crimpro july8

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1n his order of ! Aebruar' !##", 14the respondent Judge denied the aforesaid motion for reconsideration for havingbeen filed out of time as a cop' of the order of dismissal was received b' (ssistant )rovincial )rosecutor Rutor on 22Becember !##&, and he declared that the motion for reconsideration earlier filed b' the private prosecutor cept with theprior authorit' or approval of the provincial or cit' fiscal or Chief -tate )rosecutor. . . .

The )rovincial )rosecutor4s opinion that the prosecution should present its


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capricious bent that taints the e>ercise of discretion with grave abuse, thereb' rendering the whole act infirmed andvoid.

-ince the )rovincial )rosecutor, to which the respondent Judge had deferred the matter of reinvestigation, had finall'resolved to stand on the information and to present evidence to prove the uilt of the private respondents for thecrime charged, the respondent Judge did not have the option to dismiss the case on the basis of the disapprovedresolution of Rutor. ;is onl' option was to proceed with the arraignment of the accused and, thereafter, conduct a

pre$trial and trial on the merits should the' enter a plea of not guilt'.

1t must be observed that, although the respondent Judge was convinced of Rutor4s recommendation to dismiss thecase on the ground of want of probable cause because of the


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-an Arancisco, (gusan del -ur. ;is application was favorabl' acted upon b' the +and 1nspector, (rmando +uison. 3n%a' !!, !#F6, 3CT o. )$?&F# was issued to him p. !#, Rollo.

@ight ? 'ears later, on June 2F, !#?", the -angguniang *a'an of the %unicipalit' of -an Arancisco passedResolution o. ":, reuesting the -angguniang )anlalawigan of (gusan del -ur to assist it in recovering +ot o.&:#F from (ttorne' )aredes because the land had been designated and reserved as a school site. The -angguniang*a'an reuested the provincial fiscal to file a perjur' charge against (ttorne' )aredes, Jr. p. !5,Rollo. The

resolution was approved b' the -angguniang )anlalawigan p. !6, Rollo. 3n %arch 2?,!#?5, Civil Case o. 5!2, forannulment of (ttorne' )aredes4 title, was filed b' the Republic in the Regional Trial Court, *ranch 6, (gusan del -urp. !F, Rollo.

Buring the pendenc' of Civil Case o. 5!2, Teofilo elacio, former vice$ma'or of -an Arancisco, (gusan del -ur,filed with the Tanodba'an on 3ctober 2?, !#?6, a criminal complaint charging (ttorne' )aredes with having violated-ection &a of the (nti$raft Corrupt )ractices (ct R.(. &:!# because he allegedl' used his office as )rovincial

(ttorne' to influence, persuade, and induce (rmando +uison, +and 1nspector of the Bistrict +and 3ffice in (gusan del-ur, to favorabl' indorse his free patent application. -ection &a of the (nti$raft +aw provides7

-ec. &.Corrupt practices of public officers. H 1n addition to acts or omissions of public officersalread' penali/ed b' e>isting law, the following shall constitute corrupt practices of an' publicofficer and are hereb' declared to be unlawful7

a )ersuading, inducing or influencing another public officer to perform an act constituting aviolation of rules and regulations dul' promulgated b' competent authorit' or an offense inconnection with the official duties of the latter, or allowing himself to be persuaded, induced orinfluenced to commit such violation or offense.

3n Aebruar' 2&, !#?F, the Tanodba'an now 3mbudsman referred the case to Aiscal @rnesto *roco' of *utuan Cit'T*) Case o. ?6$:&&6? for preliminar' investigation.

Aiscal *roco' issued summons to (ttorne' )aredes, Jr. to appear at the preliminar' investigation of the case on(ugust 2#, !#?F. ;owever, the summons were served on ovember !#, !#?F upon the 1) -tation Commander of-an Arancisco, instead of (tt'. )aredes. The summons did not reach (ttorne' )aredes. evertheless, without waitingfor proof of service of the summons on the accused, Aiscal *roco' proceeded to conduct the preliminar' e>aminationof the complainant and his witnesses. 3n (ugust 2#, !#??, the fiscal issued a resolution finding aprima faciecase ofviolation of -ection &a of R.(. &:!# committed b' the accused. The Aiscal4s resolution was approved b'

Tanodba'an )rosecutor Josephine Aernande/ on June 26, !#?# p. 22, Rollo.

(ttorne' )aredes filed a motion for reconsideration of the Tanodba'an4s resolution. ;e assailed the validit' of thepreliminar' investigation that was conducted b' Aiscal *roco' without notice to him pp. 2&$25, Rollo. ;is motion forreconsideration was denied.

1n the local elections on Januar' !?, !#??, (ttorne' )aredes was elected governor of (gusan del -ur.

3n %a' 2:, !#??, the Regional Trial Court of (gusan del -ur rendered a decision in Civil Case o. 5!2, annullingovernor )aredes4 Aree )atent o. I$? !25& and his 3CT o. )$?&F# and restoring the land


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investigation, but also the information prepared b' the Tanodba'an, and the warrant of arrest issued b' the-andiganba'an p. 5", Rollo. The -olicitor eneral agreed with the petitioner4s contention that the ten 'earprescriptive period of the offense under -ection !! of R.(. &:!#, assuming it was committed on Januar' 2!, !#F6,e>pired on Januar' 2!, !#?6. (lthough the prescriptive period was increased to fifteen !5 'ears under -ection ",*.). *lg. !#5 of %arch !6, !#?2, the -olicitor eneral opined that the new law ma' not be applied retroactivel' to)aredes.

