Preservation of the integrity and evidentiary value of the seized drugs - G.R. No. 181249

See  -  G.R. No. 181249





"x x x.

Dangerous Drugs Board Regulation No. 3, Series of 1979, as amended by Dangerous Drugs Board Regulation No. 2, Series of 1990 reads:

            Subject: Amendment of Board Regulation No. 7, series of 1974, prescribing the procedure in the custody of seized prohibited and regulated drugs, instruments, apparatuses, and articles specially designed for the use thereof.

            x x x x

            SECTION 1. All prohibited and regulated drugs, instruments, apparatuses and  articles specially designed for the use thereof when unlawfully used or found in the possession of any person not authorized to have control and disposition of the same, or when found secreted or abandoned, shall be seized or confiscated by any national, provincial or local law enforcement agency.  Any apprehending team having initial custody and control of said drugs and[/or] paraphernalia, should immediately after seizure or confiscation, have the same physically inventoried and photographed in the presence of the accused, if there be any, and/or his representative, who shall be required to sign the copies of the inventory and be given a copy thereof. Thereafter the seized drugs and paraphernalia shall be immediately brought to a properly equipped government laboratory for a qualitative and quantitative examination.

            The apprehending team shall: (a) within forty-eight (48) hours from the seizure inform the Dangerous Drugs Board by telegram of said seizure, the nature and quantity thereof, and who has present custody of the same, and (b) submit to the Board a copy of the mission investigation report within fifteen (15) days from completion of the investigation.[45]

The records do not show that the NBI-STF team complied with the aforementioned procedure. Nevertheless, such failure is insufficient ground to acquit appellant.

In People v. Gonzaga,[46] wherein the very same issue was raised, we explained that:

While it appears that the buy-bust team failed to comply strictly with the procedure outlined above, the same does not overturn the presumption of regularity in the performance of their duty.  A violation of the regulation is a matter strictly between the Dangerous Drugs Board and the arresting officers and is totally irrelevant to the prosecution of the criminal case since the commission of the crime of illegal sale of a prohibited drug is considered consummated once the sale or transaction is established and the prosecution thereof is not undermined by the arresting officers’ inability to conform to the regulations of the Dangerous Drugs Board.

 Further, the integrity of the evidence is presumed to be preserved, unless there is a showing of bad faith, ill will, or proof that the evidence has been tampered with.[47]

Moreover, non-compliance with the said regulation is not fatal to the prosecution as it does not render appellant’s arrest illegal or the seized items inadmissible in evidence. What is of utmost importance is the preservation of the integrity and evidentiary value of the seized drugs as the same would be utilized in the determination of the guilt or innocence of herein appellant.[48]

A thorough review of the records of this case shows that despite the NBI-STF’s non-compliance with said regulation, the integrity and evidentiary value of the confiscated drugs was nonetheless preserved.  Evidence shows that the three heat-sealed plastic sachets of shabu, after being confiscated from appellant on the night of May 23, 2001, were duly marked by poseur-buyer Kawada as “REM-1,” “REM-2” and “REM-3” using his own codename.[49] That same night, at the NBI-STF office, Kawada prepared the disposition form with file number DD-010480 indicating the transmittal of the same three heat-sealed sachets of shabu for laboratory examination. The said disposition form was duly noted by NBI-STF Chief Atty. Max Salvador.[50]   The following day, the confiscated drugs including the disposition form Kawada prepared, were delivered and submitted by Agent Raoul Manguerra to the NBI Forensic Chemistry Division at 7:15 in the morning and were duly received by NBI Forensic Chemist Gelacio-Mahilum.[51]  As indicated in her Certification dated May 24, 2001, the three plastic sachets marked “REM-1,” “REM-2,” and “REM-3” were still heat-sealed when she received them.  She also certified that the three sachets have a total weight of 305.4604 grams and gave positive results for methamphetamine hydrochloride or shabu.[52]  When presented during the trial, these specimens were also positively identified by Kawada as the very same sachets which were handed to him by the appellant.[53]

