that on February 5, 1976 at about 9:00 o'clock in the morning, her father, Pablo Moler, told her to go with him to the Siaton River at Tamlang, Sta. Catalina, Negros Oriental, about a kilometer away from their house ostensibly to catch shrimps and perhaps fish presumably for viand for the family that day. Pacita was the third among the seven children of Pablo. On February 5, 1976, she was barely 17 years young having been born on November 11, 1958. Obeying the command of her father, she went with him to the Siaton River which evidently was a secluded area in the mountain barrio of Tamlang. As they reached the river and while walking along its bank, with Pacita ahead and followed by her father, all so suddenly Pacita was hugged from behind by her father, and she staggered and fell to the ground face up. He fell too as he was holding her left hand placing it on her back while he knelt on her right arm. She tried to struggle but he unsheathed his harp bolo (locally known as PINUTI) and placed it along her side. He then proceeded to pull up her dress and remove her short pants and panty. She cried saying 'why are you doing this to me' and he only answered 'you shut up.' (Tsn-Gertrudes Tangon, Dec. 7, 1978, page 12 of her transcript and page 247 of record). Then he unbuttoned his pants, let out his penis and lay on top of her and did the push and pull movement in sexual intercourse. She tried to kick him but he again held the unsheathed bolo which was placed on her side. Afraid that he might do her harm with the bolo if she continued to put up resistance, and obviously because of his moral ascendancy over her, the accused succeeded in having sexual intercourse with his daughter and the latter again cried.

After he satisfied his carnal lust, he stood up and the complainant likewise stood up and put on her panties and pants and proceeded home. Before she walked home, the accused warned her not to tell her mother of what happened otherwise he would kill all of them . As she walked home, she noticed that her father followed her and did not proceed anymore in catching fish or shrimps. She surmissed that he followed her, so she would not have the opportunity to tell her mother of what happened until three days later or on February 8, 1976. Among others, Pacita Molero said:

I just decided to report the matter to my mother whether he will kill all of us because I could no longer endure what he had been doing to me.' (Tsn-Gertrudes Tangon, page 14 of transcript and page 249 of record)

Upon being informed of the incident her mother told her to just keep quiet for the moment as they would report the matter to the police authorities soon. They were secretive about their plan to report to the police because the mother and the daughter and the whole family knew that the accused was quite a fierce man, a cruel husband and a merciless father.

On February 11, 1976, Pacita Molero and her mother went to the office of the Station Commander of Pamplona, Negros Oriental, to report the incident. The accused was also called to the office and the accused and his daughter had a confrontation before the Station Commander. The accused asked 'what is this all about, Pacita' and she answered saying 'this could not have happened if you did not abuse me.' (Tsn-Nena S. Saad, Dec. 5, 1978, page 15 of her transcript, page 219 of record). It would seem that the case was too serious for the station Commander of Pamplona to handle, so the complainants were advised to report to the PC Headquarters at barrio Palanas.

At the PC Headquarters the complaint was investigated by Patrolman Arturo Adriatico Sr. who took down the statement of Pacita Molero and her mother. The accused was likewise investigated by Adriatico on February 25, 1976, but the accused did not want the investigation to be continued beacuse according to him this was just their 'own problem.' Asked to elaborate what he meant by 'own problem' the accused said 'kaugalingon ra nakong sala sa akong pagpuyo' which in English , means 'it is my own fault in my family life.' Asked to elaborate further on his last statement, the accused said:

Nga akong nahapanglapasan ang salingsing sa sacramento sa among pagpuyo nga ang akong anak babaye akong gibuongan sa iyang dumgog

which in English means:

I have commited a wrong against my own daughter wherein I destroyed her virtue as a woman.

These statement above quoted are found in the sworn statement of the accused (Exhibit "B" ) which was testified to by Pat. Arturo Adriatico, Sr.

In connection with the investigation of the complaint of Pacita Molero, Dr. Enofreda Abordo-Sebul testified that she conducted an internal and external examination of Pacita Molero and she found that her vaginal opening admitted two fingers freely and easily and there were old lacerations of the hymen at two o'clock , three o'clock, five o'clock , six o'clock , seven o'clock, nine o'clock, ten o'clock and twelve o'clock, thus showing that Pacita Molero had several previous sexual intercourses, although the cervical smear showed no signs of spermatozoa.