3n the other hand, the 3mbudsman argued that the -andiganba'an was improperl' made respondent in this casebecause it does not have custod' of overnor )aredesG that the lack of preliminar' investigation did not affect thevalidit' of the information nor the jurisdiction of the -andiganba'anG and, that the crime has not 'et prescribedbecause the period of prescription commences to run not on the da' the crime was committed but on the da' it wasdiscovered b' the offended part', the authorities, or their agents (rt. #!, Revised )enal Code.

(t the hearing of the petition of -eptember 2F, !#?#, the Court directed the petitioner to implead the Tanodba'an,through the -pecial )rosecutor, as well as the 3mbudsman, as respondents. The Clerk of Court was instructed tofurnish them with copies of the petition and to reuire them to answer within ten !: da's. The hearing of this casewas reset on 3ctober !?, !#?# at #7&: o4clock in the morning and provisional libert' was granted overnor Ceferino)aredes, Jr. on his own recogni/ance pending the determination of the petition.

3n 3ctober 6, !#?#, the 3ffice of the -pecial )rosecutor filed its comment on the petition for habeas corpus. The-pecial )rosecutor argued that since )aredes was charged in the -andiganba'an for violation of Republic (ct &:!#,

and as the -andiganba'an has jurisdiction over that offense, it is authori/ed to issue a warrant for his arrest and awrit of habeas corpusma' not issue to free him from the custod' of the law.

(fter careful deliberation over the petition and the comments thereon of the -olicitor eneral, the -pecial )rosecutorand the 3mbudsmanTanodba'an, the Court finds insufficient merit in the petition. The settled rule is that the writof habeas corpuswill not issue where the person alleged to be restrained of his libert' is in custod' of an officerunder a process issued b' the court which has jurisdiction to do so +una vs. )la/a, 26 -CR( &!:G Celeste vs.)eople, &! -CR( !G Canar' vs. Birector of )risons, &6 -CR( G Kentura vs. )eople, +$"65F6, ovember 6,!#F?.

The petitioner alleges that the information against overnor )aredes is invalid because the preliminar' investigationwas invalid and the offense charged has alread' prescribed. Those circumstances do not constitute valid grounds forthe issuance of a writ of habeas corpus. The absence of a preliminar' investigation does not affect the court4s

jurisdiction over the case nor impair the validit' of the information or otherwise render it defective )eople vs.

Casiano, +$!5&:#, Aebruar' !6, !#6!G )eople vs. Aigueroa, +$2"2F&, (pril &:, !#6#. The remed' of the accused insuch a case is to call the attention of the court to the lack of a preliminar' investigation and demand, as a matter ofright, that one be conducted. The court, instead of dismissing the information, should merel' suspend the trial andorder the fiscal to conduct a preliminar' investigation. Thus did we rule in Ilagan vs.nrile, ! -CR( &"#.

1f the detained attorne's uestion their detention because of improper arrest, or thatno preliminar!investigation has been conducted" the remed! is not a petition for a Writ of #abeas Corpus but aMotion before the trial court to $uash the Warrant of Arrest" and%or the Information on grounds

provided b! the Rules" or to ask for an investigation % reinvestigation of the case. #abeascorpuswould not lie after the 0arrant of commitment was issued b' the Court on the basis of the1nformation filed against the accused. -o it is e>plicitl' provided for b' -ection !", Rule !:2 of theRules of Court. . . . @mphasis supplied.

1lagan was a reiteration of this Court4s ruling in eople vs.Casiano, ! -CR( "F? !#6! that7

The absence of a preliminar' investigation does not affect the court4s jurisdiction over the case. ordoes it impair the validit' of the information or otherwise render it defective. 1f there was nopreliminar' investigation and the defendant, before entering his plea, calls the attention of the courtto the absence of a preliminar' investigation, the court, instead of dismissing the information,should conduct such investigation, order the fiscal to conduct it or remand the case to the inferiorcourt so that the preliminar' investigation ma' be conducted.

The same rule was reiterated in the decision of this court in 'oromal vs.(andiganba!an" ).R.*o.+,.+"(eptember /" 01+1.


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3n ovember 2&, !##:, the )C indorsed the records of the case, entitled tendible period of five 5 da's from receipt hereofG otherwise, failure on his part to compl' withthis 3rder will compel this office to resolve this case based on the evidence on record.

+et this case be set for preliminar' investigation on ovember F, !##! at 27:: o4clock in theafternoon.

-3 3RB@R@B.

;ence this petition for certiorariand prohibition. )etitioner claims that the respondent Beput' 3mbudsman committedgrave abuse of discretion amounting to lack or e>cess of jurisdiction in compelling him to submit his counter$affidavitin the absence of a complaint and affidavits of witnesses against him.

0e gave due course to the petition and, after considering the respondents4 comment as their answer, reuired theparties to file memoranda. The' have done that and now we must decide this case.

The uestion for decision is whether the petitioner ma' be compelled to file his counter$affidavit notwithstanding thefact that no sworn complaint or affidavit has been filed against him.

The gist of the petitioner4s contention is that a sworn complaint is a mandator' reuirement for the purpose ofconducting a preliminar' investigation. ;e invokes Rule 11, L " of the Rules of )rocedure of the 3ffice of the3mbudsman which provides7


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0ith the return of the %itsubishi +$&:: to the )C-3, the %unicipalit' of Tigaon, through %a'or +elis, finall' received abrand new *esta =ia (mbulance unit complete with all accessories.

3n Januar' 2, !#?#, Justice architorena wrote the then Chief Justice %arcelo *. Aernan relating to him the wholestor' of the ambulance.