It is also worthy to note that appellant never alleged that the drugs presented during the trial have been tampered with. Neither did appellant challenge the admissibility of the seized items when these were formally offered as evidence. In the course of the trial, the seizedshabu were duly marked, made the subject of examination and cross-examination, and eventually offered as evidence, yet at no instance did the appellant manifest or even hint that there were lapses in the safekeeping of the seized items as to affect their admissibility, integrity and evidentiary value. It was only during her appeal that she raised the issue of non-compliance with the said regulation. Settled is the rule thatobjections to the admissibility of evidence cannot be raised for the first time on appeal; when a party desires the court to reject the evidence offered, he must so state in the form of objection. Without such objection, he cannot raise the question for the first time on appeal.[54]

It should also be noted that appellant failed to present evidence to show that the NBI-STF team was impelled by improper motives to testify against her. She merely gave the bare assertion that she was arrested by the NBI operatives to be used as leverage in pressuring her husband to divulge the whereabouts of alias Boy Life.

x x x."

Court of Appeals did not err in dismissing the petition for certiorari for having been filed late - G.R. No. 147832

See - G.R. No. 147832





"x x x.

The only issue for our determination is whether the filing by the OSG of the petition for certiorari with the Court of Appeals is within the reglementary period.

          Section 4, Rule 65 of the 1997 Rules of Civil Procedure, as amended, reads in part:

         SEC. 4.  When and where petition filed. – The petition (for certiorari) may be filed not later than sixty (60) days from notice of the judgment, order, or resolution.  In case a motion for reconsideration or new trial is timely filed, whether such motion is required or not, the sixty (60) day period shall be counted from notice of the denial of said motion.

            x x x      

          In criminal actions brought before the Court of Appeals or the Supreme Court, the authority to represent the State is solely vested in the OSG.  This is pursuant to Section 35 (1), Chapter 12, Title III, Book III of the Administrative Code of 1987, as amended, providing that the OSG shall represent the Government in the Supreme Court and the Court of Appeals in all criminal proceedings.   In People v. Eduarte,[2]People v. Nano,[3] and People v. Mendoza,[4] we ruled that “only the Solicitor General may bring or defend actions on behalf of the People of the Philippines once such actions are brought before the Court of Appeals or Supreme Court.”

          Under Section 5, Rule 110 of the Revised Rules on Criminal Procedure, as amended, “All criminal actions, either commenced by complaint or by information, shall be prosecuted under the direction and control of a public prosecutor.”  The rule is that when a party is represented by counsel in an action in court, notices of all kinds, including motions, pleadings, and orders must be served on said counsel and notice to him is notice to the client.[5]   The RTC sent a copy of its Order dated November 9, 2000 to the Olongapo City Prosecutor who received it on November 22, 2000.  Perforce, it follows that the running of the 60-day period to file a petition for certiorari must commence from that date, not from January 3, 2001, as claimed by the Solicitor General.

          It appears that the Olongapo City Prosecutor did not act with dispatch in sending the questioned Order to the OSG.  He received it onNovember 22, 2000.  But it was only on January 3, 2001, or after 41 days, when the OSG received the same.  In turn, the latter filed with the Court of Appeals the petition only on March 5, 2001, or after 43 days.  Clearly, a total of 84 days had elapsed from receipt of the challenged Order by the Olongapo City Prosecutor before the Solicitor General filed the petition for certiorari with the Court of Appeals.

          In Yutingco v. Court of Appeals,[6] we explained that the 60-day period was set “to avoid any unreasonable delay that would violate the constitutional rights of parties to a speedy disposition of their cases” and for this reason, “ought to be considered inextendible.”

Thus, we hold that the Court of Appeals did not err in dismissing the petition for certiorari for having been filed late.

x x x."

The private respondent, as private complainant, had legal personality to assail the dismissal of the criminal case against the petitioner on the ground that the order of dismissal was issued with grave abuse of discretion amounting to lack or excess of jurisdiction

See - http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/126210.html


"x x x.