The appellant denied the charge. According to him, he could not have committed the crime because on February 5, 1976, he was already confined in the provincial jail and that he had been in jail since December 7, 1975.

The appellant also denied any knowledge of the sworn statement he made "because I am an illiterate" (TSN, March 8, 1982, p. 11). He, however, admitted that he was investigated by PC soldiers before he was placed in the stockade.

During the investigation, he denied the rape charge filed against him by his own daughter "because as a man, I have been earning my living for I have masters to serve like my stomach and my children. So, I have to work in my own humble way." (TSN, March 8, 1982, p. 12) Moreover, he stated that before the investigation started he was not informed of his constitutional rights to remain silent and to counsel; that he was not assisted by counsel during the investigation and that the first time he had a lawyer was at the trial of the instant case.

The appellant's defense of alibi was readily refuted by Benjamin Alcorcon, Supervising Prison Guard of the Negros Oriental Provincial Jail who informed the court that according to the records of the Provincial Jail, the appellant was committed to the Jail only on December 2, 1976 and that definitely on February 5, 1976, he was not yet confined there.

The trial court found the appellant guilty beyond reasonable doubt of the crime of Rape as defined and penalized under Art. 335 of the Revised Penal Code. He was sentenced to suffer the penalty of Reclusion Perpetua and to indemnify Pacita Molero the sum of P10,000.00 and to pay the costs of this action.

The appellant submits that the issues involved in the instant case are as follows:

a) Whether or not, under the facts obtaining in the case at bar, accused- appellant, Pablo Molero was placed under double jeopardy; and

b) Whether or not the accused-appellant committed the crime of rape.

The double jeopardy issue stems from the following antecedent facts:

The original complaint of Pacita Molero, dated March 22, 1977, charged her father with the crime of rape allegedly committed "on or about the 13th day f February, 1976." Except for the date which is "on or about the 5th day of February, 1976" in the March 30, 1978 complaint, the facts alleged in the two complaints were exactly the same.

The appellant was originally arraigned under the March 22, 1977 criminal complaint. He pleaded "Not Guilty."

During the trial, Pacita Molero, the complaining witness testified that she was raped by her father on February 5, 1976.

In view of Pacita's testimony, the assistant provincial fiscal filed a motion for leave to amend the complaint.

The motion was granted. However, upon a motion for reconsideration filed by the appellant, the trial court issued an Order the dispositive portion of which reads:

WHEREFORE, the motion for reconsideration filed by the accused dated February 22, 1978 in relation to the Reply to Opposition to Motion for Reconsideration dated March 6, 1978 is hereby granted and the Order of this Court dated February 17, 1978 admitting the amended criminal complaint dated February 2, 1978 is hereby set aside, and the said amended criminal complaint is hereby denied admission. Accordingly, this case is hereby dismissed with costs de oficio, but the accused shall not be discharged as there appears a good cause to detain him in custody to answer for the proper offense pursuant to Sec. 12, Rule 119 of the Rules of Court. the Provincial Fiscal and/or the prosecuting fiscal is hereby ordered to cause the filing of a new complaint and/or information charging the accused of the proper offense of rape committed on or before February 5, 1976 within thirty (30) days from receipt of this Order. (People v. de la Cruz, 59 Phil. 529, cited by Padilla, Criminal Procedure, 1971 ed., p. 763.)

Accordingly, the corrected criminal complaint dated March 30, 1978 was filed.

The appellant filed a motion to quash the criminal complaint on the ground that the appellant had been previously in jeopardy of being convicted of the offense charged citing Section 1(h) Rule 112 of the Revised Rules of Court. The motion was denied. Arraignment followed. The appellant pleaded "Not Guilty." Thereafter, hearings were conducted resulting in the conviction of the appellant.