3n Januar' 25, !#?#, Justice architorena also sent Beput' 3mbudsman Jose C. Cola'co a letter$complaint againstpetitioner regarding said ambulance. -aid letter$complaint was referred b' 3mbudsman Conrado %. Kasue/ to theBeput' 3mbudsman for +u/on, %anuel C. Bomingo, for appropriate action. Thereupon, Beput' 3mbudsmanBomingo reuired Justice architorena to submit all relevant records and documents, as well as his affidavit andthose of his witnesses. Aailing in this regard, Justice architorena was reuested anew to compl'. 1n his stead,

(nthon' B. Jamora, the Regional manager of the -pecial )rojects Bepartment of the )C-3 and %a'or +elis ofTigaon, Camarines -ur, submitted their respective affidavits.

3n 3ctober &, !##:, Beput' 3mbudsman Bomingo issued an order reuiring petitioner to submit his counter$affidavit, affidavits of his witnesses and other controverting evidence. This order was captioned as Case o. 3%*$!$?#$:!6? for


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C3TR(RE T3 +(0.< 2

3n (pril !2, !##!, a warrant of arrest was issued against petitioner. 3n (pril !?, !##!, he was allowed to deposit thesum of )!5,:::.:: in court to be considered as bail bond and the warrant of arrest was recalled.

3n %a' 2, !##!, petitioner filed a motion to uash on the ground that respondent -andiganba'an has no jurisdictionover his person because the information was filed without probable cause since there is absolutel' no proof adducedin the preliminar' investigation of an' of the elements of the crime defined in -ection &e of Republic (ct o. &:!#.3n June 2F, !##!, respondent court denied the said motion to uash holding that the factual and legal issues andoruestions raised are evidentiar' in nature and are matters of defense, the validit' of which can be best passed uponafter a full$blown trial on the merits. 3n -eptember 5, !##!, respondent court denied petitioner4s motion forreconsideration of the said resolution and set the arraignment of petitioner on 3ctober 2!, !##! at ?7&: a.m.

3n 3ctober !2, !##!, petitioner filed the present petition and b' reason of such filing, respondent court ordered thatthe arraignment be held in abe'ance.

)etitioner enumerates the following as his reasons for filing the petition7


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1n a resolution promulgated on ovember 22, !##:, respondent -andiganba'an denied petitioner4s motion andsupplemental motion to uash. )etitioner4s motion for reconsideration was likewise denied in a resolution dated June2:, !##!.

Conseuent thereto, petitioner is now before us contending that respondent court committed a grave abuse ofdiscretion in den'ing his aforestated motions despite the timel' objection to the lack of a certification in theinformation that the complainant and his witnesses had been personall' e>amined b' the investigating officer, and in

spite of the inordinate dela' in the filing of the information in violation of petitioner4s constitutional rights to dueprocess and speed' trial.

The petition is devoid of merit and the e>traordinar' writs sought b' petitioner cannot justifiabl' issue.

)etitioner initiall' avers that the information is defective because it does not contain a certification b' the investigatingprosecutor that the latter personall' e>amined the complainant and his witnesses, in contravention of the reuirementunder -ection ", Rule !!2 of the Rules of Court which provides7


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unassailable fact remains that the latter4s communication to the -ecretar' of Justice primaril' and justifiedl' sought aclarification and gave a reminder of the directive of this Court which had not then been complied with.

)etitioner insistentl' harps on his main thesis that he was denied his constitutional right to the speed' disposition ofhis case. ;e admits, however, that dela's per se are understandabl' attendant to all prosecutions and areconstitutionall' permissible, !6 with the monition that the attendant dela' must not be oppressive. !F 0ithal, it mustnot be lost sight of that the concept of speed' disposition of cases is a relative term and must necessaril' be a

fle>ible concept. !? ;ence, the doctrinal rule is that in the determination of whether or not that right has beenviolated, the factors that ma' be considered and balanced are the length of dela', the reasons for such dela', theassertion or failure to assert such right b' the accused, and the prejudice caused b' the dela'. !#

0hile, regrettabl', the prosecuting officers appear to have been enmeshed in bureaucratic ennui andmiscommunications in pursuing the prosecution of this case, we are not oblivious of the confusion and handicapsunder which the' had to operate and with which the' had to contend under a marital law regime during the parlousperiod material to this case. 0e take judicial cogni/ance of the freuent amendments of procedural laws b'presidential decrees, the structural reorgani/ations in e>isting prosecutorial agencies and the creation of new ones b'e>ecutive fiat, 2: resulting in changes of personnel, preliminar' jurisdiction, functions and powers of prosecutingagencies.

)etitioner was definitel' not unaware of the projected criminal prosecution posed against him b' the indication of thisCourt as a complementar' sanction in its resolution of his administrative case. ;e appears, however, to have been

insensitive to the implications and contingencies thereof b' not taking an' step whatsoever to accelerate thedisposition of the matter, which inaction conduces to the perception that the supervening dela' seems to have beenwithout his objection hence impliedl' with his acuiescence.

0e recogni/e the concern often invoked that undue dela' in the disposition of cases ma' impair the abilit' of theaccused to defend himself, 2! the usual advertence being to the possible loss or unavailabilit' of evidence for theaccused. 0e do not apprehend that such a difficult' would arise here. The records of this Court in the administrativecase earlier discussed refer to the same offense charged in the present criminal case, with identical facts andevidence being involved, aside from the significant consideration that the determinative evidence therein presentedand which would necessaril' be submitted in the prospective proceedings before respondent court are principall'documentar' in nature.