Succinctly put, the issues in the instant case are: first, whether or not Judge Masadao, presiding judge of RTC Branch 9, Malolos, Bulacan, committed grave abuse of discretion in granting the prosecutor’s motion to dismiss the criminal case against petitioner without an independent assessment of the sufficiency or insufficiency of the evidence against the latter; second, whether or not the private respondent, as private complainant, in a criminal case has the legal personality to question the dismissal by the trial judge of the criminal charges against herein petitioner upon the motion filed by the prosecutor; and third, whether or not the dismissal of the charges against the petitioner is warranted by the evidence at hand.

First. Judge Masadao acted with grave abuse of discretion in granting the prosecutor’s motion to dismiss the criminal charges against the petitioner on the basis solely of the recommendation of the Secretary of Justice.

In moving for the dismissal of the case against the petitioner, the prosecutor averred:

"1. That on October 18, 1994 (sic) he was in receipt of a resolution dated September 23, 1994 from the Secretary of Justice, the dispositive portion of which reads as follows:

‘x x xE-xsm

WHEREFORE. Your resolution is partly reversed. You are directed to cause the dismissal of the information if any, filed against respondent Cristina Perez in the above-entitled case and report on the action taken therein within ten (10) days from receipt hereof.’

"2. That pursuant to the said resolution, an amended information is (sic) hereto attached excluding Cristina Perez is well in order and copy of said amended information is hereto attached.

"WHEREFORE, it is respectfully prayed that the case insofar as respondent Cristina Perez be dismissed and the amended information be admitted."[16]

The Order granting the above quoted motion states in its entirety that:

"O R D E RKy-le

"Finding no legal impediment to the same, the motion filed by Public Prosecutor Jesus Y. Manarang seeking the amendment of the Information is hereby GRANTED, and the Amended Information attached thereto is hereby ADMITTED to form part of the record of the above-entitled case.

"By the foregoing token, the warrant of arrest already issued is hereby recalled and rendered ineffective with respect only to accused CRISTINA PEREZ.

"SO ORDERED."[17]

The above quoted Order allowing the amendment of the information to exclude petitioner therefrom effectively dismissed the criminal case against the latter. That the trial judge did not make an independent evaluation or assessment of the merits of the case is apparent from the foregoing order. Judge Masadao’s reliance on the prosecutor’s averment that the Secretary of Justice had recommended the dismissal of the case against the petitioner was, to say the least, an abdication of the trial court’s duty and jurisdiction to determine a prima facie case, in blatant violation of this Court’s pronouncement in Crespo v. Mogul[18] as reiterated in the later case of Martinez v. Court of Appeals,[19] to wit: Ky-calr

"In other words, the grant of the motion to dismiss was based upon considerations other than the judge’s own personal individual conviction that there was no case against the accused. Whether to approve or disapprove the stand taken by the prosecution is not the exercise of discretion required in cases like this. The trial judge must himself be convinced that there was indeed no sufficient evidence against the accused, and this conclusion can be arrived at only after an assessment of the evidence in the possession of the prosecution. What was imperatively required was the trial judge’s own assessment of such evidence, it not being sufficient for the valid and proper exercise of judicial discretion merely to accept the prosecution’s word for its supposed insufficiency.

"As aptly observed by the Office of the Solicitor General, in failing to make an independent finding of the merits of the case and merely anchoring the dismissal on the revised position of the prosecution, the trial judge relinquished the discretion he was duty bound to exercise. In effect, it was the prosecution, through the Department of Justice which decided what to do and not the court which was reduced to a mere rubber stamp in violation of the ruling in Crespo v. Mogul."[20]Calr-ky

Petitioner contends that the doctrine laid down by this Court in Martinez v. Court of Appeals[21] is not applicable to the instant case for several reasons. First, in the Martinez case, the private offended party was deprived of due process as he was not furnished with a copy of the prosecution’s motion to dismiss, whereas in this case, not only was the private respondent furnished a copy of the motion to dismiss, it was also given an opportunity to file its comment thereon. Second, in the case at bar, the Solicitor General adopts the view that the trial judge acted correctly in granting the motion to dismiss while in Martinez v. Court of Appeals,[22] the Solicitor General recommended the setting aside of the order granting the motion to dismiss. Finally, the dismissal of the criminal case against the accused in Martinez v. Court of Appeals[23] was based solely on the findings of the Acting Secretary of Justice. On the other hand, at the time Judge Masadao granted the motion to dismiss the criminal case against the petitioner, he already had before him the affidavit-complaint of private respondent, the resolution of the prosecutor finding probable cause against the employees of the money shop, the prosecutor’s motion to dismiss the case against the petitioner, the private respondent’s comment and supplemental comment to the latter, and the position papers of the petitioner and the private respondent.[24]