The appellant now contends that he was placed in double jeopardy when the instant case was filed and he was brought to trial to answer for the crime of rape allegedly committed on February 5, 1976. He argues that the dismissal of Criminal Case No. 2148 on ground of variance between allegation and proof amounted to his acquittal, citing People v. Opemia (98 Phil. 698). He points to the fact that the criminal complaint alleged that he committed the crime of rape on February 13, 1976 and yet the prosecution's evidence shows that the alleged crime was committed on February 5, 1976.

Section 22, Article IV of the 1973 Constitution states that no person shag be put twice in j jeopardy of punishment for the same offense." Section 9, Rule 117 of the Revised Rules of Court, now substantially reproduced as Section 7, Rule 117 in the 1985 Rules on Criminal Procedure, lays down the necessary requisites in order that defense of double jeopardy may prosper, to wit:

Former conviction or acquittal double jeopardy. -When defendant shall have been convicted or acquitted, or the case against him dismissed or otherwise terminated without the express consent of the defendant by a court of competent jurisdiction, upon a valid complaint or information or other formal charge sufficient in form and substance to sustain a conviction and after the defendant had pleaded to the charge, the conviction or acquittal of the defendant or the dismissal of the case shall be a bar to another prosecution for the offense charged, or for any attempt to commit the same or frustration thereof, or for any offense which necessarily includes or is necessarily included in the offense charged in the former complaint or information.

Dismissal of the first case contemplated by this rule presupposes a definite or unconditional dismissal which terminates the case. (Jaca v. Blanco, 86 Phil. 452; People v. Manlapas, 5 SCRA 883; Republic v. Agoncillo, 40 SCRA 579; People v. Hon. Surtida, 43 SCRA 29; People v. Mogol, 131 SCRA 296). And "for dismissal to be a bar under the jeopardy clause of the Constitution, it must have the effect of acquittal." (People v. Agoncillo, supra)

It is quite clear that the order of the trial court dismissing the Criminal Case No. 2148 was without prejudice to the filing of a new complaint and/or information charging the appellant with the proper offense. The case was not terminated because the dispositive portion of the order expressly directed the Provincial Fiscal and/or the prosecuting fiscal to file a new complaint and/or information charging the accused with the proper offense of rape committed on or before February 5, 1976. The case was dismissed for no other reason except to correct the date of the crime from "on or about the 13th day of February" to "on or about the 5th day of February." Hence, the provisional dismissal of Criminal Case No. 2148 could not have barred the prosecution of the case against the appellant.

Contrary to the claim of the appellant, the dismissal of Criminal Case No. 2148 did not amount to his acquittal.

There was no need for the trial court to have used such a cumbersome procedure. What the trial court should have done was simply to deny the motion for reconsideration of the order granting the prosecution's motion for leave to amend the complaint as to the date of the commission of the crime from February 13, 1976 to February 5, 1976. There was no need to dismiss the case without prejudice to the filing of a new complaint. Section 12, Rule 119, Revised Rules of Court applies when there is a mistake in charging the proper offense but not when an honest error of a few days is sought to be corrected and the change does not affect the rights of the accused. The prosecution in Criminal Case No. 2148 had already moved for the amendment of the date of the commission of the crime. The dismissal of the case pursuant to Section 12, Rule 119 of the Revised Rules of Court was made only for that precise purpose.

After arraignment and where the appellant has pleaded "not guilty," it is still proper to amend the date of the commission of the crime? The applicable rules are Sections 10 and 13, Rule 110 of the Revised Rules of Court. These rules provide:

Time of the commission of the offense.-It is not necessary to state in the complaint or information the precise time at which the offense was committed except when time is a material ingredient of the offense, but the act may be alleged to have been committed at any time as near to the actual date at which the offense was committee as the information or complaint will permit.

xxx xxx xxx

Amendment. The information or complaint may be amended, in substance or form, without leave of court, at any time before the defendant pleads; and thereafter and during the trial as to all matters of form, by leave and at the discretion of the court, when the same can be done without prejudice to the rights of the defendant.

Applying the rules, the amendment sought by the prosecution should have been granted.