Conseuentl', whatever apprehension petitioner ma' have over the availabilit' of such documents for his defense isinevitabl' shared in eual measure b' the prosecution for building its case against him. This case, parentheticall', is

illustrative of the situation that what is beneficial speed or dela' for one side could be harmful speed or dela' for theother, and vice$versa. (ccordingl', we are not convinced at this juncture that petitioner has been or shall bedisadvantaged b' the dela' complained of or that such dela' shall prove oppressive to him. The just albeit belatedprosecution of a criminal offense b' the -tate, which was enjoined b' this ver' Court, should not be forestalled eitherb' conjectural supplications of prejudice or b' dubious invocations of constitutional rights.

0;@R@A3R@, there being no showing that the impugned resolutions of respondent -andiganba'an are tainted b'grave abuse of discretion or jurisdictional defect, the instant petition is B1-%1--@B for lack of merit.

-3 3RB@R@B.

G.R. No. 111399 No;ember 14, 1994

O/ON PECHO, petitioner, vs. SAN/IGAN*AAN "&% PEOPLE OF THE PHILIPPINES, respondents.

/AI/E, !R., J.:

1s the attempted or frustrated stage of the offense defined in -ection &e of R.(. o. &:!#, 1as amended, otherwiseknown as the (nti$raft and Corrupt )ractices (ct, punishableO 1f it is not, ma' an accused be, nevertheless,convicted for an offense penali/ed b' the Revised )enal Code which is included in that of the former as chargedO

These are the core issues in this case. The first was resolved in the affirmative b' the -andiganba'an. The petitionerand the 3ffice of the -olicitor eneral disagree. The second is an outcrop of the first.


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0e agree with the respondent -andiganba'an and the 3ffice of the -olicitor eneral that, indeed, the proceduralissue raised is without merit. Airstl', the certification of the investigating )rosecutor in the information is sufficient. ;isfailure to state therein that the accused was informed of the complaint and of the evidence submitted against him andthat he was given an opportunit' to submit controverting evidence, which the petitioner claims is fatal because it ismandatoril' reuired b' -ections & and ", Rule !!2 of the Rules of Court, is untenable. 0hen the )rosecutor statedunder oath that,inter alia,


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irrigation pumps as declared in the import entr' and revenue declaration @>h. ($6 filed with the*ureau of Customs, more particularl' as follows7

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3n %arch &:, !#?#, a random computation was made b' Customs (ppraiser%amerto Aernande/ based on the information provided b' the +egal Bivision andhe found out that a discrepanc' e>ists in the total amount of ta>es euivalent to)!,62F,&2!.:: 20@>h. @. Conseuentl', a hold order and also a warrant ofsei/ure and detention were issued b' the Bistrict Collector of Customs coveringsaid goods.21

The evidence for the prosecution, as summari/ed in the challenged decision 22and in the %anifestation of the 3fficeof the -olicitor eneral, 23established be'ond doubt how the petitioner and his co$accused, Jose Catre, carried outtheir plan to defraud the overnment.

The petitioner and Catre are from -urigao del orte. 3n !5 %arch !#?#, Catre and the petitioner, then a Customsuard of the *ureau of Customs assigned at the %iscellaneous *onded 0arehouse Bivision, -outh ;arbor, %anila,went to the office of Constantino Calica, a certified public accountant and a customs broker, at %agallanes -treet,1ntramuros, %anila. The' introduced themselves to Calica as the dul' authori/ed representatives of @versunCommercial Trading, and then engaged him, for an amount eual to fift' percent 5:P of the authori/ed brokeragefee, to prepare and file with the *ureau of Customs the necessar' 1mport @ntr' and 1nternal Revenue Beclarationcovering @versun4s shipment. The petitioner and Catre submitted to Calica the packing list @>hibit aminer4s roup, of the *ureau of Customs for further processing.

Two da's after the documents were submitted to the @ntr' )rocessing Bivision, Catre called up Calica and reuestedCalica to assist him and the petitioner when the cargo will be submitted for actual e>amination. Calica agreed.

3n 2! %arch !#?# Bennis met again with Catre for the processing of the e>amination reuest. (fter filing the reuestwith the arrastre operator, Bennis checked the respective serial numbers of each container. Bennis did not joinan'more in the actual e>amination of the containers.

3n 2F %arch !#?#, *alta/ar %orales, Chief 1ntelligence 3fficer of the *ureau of Customs, addressed a formalreuest @>hibit


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of agricultural disc blades and irrigation pumps as declared in the import entr' and revenue declaration. The enginesare more particularl' described as follows7

!. Contr. o. @=+D$26FB 2:4 H containing 6: pcs.units BR5:( diesel engine

2. Contr. o. 1T+D$6:F?!FF 2:4 H containing 6: pcs.units "BR5:( diesel engine

&. Contr. o. DAC3$F6#25 2:4 H containing 6: pcs.units "BR5:( diesel engine

". Contr. o. =+TD$!:!:#?? 2:4 H containing 6: pcs.units "BR5:( diesel engine

5. Contr. o. =ITD$2:2F&6# 2:4 H containing 6: pcs.units "BR5:( diesel engine

The computation of the ta>es due thereon made on &: %arch !#?# b' %amerto Aernande/, Customs (ppraiser,showed a discrepanc' in the total amount of )!,:2F,&2!.:: @>hibit istent firm andthat the ta> account number used b' @versun in making the 1mport @ntr' Beclaration was non$e>istent.

Buring their investigation, Tugda' and Tamparong issued two subpoenas to the petitioner to appear before them. ;edid not appear to e>plain his side. (s a result, Tugda' and Tamparong prepared an 1nvestigation Report @>hibit cusablenegligence. 24

are present in this case. %ore specificall', it said7

(ccused 3don )echo acted in bad faith from the ver' start when he conspired with his co$accused%r. Jose Catre in misleading the government on the actual contents of the shipments belonging to@versun Commercial Trading and thereb' evading the pa'ment of correct ta>es due to thegovernment.