Petitioner’s arguments are not convincing. Me-sm

A perusal of the Martinez case reveals that the opinion of this Court finding the dismissal of the case against the accused erroneous was not predicated on the violation of the private offended party’s right to due process nor on the recommendation of the Solicitor General. In fact, we categorically stated therein that the "fault or error tainting the order of dismissal of the lower court consists in its failure to observe procedural due process and to exercise its discretion properly and judiciously."[25] The first part refers to the fact that the private offended party was not afforded his day in court while the latter pertains to the failure of the judge to make an independent assessment of the evidence or lack thereof against the accused. Otherwise stated, the first is not the rationale behind the latter declaration. S-l-x

Furthermore, petitioner’s asseveration that as the records of the case were already before Judge Masadao, it can be safely assumed that he had studied them and thereafter agreed with the prosecution that the evidence did not support the earlier finding of probable cause against the petitioner. This is non sequitur and is simply belied by the order that nonchalantly granted the motion to dismiss. Moreover, Judge Masadao categorically declined to pass upon the merits of the private respondent’s motion for reconsideration of the dismissal of the criminal case against the petitioner, and chose to summarily deny the same on the ground of the private respondent’s lack of personality to revive the criminal charges against the petitioner.[26]

Second. The private respondent, as private complainant, had legal personality to assail the dismissal of the criminal case against the petitioner on the ground that the order of dismissal was issued with grave abuse of discretion amounting to lack or excess of jurisdiction. Sc-sl

x

In the case of Dela Rosa v. Court of Appeals,[27] we held that:

"In a special civil action for certiorari filed under Section 1, Rule 65 of the Rules of Court wherein it is alleged that the trial court committed grave abuse of discretion amounting to lack of jurisdiction or on other jurisdictional grounds, the rules state that the petition may be filed by the person aggrieved. In such case, the aggrieved parties are the State and the private offended party or complainant. The complainant has an interest in the civil aspect of the case so he may file such special civil action questioning the decision or action of the respondent court on jurisdictional grounds. In so doing, the complainant should not bring the action in the name of the People of the Philippines. The action may be prosecuted in (the) name of the said complainant."[28]

Thus, while it is only the Solicitor General that may bring or defend actions on behalf of the Republic of the Philippines, or represent the People or State in criminal proceedings pending in the Supreme Court and the Court of Appeals,[29] the private offended party retains the right to bring a special civil action for certiorari in his own name in criminal proceedings before the courts of law. Sl-xsc

Furthermore, our ruling in the case of Dee v. Court of Appeals[30] allowing the private offended party to file a special civil action for certiorari to assail the order of the trial judge granting the motion to dismiss upon the directive of the Secretary of Justice is apropos. We held therein that although the correct procedure would have been to appeal the recommendation of the Secretary of Justice to the Office of the President, the said remedy was unavailable to the private offended party as the penalty involved was neither reclusion perpetua nor death.[31] Hence, as no appeal, nor any plain, speedy, and adequate remedy in the ordinary course of law was available to the private offended party, filing of the petition for certiorari under Rule 65 of the Rules of Court was proper.[32]Sl-xm-is

It follows, therefore, that if the private respondent in this case may file a special civil action for certiorari, then with more reason does it have legal personality to move for a reconsideration of the order of the trial court dismissing the criminal charges against the petitioner. In fact, as a general rule, a special civil action will not lie unless a motion for reconsideration is first filed before the respondent tribunal, to allow it an opportunity to correct its assigned errors.[33]

In support of her position, petitioner invokes our ruling in Caes v. Intermediate Appellate Court[34] which, as correctly pointed out by the Court of Appeals, is not applicable to the case at bar. We quote with approval the Court of Appeals’ incisive opinion on this matter:

"For one, Caes is a prosecution for illegal possession of firearms and marijuana, conviction for which would not entail any civil liability on the part of the accused. Here, the very nature of the offense charged, to wit: estafa thru falsification of commercial documents, immediately connotes damages for which the accused may be held civilly liable in case of conviction. x x x. M-issdaa

"For another there is no immediate and direct offended party in Caes. It was a simple case of violation of special laws where no particular person or individual stands as a victim of the offense charged. Such is not the situation in the case at bench. For here, the anomalous abstraction of funds in the petitioner’s money shop directly and immediately inflicts financial damage to the petitioner.