The precise time of the commission of the crime is not an essential element of the offense of rape. The amendment of the complaint changing the date of the commission of the crime of rape from February 13, 1976 to February 5, 1976, a difference of eight (8) days was only a matter of form under the facts of this case and did not prejudice the rights of the appellant. This Court has ruled:

In the case of People v. Rivera (1970, 33 SCRA 746), We ruled that the amendment of the information as to the date of the commission of the offense from March 2, 1964 to March 2, 1965, a difference of one (1) year or twelve (I 2) months, was merely a matter of form and does not prejudice the rights of the accused, reiterating the ruling in the case of U.S. v. Ramos, (1912, 23 Phil. 300) where the Fiscal was permitted to amend the date of the commission of the offense from June 16, 1910 to June, 1911.

The phrase 'on or about' employed in the information does not require the prosecution 'to prove any precise date but may prove any date which is not so remote as to surprise and prejudice the defendant. In case of surprise, the Court may allow an amendment of the information as to time and an adjournment to the accused, if necessary, to meet the amendment' (U.S. v. Dichao, 27 Phil. 420, 423 [1914]).

In the case of People v. Reyes, (supra) on which the respondent judge relies, the change sought was from 1964 to 1969, a difference of five (5) years, which gap of five years 'is so great as to defy approximation in the commission of one and the same offense.'

This is not so in the case at bar where the difference is only, as aforestated, two months and five days, which disparity allows approximation as to the date of the commission of the offense of grave coercion." (People v. Borromeo, 123 SCRA 253).

The appellant's reliance on the case of People v. Opemia supra, is not well- taken. The amendment proposed in that case was the changing of the date of the commission of the crime from June 18, 1952 to July, 1947, or a difference of five years. We disallowed the amendment and adopted the lower court's ruling that "the amendment that would change the date of the commission of the offense from 1947 to 1952 is certainly not a matter of form.... It is apparent that the proposed amendment concerns with material facts constituting the offense, and consequently, it would be prejudicial to the constitutional rights of the defendants."

The dismissal of Criminal Case No. 2148 did not amount to the appellant's acquittal. In effect, the order of dismissal does not constitute a proper basis for a claim of double jeopardy: (See People v. Bocar, 138 SCRA 166)

The constitutional mandate against putting a person twice in jeopardy of punishment for the same offense is to protect the accused from going through a trial a second time. But, since the first proceedings has not yet been terminated, there is no second proceeding to speak of, and, therefore, no double jeopardy (Flores, Jr. v. Enrile, 115 SCRA 236).

Under the second issue, the appellant insists that the evidence failed to establish the presence of force and intimidation in the commission of the sexual act. He mentions Pacita's testimony that she had a series of sexual intercourses with the appellant since she was thirteen years old and yet did not report the incident to her mother. He argues that if a crime was committed by him at all, it was one of qualified seduction.

The appellant's arguments deserve no merit. Pacita's narration of the incident clearly shows that the appellant employed force and intimidation against her, to wit:

FISCAL:

Q Now,on what part of the river did this incident happen??

A At Balogo while we were walking on the edge of the river.

Q You mean, you were following the river?

A Yes, I was ahead.

Q Now, while you were ahead, there was that incident that happened. What was that incident?

A Because he made me go ahead and suddenly he wrestled me.

COURT:

Q Is that the correct translation?

FISCAL:

No, Your Honor. She was hugged from behind.

COURT:

'I was ahead and suddenly he hugged me from behind.'

That is the correct translation.

FISCAL:

Now, when you were hugged by your father suddenly from behind, what happened?

A I fell down.

Q On the very place where you were then hugged by your father?

A Yes.

Q When you fell to the ground, what was your position?

A My left hand was placed in my back because he held my left hand.

Q When did your father hold your left hand placing it at your back?

COURT:

After you fell or before you fell?

A I had already my hand at my back when I fell down because he immediately embraced me but then I tried to free myself. After which, I fell down.

FISCAL:

When your father was hugging you and you told this Court that you struggled to free yourself and you also told the Court that you fell to the ground, when you fell to the ground, did you fall to the ground together with your father or you were the only one who fell to the ground?