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operating with furtive design or some motive of self$interest or ill will for ulterior purposes (irArance vs. Carrascoso, !? -CR( !55. @vident bad faith connotes a manifest deliberate intent onthe part of accused to do wrong or cause damage.

(s Customs uard, the accused is supposed to safeguard the interest of the governmentparticularl' the *ureau of Customs to which he is emplo'ed. onetheless, he allowed himself to beused in this illegal scheme to give unwarranted benefits or advantage to the importer at the

e>pense of the government. The accused4s participation is positivel' established b' the testimoniesof %essrs. Constantino Calica and his son Bennis Calica. These two represent the Calica*rokerage contracted b' the two accused %r. )echo and %r. Catre to prepare and file with the*ureau of Customs the reuired import entr' declaration. The two accused went straight to %r.Calica4s office and introduced themselves as the dul' authori/ed representatives of @versunCommercial Trading which is based at -urigao del orte. The contract of services entered into b'the two accused and %r. Constantino Calica ma' be said to be peculiar from the usual contract ofthis kind. 1t is limited onl' to the preparation of the import entr' declaration, the computation ofta>es due to the *ureau of Customs and filing the same with the latter. 1t was the two accused whohanded%r. Calica the shipping documents necessar' for the preparation of an import entr' declarationsuch as the packing list @>h. ($&, the commercial invoice @>h. ($", bill of lading @>h. ($& andthe importer4s sworn statement. These documents declare the shipment as five 5 containers of-TC agricultural disc blades and irrigation water pumps more particularl' described as follows7

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*ased on the information given b' the two accused, the ta>es and duties was computed at)5&,!6".::.

(s the customs representative of Calica *rokerage, Bennis Calica is in$charge with the filing andposting of documents with the *ureau of Customs. 3n %arch !6, !#?#, his father instructed him tofile the import entr' declaration covering the importations of @versun Commercial Trading with the*ureau of Customs. ;e dropped first at the head office of = +ine -hipping Compan' in %akati toprocess the deliver' permits. 0hile he was there, two men approached him and introducedthemselves as %r. )echo and %r. Catre, the clients of his father. The two accused invited him to gowith them and the' boarded %r. )echo4s car and the three of them proceeded to the %anila1nternational Container )ort. The two accused accompanied him when the import entr' declaration

@>h. ($6 was filed with the @ntr' )rocessing Bivision, *ureau of Customs. The services of theCalica *rokerage were again solicited b' the two accused in the actual e>amination of the goods.-o, on %arch 2!, !#?#, Bennis Calica met again with the two accused for the said purpose.

There is a deliberate intent on the part of the accused to do wrong or cause damage to thegovernment. This ma' be inferred from the actuations of two accused. Their concerted actionsshow that the' cooperated with each other towards the accomplishment of a common feloniouspurpose, in this case, the defraudation of the government through non$pa'ment of the correctamount of ta>es and duties to the latter )eople vs. Catubig, !#5 -CR( 5:5. (ccused )echoassisted his co$accused Catre in his official capacit' as a customs guard in processing thedocuments reuired to insure that the goods consigned to @versun Commercial Trading bereleased without dela' and without arousing suspicion from the government authorities. (ccused)echo4s act defeats the ver' objective of the government to upgrade the s'stem of collection withregard to ta>es and duties due to the government. %oreover, this is tantamount to an act ofbetra'al of the confidence reposed in him when he was emplo'ed as Customs uard of the *ureau

of Customs. 25

There is no doubt in our minds that without the earl' discover' of the fraud through the timel' recommendation b' theChief 1ntelligence 3fficer for a !::P e>amination of the shipment and the spot check of the shipment b' Customs-enior (gent Ruperto -antiago, the overnment would have been defrauded in the sum of )!,:2F,&2!.::corresponding to the deficienc' in ta>es. -uch discover' and the immediate issuance of a hold order and a warrant ofsei/ure and detention b' the Bistrict Collector of Customs against the said articles effectivel' prevented theconsummation of the offense. The overnment incurred no undue injur' or damage. (t most then, the violation of-ection &e of R.(. o. &:!# reached onl' the attempted stage because the perpetrators had commenced thecommission of the offense directl' b' overt acts but failed to perform all the acts of e>ecution which would have


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caused to the emplo'ees of the hospital since the' were in fact paid on 2F 3ctober !#?2 theirsalaries for the entire third uarter of !#?2.

1n Fernando vs. (andiganba!an, 3this Court, uoting the ruling inAle6andro, also stated7

There is no evidence whatsoever to show that the acts of the petitioners were done with evidentbad faith or gross negligence. either is there proof that there was undue injur' caused to an'part'. 0ho is the part' injuredO There is nothing in the records to show injur' to an' part', least ofall the government. The urgent repairs were completed. The *ureau of Customs personnel and thepublic dealing with them were benefited but nobod' was injured. *ut most of all, there was noevident partialit'.

o actual injur' or damage having been caused to the overnment due to the timel' !::P e>amination of theshipment and the subseuent issuance of a hold order and a warrant of sei/ure and detention, the petitioner must,perforce, be acuitted of the violation of -ection &e of R.(. o. &:!#. Aortunatel', for the -tate, the offense chargedin the information in Criminal Case o. !"?"" necessaril' includes the comple> crime of estafa under paragraph2a, (rticle &!5, Revised )enal Code through falsification of public documents under (rticle !F!, Revised )enalCode. (rticle &!5 reads7

(rt. &!5. (2indling >estafa?. H (n' person who shall defraud another b' an' of the meansmentioned herein below.