"Then, too, in Caes, at stake is the constitutional right of the accused to a speedy trial. There, accused Joel B. Caes was a detention prisoner but the trial could not proceed because the prosecution witnesses repeatedly failed to appear, resulting in numerous postponements and resettings which lasted for more than one year. After the case was provisionally dismissed on motion of the prosecution, a prosecution witness whose non-appearance in court was the very cause for the dismissal, filed a motion to revive, which was granted by the trial judge. In vitiating the order of the revival, the Supreme Court did rule, among other things, that said witness has no personality to file the motion as only the prosecuting fiscal could. At the same time, however, the High Court stressed the right of the accused to a speedy trial and ruled as permanent the prior dismissal of the case even as the lower court termed is as merely "provisional". x x x. Sd-aad-sc

"x x x  x x x    x x x.

"Finally, it must be emphasized herein that unlike in Caes where the prosecution witness who filed the motion to revive could have easily asked the public prosecutor himself to file said motion, here, such an alternative is simply unthinkable for the simple reason that the public prosecutor, albeit originally for the inclusion of the herein private respondent in the information, was the very one who filed the amended information upon the direction of his superior, the Secretary of Justice. In short, while there does not exist a conflict of position between the prosecution witness and the public prosecutor in Caes, the present case presents the sad spectacle of an offended party very much anxious to prosecute an accused but the public prosecutor who must have shared the same interest, had to move for the exclusion of said accused because he was ordered by his boss."[35]

Third. This Court cannot pass upon the sufficiency or insufficiency of the evidence against the petitioner. Rtc-spped

As a general rule, the determination of probable cause is not lodged with this Court. Our duty in an appropriate case is confined to the issue of whether the executive or judicial determination, as the case may be, of probable cause was done without or in excess of jurisdiction or with grave abuse of discretion amounting to want of jurisdiction. This is consistent with the general rule that criminal prosecutions may not be restrained or stayed by injunction, preliminary or final.[36] There are, however, exceptions[37] to this rule, none of which are obtaining in the case now before us. 

x x xScl-a

x x x.

x x xx x x."

Under R.A. 8493, the absence during pre-trial of any witness for the prosecution listed in the Information, whether or not said witness is the offended party or the complaining witness, is not a valid ground for the dismissal of a criminal case. Although under the law, pre-trial is mandatory in criminal cases, the presence of the private complainant or the complaining witness is however not required. Even the presence of the accused is not required unless directed by the trial court.[9] It is enough that the accused is represented by his counsel.

See - People vs Tac-an : 148000 : February 27, 2003 : J. Callejo Sr : Second Division





"x x x.

Under R.A. 8493, the absence during pre-trial of any witness for the prosecution listed in the Information, whether or not said witness is the offended party or the complaining witness, is not a valid ground for the dismissal of a criminal case.  Although under the law, pre-trial is mandatory in criminal cases, the presence of the private complainant or the complaining witness is however not required.  Even the presence of the accused is not required unless directed by the trial court.[9]  It is enough that the accused is represented by his counsel.

Indeed, even if none of the witnesses listed in the information for the State appeared for the pre-trial, the same can and should proceed.  After all, the public prosecutor appeared for the State.  The public prosecutor is vested with authority to consider those matters catalogued in Section 2 of R.A. 8493.