A He also fell down following me because he was holding my hand.

Q And your father at that time was holding which of your hand or arm?

A Left.

Q And when you were already on the ground, win you please tell the Court what was your position?

A I was lying on my back.

Q And how about your left arm, which you said was being held by your father while you were already lying flat on the ground?

A He pulled up my dress and put off my panties." (TSN, November 20, 1978, pp. 8-10)

xxx xxx xxx

FISCAL:

According to you, you fell to the ground followed by your father and your father was still holding your left arm which was placed at your back. While you were already flat on the ground, was your father still holding your left arm at the back?

A He was still holding my left arm and then when we fell down he knelt on my other arm.

Q And you are referring to your right hand?

A Yes.

Q When your father, the accused therein, was doing that, where was he in relation to you?

COURT:

What was the position of your father when he was kneeling on your right arm and holding your left arm on the back?

A He was on a kneeling but bending position.

FISCAL:

Was he directly on top of you or he was on either side of your body?

A On my side.

Q Which side of your body was your father when he was kneeling or bending?

A My right.

Q Then, while your father was doing that, what did he do to you?

A He was removing his buttons and he took off my panties.

Q All right, now, how about your dress, what kind of dress were you wearing at that time?

A I was wearing a thick clothing because I was sure that I will be wet and I was also wearing a short pants.

COURT:

What is this thick clothes you were wearing? You mean, dress, pants or blouse?

A What I mean is that, the dress I was wearing was not like this one I am wearing now but it was for a daily use.

Q It is a one-piece dress?

A Yes.

Q And you were wearing also short pants, according to you?

A Yes.

Q And you were wearing panties under the short pants?

A Yes.

ATTY. REYES:

Your Honor please, may we add for the records that she refers to a dress made of cotton or silk but relatively of light material.

COURT:

Make that of record.

COURT:

Go ahead, Fiscal.

FISCAL:

All right, now, according to you, your father, the accused therein, removed your panty. Now, which was removed first, your panty or the short pant you were wearing because according to you, you were wearing short pant?

COURT:

How can you remove the panty first when you are wearing the short pant? Well, witness may answer the question.

A Both were removed at the same time.

FISCAL:

And which took first, the simultaneous removal of your shorts and panty or the unbottoning of the pants of your father?

A He took off my panty and shorts first.

COURT:

How was he able to remove your panty and shorts, were you not struggling to free yourself?

A I was not able to struggle because he unsheathe a bolo.

Q What did he do with the bolo

A That if I continue to struggle, he would kill me.

Q When he was holding that bolo, with what hand was he holding that?

A Right.

Q How about his left hand, what was it doing at that time?

A His left hand was also holding my other hand and so when he unsheathe his bolo, I did not continue to struggle because I know he would kill me.

FISCAL:

And which took place first, the simultaneous removal of your shorts and panty or the unsheathing of the bolo by your father?

A The simultaneous taking of the panty and short pant took place first because I kept on struggling so he unsheathe his bolo.

COURT:

Actually, the Court gets it from you that he was able to remove your panty and short pant before he unsheathe his bolo?

A Yes, after he took off my panty and short pant that was the time he threatened me.

Q He was able to remove your panty and short pant completely out before he threatened you with the use of a bolo?

A Yes.

COURT:

Go ahead.

FISCAL:

Now, after your panty and short pant were already removed and according to you, your father unsheathe his bolo and threatened you. When did your father remove or unbutton his pants, while he was still holding that bolo?

A He put down the bolo on his side and after which, he unbuttoned his pants.

Q At that time, what was the kind of pants your father was wearing?

A He was only wearing an improvised short pant and with buttons in front.

Q Was your father actually able to unbutton his improvised short pants?

A Yes.

Q After he was able to unbutton his improvised short pants what did he do?

A He lay down on top of me.

Q And how about your legs at that time, was it already spread out?

A I tried to hold my both thighs together but then he opened them.

Q And your father, according to you, placed himself on top of you while your legs were already spread out?

A When he was able to lie on top of me, I tried to close both legs but then he held them open and he lay on top of me.