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2. *' means of an' of the following false pretenses or fraudulent acts e>ecuted prior to orsimultaneousl' with the commission of the fraud7

a *' using fictitious name, or falsel' pretending to possess power, influence,ualifications, propert', credit, agenc', business or imaginar' transactions, or b'means of other similar deceits.

The information alleges in no uncertain terms the essential ingredients of estafa under said paragraph 2a, viz., ! false or fraudulent representation of co$accused Jose Catre that he was the dul' authori/edrepresentative of @versun Commercial Trading, the alleged importer of agricultural disc blades and irrigation

water pumps in the container van when, in truth and in fact, said importer is non$e>istent or fictitious with aneuall' spurious Ta> (ccount umber, and that the cargoes imported were not as declared but &:: units ofdiesel engines, which fraudulent acts were done with the use of falsified documents such as import entr'declaration, packing list, commercial invoice and bill of ladingG 2 the false pretenses or fraudulent acts weree>ecuted prior to the commission of the fraudG and & the defraudation of the overnment in the amount of)!,:2F,&2!.:: in ta>es representing the difference between the correct ta>es and duties due and that earliercomputed on the basis of the false declaration. 1n other words some of the essential ingredients of theoffense charged constitute the essential reuisites of estafa through falsification of official documents. 1f dul'proved b' the evidence for the prosecution that satisfies the uantum of proof reuired for conviction, thepetitioner can, under the information be convicted of estafa through falsification of official and commercialdocuments, an offense which is, as stated earlier, included in that which is charged.

-ection ", Rule !2: of the Rules of Court provides7

-ec. ". 7udgment in case of variance bet2een allegation and proof8 H 0hen there is variancebetween the offense charged in the complaint or information, and that proved or established b' theevidence, and the offense as charged is included in or necessaril' includes the offense proved, theaccused shall be convicted of the offense proved included in that which is charged, or of theoffense charged included in that which is proved.

(nal'/ing this provision, this Court stated in s$uerra vs. eople7 3

-tated differentl', an accused ma' be convicted of an offense provided it is included in the charge,or of an offense charged which is included in that proved. -till stated differentl', an accused can be


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convicted of an offense onl' when it is both charged and proved. 1f it is not charged althoughproved, or if it is not proved although charged, the accused cannot be convicted thereof. 1n otherwords, variance between the allegation and proof cannot justif' conviction for either the offensecharged or the offense proved unless either is included in the other.

-ection of Rule !2: states when an offense includes or is included in the other7

-ec. 5. When an offense includes or is included in another. H (n offense charged necessaril'includes that which is proved, when some of the essential elements or ingredients of the former, asthis is alleged in the complaint or information, constitute the latter. (nd an offense charged isnecessaril' included in the offense proved, when the essential ingredients of the former constituteor form a part of those constituting the latter.

1n view of the aforesaid rules, it follows then that7

a. 0hen the offense proved is less serious than, and is necessaril' included in, the offensecharged as when the offense proved is homicide and the offense charged is murder, in whichcase the defendant shall be convicted of the offense proved D.-. vs. %acalintal, 2 )hil.""?G . . ..

b. 0hen the offense proved is more serious than and includes the offense charged as when theoffense proved is serious ph'sical injuries and the offense charged is slight ph'sical injuries, inwhich case the defendant shall be convicted onl' of the offense charged D.-. vs. u/man, ? )hil.2! . . .. 3

(s earlier adverted to, the evidence established b' the prosecution proves be'ond reasonable doubt that the crime ofestafa was onl' at its attempted stage and that it was sought to be consummated through the falsification of thefollowing documents7 the packing list @>hibit


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e>traordinar' personal interest in securing the release of the cargoes for a fictitious importer, then the petitioner andCatre are presumed to be the authors of the falsified documents. ( rule, well$buttressed upon reason, is that in theabsence of satisfactor' e>planation one found in possession of and who used a forged document is the forger andtherefore guilt' of falsification. 411t is, however, essential that the use must be so closel' connected in time with theforging such that the utterer or user ma' be proved to have the capacit' of forging, or such close connection with theforger that it becomes, when so accomplished, probable proof of complicit' in the forger'. 42

1n eople vs. (enda!diego, 43this Court reiterated the rule thus7

The rule is that if a person had in his possession a falsified document and he made use of ituttered it, taking advantage of it and profiting thereb', the presumption is that he is the materialauthor of the falsification. This is especiall' true if the use or uttering of the forged documents wasso closel' connected in time with the forger' that the user or possessor ma' be proven to have thecapacit' of committing the forger', or to have close connection with the forgers, and, therefore, hadcomplicit' in the forger'. D.-. vs. Castillo, 6 )hil. "5&G )eople vs. Be +ara, "5 )hil. F5"G )eople vs.Bomingo, "# )hil. 2?G )eople vs. (studillo, 6: )hil. &&?G )eople vs. %anansala, !:5 )hil. !25&.

1n the absence of a satisfactor' e>planation, one who is found in possession of a forged documentand who used or uttered it is presumed to be the forger (larcon vs. Court of (ppeals, +$2!?"6,%arch &!, !#6F, !# -CR( 6??G )eople vs. Caragao, +$2?25?, Becember 2F, !#6#, &: -CR( ##&.

o e>planation at all having been given b' the petitioner as to wh' he and his co$accused were in possession of andused the falsified official and commercial documents, the' are deemed to be the forgers thereof.

(ccordingl', the petitioner is liable for and can be validl' convicted of the comple> crime of attempted estafa throughfalsification of official and commercial documents under paragraph 2a of (rticle &!5 and (rticle !F! of the Revised)enal Code. )ursuant to (rticle "?, the penalt' for the more serious crime shall be applied in its ma>imum period.