The trial court thus acted without jurisdiction when it dismissed the case merely because none of the witnesses notified by the trial court appeared for the pre-trial.  The State, like the accused is also entitled to due process in criminal cases.[10]  The order of the trial court dismissing the criminal case deprived the State of its right to prosecute and prove its case.  Said order is, therefore, void for lack of jurisdiction, and is of no effect.[11]   By its ruling, this Court is not abetting or even glossing over the failure of the three witnesses of the prosecution to appear at the initial pre-trial of the case. Said witnesses may be cited by the trial court in contempt of court if their absence was unjustified.  Undue delay in the prosecution of the case should not also be condoned.  But the right of the State to prosecute the case and prove the criminal liability of the private respondent for the crime charged should not be derailed and stymied by precipitate and capricious dismissal of the case at the initial pre-trial stage. To do justice to private respondent and injustice to the State is no justice at all.  Justice must be done to all the parties alike.  Not too long ago this Court ruled in Dimatulac vs. Villon:[12]

The judge, on the other hand, “should always be imbued with a high sense of duty and responsibility in the discharge of his obligation to promptly and properly administer justice.”  He must view himself as a priest, for the administration of justice is akin to a religious crusade.  Thus, exerting the same devotion as a priest “in the performance of the most sacred ceremonies of religious liturgy,” the judge must render service with impartiality commensurate with the public trust and confidence reposed in him.  Although the determination of a criminal case before a judge lies within his exclusive jurisdiction and competence, his discretion is not unfettered, but rather must be exercised within reasonable confines.  The judge's action must not impair the substantial rights of the accused, nor the right of the State and offended party to due process of law.

Indeed, for justice to prevail, the scales must balance; justice is not to be dispensed for the accused alone.  The interests of society and the offended parties which have been wronged must be equally considered.  Verily, a verdict of conviction is not necessarily a denial of justice; and an acquittal is not necessarily a triumph of justice; for, to the society offended and the party wronged, it could also mean injustice.  Justice then must be rendered even-handedly to both the accused, on one hand, and the State and offended party, on the other.

The Court of Appeals also erred in ruling that  the reinstatement of the case does not place the private respondent in double jeopardy.  This Court ruled in Saldana vs. Court of Appeals, et al.[13] that:

When the prosecution is deprived of a fair opportunity to prosecute and prove its case, its right to due process is thereby violated (Uy vs. Genato, L-37399, 57 SCRA 123 [May 29, 1974]; Serino vs. Zoa, L-33116, 40 SCRA 433 [Aug. 31, 1971]; People vs. Gomez, L-22345, 20 SCRA 293 [May 29, 1967]; People vs. Balisacan, L-26376, 17 SCRA 1119 [Aug. 31, 1966]).

The cardinal precept is that where there is a violation of basic constitutional rights, courts are ousted of their jurisdiction.  Thus, the violation of the State’s right to due process raises a serious jurisdiction issue (Gumabon vs. Director of the Bureau of Prisons, L-300026, 37 SCRA 420 [Jan. 30, 1971]) which cannot be glossed over or disregarded at will.  Where the  denial of the fundamental right of due process is apparent, a decision rendered in disregard of that right is void for lack of jurisdiction (Aducayen vs. Flores, L-30370, [May 25, 1973] 51 SCRA 78; Shell Co. vs. Enage, L-30111-12, 49 SCRA 416 [Feb. 27, 1973]).  Any judgment or decision rendered notwithstanding such violation may be regarded as a ‘lawless thing, which can be treated as an outlaw and slain at sight, or ignored wherever it exhibits its head’ (Aducayen vs. Flores, supra).

Respondent Judge’s dismissal order dated July 7, 1967 being null and void for lack of jurisdiction, the same does not constitute a proper basis for a claim of double jeopardy (Serino vs. Zosa,  supra.).

xxx     xxx     xxx

Thus, apparently, to raise the defense of double jeopardy, three requisites must be present: (1) a first jeopardy must have 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.

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 vs. Ylagan, 58 Phil. 851).  The lower court was not competent as it was ousted of its jurisdiction when it violated the right of the prosecution to due processs.

In effect, the first jeopardy was never terminated, and the remand of the criminal case for further hearing and/or trial before the lower courts amounts merely to a continuation of the first jeopardy, and does not expose the accused to a second jeopardy. ..

x xx."