Q So that when your father was lying on top of you, your both legs were already spread

A Yes.

Q How about your dress at that time your father was on top of you, what was the position of your dress?

A He rasised it up to my stomach.

Q Now, what happened while he was already on top of you?

A He was doing the push and pull movement of his buttocks.

Q And at that time, did you not struggle to free yourself?

A When he was doing that act, I kicked him but then he again got hold of the bolo placed on his side.

Q Then, what did you do after he got hold of the bolo?

A I cried because he made sexual intercourse with me.

 

Moreover, there is no doubt that the appellant had a moral ascendancy and influence over Pacita such that he could easily intimidate and force her to submit to his lustful desires considering that the appellant was her father and she was only seventeen(17) years old at that time. The complainant is obviously illiterate and unschooled. Her complaint is signed with a thumbmark. These, plus the fact that the appellant at the time of the commission of the crime threatened her with a bolo had practically rendered complainant helpless against the lustful demands of the appellant. (See People v. Alcid, 135 SCRA 280). The records also show that the appellant was a fierce man, a cruel husband, and a merciless father such that mother and daughter had to cower in secretive fear before reporting the rape to the authorities.

The fact that Pacita did not report the previous incidents involving her and the appellant to her mother has no bearing on the prosecution of the instant case. This case refers to the commission of the crime of rape on February 5, 1976 by the appellant against Pacita which is a distinct and separate crime from whatever crimes the appellant might have committed when he had sexual intercourse with his own daughter Pacita ever since she was thirteen years old. An intimidated person cowed into submitting to a series of repulsive acts may acquire some courage as she grows older and finally state that enough is enough, the depraved malefactor must be punished. The tragedy in this case is that the criminal happens to be her own father.

Indeed, we find no reason to depart from the trial court's finding that the appellant is guilty beyond reasonable doubt of the crime of rape against his own daughter. We agree with the findings of the trial court that:

As against the vivid and clear testimony of Pacita Molero, the accused had nothing to offer except his short testimony denying having committed in any way the crime of Rape against his very own daughter, He denied having brought his daughter to the Siaton River on February 5, 1976 because he insisted that he was already confined in the PC Stockade on February 13, 1975, and that he was already incarcerated in the Provincial Jail since December 5, 1975. However, defense witness Benjamin Alcorcon, Supervising Prison Guard of the Negros Oriental Provincial Jail clearly told the Court that the record of the Provincial Jail shows that the accused was committed to the Provincial Jail only on December 2, 1976 and definitely on February 5, 1976 he was not yet confined in the Provincial Jail. . . . Pressed by the Court if he could have any satisfactory explanation why his daughter would file such a serious charge against him if in truth he had not committed the act, the accused just matter-of-factly said that 'my daughter Pacita and her mother agreed to file this case.' (Tsn-Liberata Balasbas March 10, 1982, page 11 of transcript, page 434 of record).

The defense placed Pacita Molero as its own witness and her testimony as witness for the defense, that her father had sexual intercourse with her on February 5, 1976 when he brought her to the Siaton River, has only served to reinforce her testimony on 'this aspect of the case, when she testified as a witness for the prosecution. Undoubtedly, the accused is bound by the testimony of his own witness.

All told, the Court finds that the guilt of the accused was established beyond reasonable doubt by the clear and convincing testimony of the complainant, Pacita Molero. Although at times during her testimony she got confused as to dates, this is understandable considering that she is illiterate and this did not in any way affect the vivid portrayal of the heinous act committed on her by her father.

WHEREFORE, except for the MODIFICATION that the indemnity of P10,000.00 is increased to TWENTY THOUSAND PESOS (P20,000.00), the decision appealed from is AFFIRMED in all respects.

SO ORDERED.

Feria (Chairman), Fernan, Alampay and Paras, JJ., concur.

The preclusion against appeal by the government from judgments of acquittal applies even though the accused did not raise the question of double jeopardy. 14 Although the accused Danilo F. Serrano, Sr. did not object to the appeal interposed by the prosecution, Judge Domael should have known that granting such appeal would constitute double jeopardy. Fundamental knowledge of the law and jurisprudence must alert him against any misinterpretation or misuse of doctrines by any party in the case before him.