1f the crime of estafa had been consummated, the overnment would have been defrauded in the amount of)!,:2F,&2!.::. ;ence, the applicable penalt' under (rticle &!5 of the Revised )enal Code would have beenprisioncorreccional in its ma>imum period toprision ma!or in its minimum period, with an additional one ! 'ear for ever')!:,:::.:: in e>cess of the first )22,:::.::Gprovided, that the total penalt' should not e>ceed twent' 'ears.

-ince what was established was onl' attempted estafa, then the applicable penalt' would be that which is two

degrees lower than that prescribed b' law for the consummated felon' pursuant to (rticle 5!, in relation to (rticle6!5, of the Revised )enal Code, viz., arresto ma!or in its medium period to arresto ma!or in its ma>imum period.

3n the other hand, the penalt' for falsification under (rticle !F! isprision ma!or and a fine not e>ceeding )5,:::.::.3bviousl' then, this is the more serious crime which shall be imposed upon the petitioner pursuant to (rticle "?.-ince he is entitled to the benefits of the 1ndeterminate -entence +aw, 44he can be sentenced to an indeterminatepenalt' ranging from two 2 'ears, four " months, and one ! da' ofprision correccional medium as minimum toten !: 'ears and one ! da' ofprision ma!or ma>imum as ma>imum and a fine of )2,:::.::. The ma>imum of theduration is in conformit' with (rticle "? which mandates that the penalt' for the more serious crime shall be applied inits ma>imum period.

The foregoing disuisitions clearl' suggest that those in charge of investigating criminal complaints against publicofficials and emplo'ees and of filing the corresponding informations in court must carefull' determine under what lawthe offenders should be prosecuted. The' should note that the offenses enumerated in -ection & of the (nti$raft and

Corrupt )ractices (ct R.(.o. &:!#, as amended are butin addition to acts or omissions of public officers alread! penalized b! e3isting la2.Thus, to attain the ver' purpose of said law and further enhance the constitutional mandate that a public office is apublic trust and all public officers and emplo'ees haust all the available remedies of the -tateagainst the offender. 1t is a cardinal rule that the protection against double jeopard' ma' be invoked onl' for the sameoffense. 4


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0;@R@A3R@, the instant petition is B@1@BG however, the judgment of the -andiganba'an in Criminal Case o.!"?"" is modified, and, as modified, thepetitioner is hereb' declaredguilt' be'ond reasonable doubt of the comple>crime of attempted estafa through falsification of official and commercial documents and, appl'ing the 1ndeterminate-entence +aw, is hereb' sentenced to suffer an imprisonment penalt' ranging from T03 2 E@(R-, A3DR "%3T;-, and 3@ ! B(E ofprision correccional medium as minimum to T@ !: E@(R- and 3@ ! B(Eofprision ma!or ma>imum as ma>imum, with the accessories thereof and to pa' a fine of Two Thousand )esos)2,:::.::.

Costs against the petitioner.

-3 3RB@R@B.

G.R. No. L73425 "r+ , 199

*. !OSE CASTILLO, petitioner, vs. HON. ONOFRE A. ILLAL-, !(%'e, C$r+($t Cr$m$&") Co(rt, t !(%$+$")/$#tr$+t, RENATO ONTES "&% !OSE /E SILA, respondents.

NARASA, J.:

Judges of Regional Trial Courts formerl' Courts of Airst 1nstance no longer have authorit' to conduct preliminar'investigations. That authorit', at one time reposed in them under -ections !&, !" and !6, Rule !!2 of the Rules ofCourt of !#6", 1was removed from them b' the !#?5 Rules on Criminal )rocedure, effective on Januar' !,!#?5,2which deleted all provisions granting that power to said Judges. 0e had occasion to point this out in (alta v8Court of Appeals"!"& -CR( 22?, and to stress as well certain other basic propositions, namel'7 ! that the conductof a preliminar' investigation is ecutive,< 2 that wherever ecutive to them,< and the fact ercised.amination and investigation conducted b' the Courtand considering that the respondent was given a chance to defend himself, let a warrant be issuedfor his apprehension. The respondent is hereb' ordered to post a bond in the amount of )&,:::.::for his provisional release.


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)ursuant to -ection 6, Rule !&5 of the ew Rules of Court, in relation to -ection !&, Rule !!2thereto, the )rovincial Aiscal of Ri/al is hereb' ordered to file the corresponding information againstthe respondent before the court of competent jurisdiction within T0@TE$A3DR 2" hours fromreceipt hereof.

-3 3RB@R@B.

otice of the 3rder was served on the )rovincial Aiscal of Ri/al, herein petitioner, on Jul' 2#, !#F!, but he failed tofile the information reuired within the time appointed, or at an' time thereafter. Conseuentl', on 3ctober !, !#F!, hewas directed b' ;is ;onor to e>plain within ten !: da's isted, 13the Circuit Criminal Court had the same power as a Court of Airst 1nstance toconduct preliminar' investigations of offenses cogni/able b' it. -o we have ruled in two 2 cases7 Collector ofCustoms v8 @illaluz" F! -CR( &56,14and de )uzman v8 @illaluz" !!F -CR( !?2. 15

ow, ;is ;onor was evidentl' of the view that his determination of the e>istence of probable cause, founded on theresults of his own preliminar' investigation, was the last word on the matter, and the )rovincial Aiscal had no optione>cept to draw up and file the information on the basis of said preliminar' investigation. This is wh' respondent Judgegave petitioner Aiscal onl' twent'$four 2" hours tent to courts of first instance was dictated b'