Prosecution witnesses’ initial reluctance to testify. - People vs Caraig : 116224-27 : March 28, 2003 : C.J. Davide Jr : First Division

See - People vs Caraig : 116224-27 : March 28, 2003 : C.J. Davide Jr : First Division





"x x x.

Caraig wants to impress us that he was merely a horrified spectator of the gruesome events that unfolded before him.  We are not persuaded.  His version is incredible and must be rejected in light of his positive identification as one of the assailants, as well as the categorical and straightforward testimony of the prosecution witnesses.  His bare and uncorroborated denial amounted to nothing more than a negative and self-serving evidence unworthy of weight in law.[37]

Caraig cannot fault the prosecution witnesses’ initial reluctance to testify. It is not uncommon for a witness to a crime to show some reluctance about getting involved in a criminal case. The natural reticence of most people to get involved is of judicial notice. It is understandable for a witness to fear for his safety,[38] especially in this case where PC men were involved in the commission of the crime.  Such initial reticence does not affect the witnesses’ credibility.[39]  Besides, their delay in testifying was principally caused by the delay in the trial caused by, among other things, Caraig’s success in avoiding the service of the warrant of arrest.  It was only in 1991 when he was finally arrested.

x x x."

Corrupt practices of public officers - G.R. NO. 184537

See -  G.R. NO. 184537





"x x x.

Petitioners were charged with a violation of Section 3(e) of R.A. No. 3019 or the Anti-Graft and Corrupt Practices Act which reads:

                   Section 3.  Corrupt practices of public officers.- In addition to acts or omissions of public officers already penalized by existing law, the following shall constitute corrupt practices of any public officer and are hereby declared to be 0unlawful:

           

                        x x x

                   (e)  Causing any undue injury to any party, including the Government, or giving any private party any unwarranted benefits, advantage or preference in the discharge of his official, administrative or judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence.  This provision shall apply to officers and employees charged with the grant of licenses or permits or other concessions.

                             The essential elements of the offense are as follows:

         

1.       The accused must be a public officer discharging administrative, judicial or official functions;

2.      He must have acted with manifest partiality, evident bad faith or inexcusable negligence; and

3.      That his action caused any undue injury to any party, including the government, or giving any private party unwarranted benefits, advantage or preference in the discharge of his functions.[14]

In a string of decisions, the Court has consistently ruled:

R.A. 3019, Section 3, paragraph (e), as amended, provides as one of its elements that the public officer should have acted by causing any undue injury to any party, including the Government, or by giving any private party unwarranted benefits, advantage or preference in the discharge of his functions.  The use of the disjunctive term “or” connotes that either act qualifies as a violation of Section 3 paragraph (e), or as aptly held in Santiago, as two (2) different modes of committing the offense.  This does not however indicate that each mode constitutes a distinct offense, but rather, that an accused may be charged under either mode or under both.[15]

The afore-stated ruling is consistent with the well-entrenched principle of statutory construction that “The word or is a disjunctive term signifying disassociation and independence of one thing from the other things enumerated; it should, as a rule, be construed in the sense in which it ordinarily implies, as a disjunctive word.”[16]

 Contrary to the argument of petitioners, there is no substituted information.  The Information dated August 17, 2007 filed in Criminal Case No. SB-08 CRM 0263 charged the same offense, that is, violation of Section 3(e) of Republic Act No. 3019.  Only the mode of commission was modified.  While jurisprudence, the most recent being Talaga, Jr. v. Sandiganbayan,[17] provides that there are two (2) acts or modes of committing the offense, thus: a) by causing any undue injury to any party, including the government; or b) by giving any private party any unwarranted benefit, advantage or preference, it does not mean that each act or mode constitutes a distinct offense.  An accused may be charged under either mode[18] or under both should both modes concur.[19]

 x x x."

Illegal recruitment in large scale - G.R. No. 185277

See  -  G.R. No. 185277





"x x x.