 FIRST DIVISION

 

G.R. No. 135451 September 30, 1999

PEOPLE OF THE PHILIPPINES, plaintiff-appellant,
vs.
DANILO F. SERRANO, SR., accused-appellee.

In re: Judge Pepe P. Domael, Presiding Judge, Branch 37, Regional Trial Court, Naval, Biliran, for disciplinary action for gross ignorance of the law.

R E S O L U T I O N

 

PARDO, J.:

The Court, in the exercise of supervision over judges and court employees, has initiated this action in consequence of the palpably erroneous ruling of Judge Pepe P. Domael of the Regional Trial Court, Naval, Biliran, in Criminal Case No. N-1648, entitled "People of the Philippines vs. Danilo F. Serrano, Sr.", allowing an appeal filed by the prosecution fro a decision of acquittal.1âwphi1.nêt

On August 1, 1993, Maribel D. Visbal filed with the Regional Trial Court, Naval, Biliran, a sworn complaint charging Danilo F. Serrano, Sr., with rape. ¹

At the arraignment on January 14, 1994, accused Serrano pleaded not
guilty. ² Trial ensued.

After due trial, on March 6, 1998, the Regional Trial Court, Branch 16, Naval, Biliran, rendered decision acquitting the accused on the ground that the prosecution failed to prove his guilt beyond reasonable doubt. The decision was promulgated on July 28, 1998. ³

On August 11, 1998, Assistant Public Prosecutor Federico R. Huñamayor filed a notice of appeal to the Supreme Court from the decision acquitting the accused for being "contrary to the facts and the law". ⁴

On August 24, 1998, Judge Pepe P. Domael, presiding judge of Branch 37, Regional Trial Court, Naval, Biliran, issued an order ⁵ giving due course to the appeal filed by the Provincial Prosecutor.

Consequently, Clerk III Rey S. Morillo of Branch 37, Regional Trial Court, Naval, Biliran, forwarded the original record of the case to this

In a resolution dated March 15, 1999, ⁶ we dismissed the appeal for violation of the rule on double jeopardy and required Judge Pepe P. Domael to explain why he should not be dismissed from office for gross ignorance of the law.

On March 29, 1999, Judge Pepe P. Domael submitted an explanation, ⁷ stating that he gave due course to the appeal because the prosecution cited Memorandum Circular No. 3 dated April 1, 1997 of the Department of Justice pertaining to appeals of decisions of acquittal by the trial court.

Judge Domael further admitted that he was "caught off-handed" by the "novel action taken by the prosecution in appealing a decision of acquittal in a criminal case." ⁸ After noting that the accused did not file any opposition to the manifestation of the prosecution, Judge Domael assumed such inaction to be a waiver of any objection to such appeal.

We find the explanation unacceptable.

The Code of Judicial Conduct requires that a magistrate be the embodiment of judicial competence. As a judge, Judge Domael must have the basic rules at the palm of his hands as he is expected to maintain professional competence at all times. ⁹

It is elementary that the rule against double jeopardy proscribes an appeal from a judgment of acquittal on the merits. ¹⁰ A verdict of acquittal is immediately final and a re-examination of the merits of such acquittal, even in an appellate court, will put him a second time in jeopardy for the same
offense. ¹¹

The Constitution itself provides that no person shall be twice put in jeopardy of punishment for the same offense. ¹² Such a constitutional guarantee prohibits an appeal from a judgment of acquittal, and the law does not provide for exceptions other than deprivation of due process or grave abuse of discretion under exceptional circumstances. ¹³

It is true that the Department of Justice in Memorandum Circular No. 3 dated April 1, 1997, enunciated the proposition that acquittals may be appealed as long as a second trial will not be required and will not place the accused in second jeopardy, in the event the appeal succeeds.

However, such rule is not shown to be applicable to the case at bar. To use the Memorandum Circular of the Department of Justice to overthrow a constitutional guarantee deeply ingrained to protect the rights of an accused would require more than just a mere statement that the decision was "contrary to the facts and to the law", as stated by the prosecution in its notice of appeal.