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Capital Region of the authorit' to conduct preliminar' investigations< and plicitl' provide inter aliathat


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then the Kice$)resident of the ational -teel Corporation -C, a government$owned or controlled corporation organi/ed and operating under the )hilippinelaws, and B3R1- T@R@-( ;3, a private individual and then the )resident ofational %arine Corporation %C, a private corporation organi/ed andoperating under our Corporation law, conspiring and confederating with oneanother, did then and there wilfull', unlawfull' and criminall', with evident badfaith and through manifest partialit', cause undue injur' to the ational -teel

Corporation -C, b' entering without legal justification into a negotiatedcontract of affreightment disadvantageous to the -C for the haulage of itsproducts at the rate of )!2#.5:%T, from 1ligan Cit' to %anila, despite their fullknowledge that the rate the' have agreed upon was much higher than thoseoffered b' the +oadstar -hipping Compan', 1nc. +-C1 and )remier -hipping+ines, 1nc. )-+1, in the amounts of )!:#.56 and )!2&.:: per %etric Ton,respectivel', in the public bidding held on June &:, !#??, thereb' givingunwarranted benefits to the ational %arine Corporation, in the total sum of 3ne%illion 3ne ;undred -i>teen Thousand Aift' Two )esos and -event' AiveCentavos )!,!!6,:52.F5, )hilippine Currenc', to the pecuniar' damage andprejudice of the -C in the aforestated sum. The said offense was committed b'Rolando -. arciso in the performance of his official functions as Kice$)residentof the ational -teel Corporation.

C3TR(RE T3 +(0.

(cting on the foregoing information, the -andiganba'an issued the now uestioned warrant of arrest against)etitioners ;o and arciso. )etitioner ;o initiall' uestioned the issuance thereof in an ists to justif' theissuance of the warrant of arrest but also on the basis predominantl' shown b' the facts andevidence appearing in the resolutionmemorandum of responsible investigatorsprosecutors, thenthe recall of the warrant of arrest, or the reconsideration sought for, cannot be granted. %ore so,

when the information, as filed, clearl' shows that it is sufficient in form and substance based on thefacts and evidence adduced b' both parties during preliminar' investigation. To reuire this Courtto have the entire record of the preliminar' investigation to be produced before it, including theevidence submitted b' the complainant and the accused$respondents, would appear to be ane>ercise in futilit'.

Thus, these petitions.


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clusive and personal responsibilit' of the issuing judgeto satisf' himself of the e>istence of probable cause. 1n satisf'ing himself of the e>istence ofprobable cause for the issuance of a warrant of arrest, the judge is not reuired to personall'e>amined the complainant and his witnesses. Aollowing established doctrine and procedure, heshall7 ! personall' evaluate the report and the supporting documents submitted b' the fiscalregarding the e>istence of probable cause and, on the basis thereof, issue a warrant of arrestG or2 if on the basis thereof he finds no probable cause, he ma' disregard the fiscal4s report andreuire the submission of supporting affidavits of witnesses to aid him in arriving at a conclusion asto the e>istence of probable cause. 108emphasis supplied9

0e should stress that the !#?F Constitution reuires the judge to determine probable cause


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(nd clarif'ing the statement in eople vs. 'elgado13H that the aminethe complainant and his witnesses. The )rosecutor can perform the same functions as acommissioner for the taking of the evidence. ;owever, there should be a report andnecessar'documents supporting the Aiscal4s bare certification.All of these should be before the 7udge.

The e>tent of the Judge4s personal e>amination of the report and its anne>es depends on thecircumstances of each case. 0e cannot determine beforehand how cursor' or e>haustive theJudge4s e>amination should be. The Judge has to e>ercise sound discretion for, after all, thepersonal determination is vested in the Judge b' the Constitution. 1t can be as brief or as detailedas the circumstances of each case reuire. To be sure, the Judge must go be'ond the )rosecutor4scertification and investigation report whenever necessar'. ;e should call for 8the9 complainant and8the9 witnesses themselves to answer the court4s probing uestions when the circumstances of the

case so reuire.

15

8emphasis supplied9

The above rulings in (oliven" Inting and 9im (r. were iterated inAllado vs. 'iokno1where we e>plained again whatprobable cause means. )robable cause for the issuance of a warrant of arrest is the e>istence of such facts andcircumstances that would lead a reasonabl' discreet and prudent person to believe that an offense has beencommitted b' the person sought to be arrested. 1;ence, the judge, before issuing a warrant of arrest,


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9astl!, it is not reuired that the completeor entirerecords of thecase during the preliminar' investigation be submitted to and e>amined b' the judge. 20e do not intend to undul'burden trial courts b' obliging them to e>amine the complete records of ever' case all the time simpl' for the purposeof ordering the arrest of an accused. 0hat is reuired, rather, is that the judge must have sufficientsupportingdocuments such as the complaint, affidavits, counter$affidavits, sworn statements of witnesses or transcripts ofstenographic notes, if an' upon which to make his independent judgment or, at the ver' least, upon which to verif'the findings of the prosecutor as to the e>istence of probable cause. The point is7 he cannot rel' solel' and entirel' on

the prosecutor4s recommendation, as Respondent Court did in this case. (lthough the prosecutor enjo's the legalpresumption of regularit' in the performance of his official duties and functions, which in turn gives his report thepresumption of accurac', the Constitution we repeat, commands the judge topersonall!determine probable cause inthe issuance of warrants of arrest. This Court has consistentl' held that a judge fails in his bounden dut' if he reliesmerel' on the certification or the report of the investigating officer.

True, in Webb vs. 'e 9eon, we found that

crimpro july8

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