The preclusion against appeal by the government from judgments of acquittal applies even though the accused did not raise the question of double jeopardy. ¹⁴ Although the accused Danilo F. Serrano, Sr. did not object to the appeal interposed by the prosecution, Judge Domael should have known that granting such appeal would constitute double jeopardy. Fundamental knowledge of the law and jurisprudence must alert him against any misinterpretation or misuse of doctrines by any party in the case before him.

It is imperative that judges be studious of and conversant with basic legal principles. ¹⁵ When the law is so elementary, not to be aware of it constitutes ignorance of the law. ¹⁶ In granting the appeal filed by the prosecution despite the acquittal of the accused, respondent judge exhibited ignorance of the law.

Judge Domael's claim that he was led to believe that he had taken a correct course of action ¹⁷ only reinforced the fact that he did not know the fundamental doctrines of the law, and evinced his weakness and his lack of knowledge of the basic precepts of the law.

However, the acts in question were not shown to be tainted with bad faith, fraud, or malice on the part of Judge Pepe P. Domael. Thus, although the error committed constitutes ignorance of the law, such is not so gross as to warrant the dismissal of the judge from service. ¹⁸

IN VIEW WHEREOF, the Court finds Judge Pepe P. Domael, Regional Trial Court, Naval, Biliran, guilty of ignorance of the law and is hereby SUSPENDED from office for two (2) months without pay, to be served during the court's vacation period in April and May, 2000, with WARNING that repetition of the same or similar acts would be dealt with more severely.

The Court further requires Judge Pepe P. Domael to acquiant himself with the basic rules on Criminal Procedure.1âwphi1.nêt

SO ORDERED.

Davide, Jr., C.J., Puno, Kapunan and Ynares-Santiago, JJ., concur.

Footnotes

1 Rollo, p. 4.

2 Original Record, p. 47.

3 Rollo, pp. 28-38.

4 Rollo, p. 39.

5 Rollo, p. 40.

6 Rollo, pp. 41-42.

7 Rollo, pp. 43-45.

8 Comment, Rollo, p. 43.

9 Rule 3.01, Code of Judicial Conduct; Cruz vs. Yaneza, A.M. No. MTJ-99-1175, March 9, 1999.

10 People vs. Court of Appeals, G.R. No. 128986, June 21, 1999; People vs. Ang Cho Kio, 95 Phil. 475 [1954].

11 Central Bank of the Philippines vs. Court of Appeals, 171 SCRA 49 [1989]; People vs. Laggui, 171 SCRA 305 [1989].

12 Sec. 21, Article III, 1987 Constitution of the Philippines.

13 People vs. Gomez, 126 Phil. 640 [1967]; People vs. Bocar, 138 SCRA 166 [1985]; People vs. Navarro, 63 SCRA 264 [1975]; People vs. Court of Appeals, 101 SCRA 450 [1980]; Aquino vs. Sison, 179 SCRA 648 [1989]; Gorion vs. RTC Cebu, 213 SCRA 138 [1992]; Galman vs. Sandiganbayan, 144 SCRA 43 [1986]; People vs. Court of Appeals, supra.

14 People vs. Balisacan, 17 SCRA 1119 [1966], citing People vs. Ferrer, 100 Phil. 124 [1956]; People vs. Bao, 106 Phil. 243 [1959]; People vs. Golez, 108 Phil. 855 [1960].

15 Canon 4, Canons of Judicial Ethics; Bernabe vs. Memoracion, 277 SCRA 1 [1997], citing Ajeno vs. Inserto, 71 SCRA 166 [1976], Ubongen vs. Mayo, 99 SCRA 30 [1980], Lim vs. Domagas, 227 SCRA 258 [1993].

16 Cortes vs. Agcaoili, 294 SCRA 423 [1998], citing Agcaoili vs. Ramos, 229 SCRA 705 [1994].

17 Comment, Rollo, pp. 44-45.

18 Domingo vs. Reyes, A.M. No. MTJ-98-1165, June 21, 1999.