  Likewise, we find that the trial court and the Court of Appeals correctly found appellant guilty of the crime of illegal recruitment in large scale under Republic Act No. 8042,[59] the pertinent provision of which provides:

            Sec. 6. Definition. – For purposes of this Act, illegal recruitment shall mean any act of canvassing, enlisting, contracting, transporting, utilizing, hiring, or procuring workers and includes referring, contract services, promising or advertising for employment abroad, whether for profit or not, when undertaken by a non-licensee or non-holder of authority contemplated under Article 13(f) of Presidential Decree No. 442, as amended, otherwise known as the Labor Code of the Philippines:  Provided, That any such non-licensee or non-holder who, in any manner, offers or promises for a fee employment abroad to two or more persons shall be deemed so engaged. x x x.

x x x x

Illegal recruitment is deemed committed by a syndicate if carried out by a group of three (3) or more persons conspiring or confederating with one another.  It is deemed committed in large scale if committed against three (3) or more persons individually or as a group. x x x.

          To constitute illegal recruitment in large scale, three elements must concur:  (a) the offender has no valid license or authority required by law to enable him to lawfully engage in recruitment and placement of workers; (b) the offender undertakes any of the activities within the meaning of “recruitment and placement” under Article 13(b) of the Labor Code, or any of the prohibited practices enumerated under Article 34 of the same Code (now Section 6 of Republic Act No. 8042); and, (c) the offender committed the same against three (3) or more persons, individually or as a group.[60]

Article 13(b) of the Labor Code defines recruitment and placement as “any act of canvassing, enlisting, contracting, transporting, utilizing, hiring or procuring workers; and includes referrals, contract services, promising or advertising for employment, locally or abroad, whether for profit or not.”  In the simplest terms, illegal recruitment is committed by persons who, without authority from the government, give the impression that they have the power to send workers abroad for employment purposes.[61]

We are persuaded that all three elements of illegal recruitment in large scale were proven in this case.

First, appellant had no valid license or authority to engage in the recruitment and placement of workers. This is established by theKaragdagang Salaysay executed by Pacardo on 8 March 2002, paragraph 6 of which states that while MPM applied for a license, it was never issued one, for which reason, it changed its name to New Filipino Manpower Development and Services, Inc.[62]

Second, despite not having such authority, appellant nevertheless engaged in recruitment activities, offering and promising jobs to private complainants and collecting from them various amounts as placement fees.  This is substantiated by the respective testimonies of the three private complainants.

Fernandez narrated that it was appellant who assured him that if he pays P45,000.00, he would be able to leave for Korea within two to three months.  Both Fernandez and Panlilio affirmed that they gave the money to appellant who issued a receipt therefore.  Filomeno testified that when she went to the office of Martir, the latter and appellant were in the process of accepting applicants for work overseas.  They told her that as a factory worker in Korea, she would have a monthly salary of US$500.00 with overtime pay.  Relying on their misrepresentations, she paid the placement fee to appellant and Martir.

Thus, the mere denials of appellant cannot stand against the clear, positive and straightforward testimonies of private complainants who positively identified appellant as one of two persons who undertook to recruit them for a supposed employment in Korea.  As already previously mentioned, absent any evidence that the prosecution witnesses were motivated by improper motives, the trial court’s assessment of the credibility of the witnesses shall not be interfered with by this Court.

x x x."

Estafa - G.R. No. 185277

See  -  G.R. No. 185277





"x x x.

          Appellant professes lack of criminal intent to escape liability for estafa.  He maintains that, like the private complainants, he is also an applicant trying his luck at finding work overseas; that he would usually help out in office work on occasions that he would visit the agency as an applicant which explains why complainants could have indeed seen and conversed with him about their applications.

          These implausible arguments fail to persuade us.

          As with the Regional Trial Court and the Court of Appeals, this Court is likewise convinced that the prosecution was able to prove, beyond reasonable doubt, appellant’s guilt for estafa under Article 315 (2)(a) of the Revised Penal Code, which provides:

Article 315. Swindling (estafa). x x x

                        x x x x

1.                  By means of any of the following false pretenses or fraudulent acts executed prior to or simultaneously with the commission of the fraud:

(a)By using fictitious name, or falsely pretending to possess power, influence, qualifications, property, credit, agency, business or imaginary transactions, or by means of other similar deceits.

          Under the above-quoted provision, there are three (3) ways of committing estafa:  (1) by using a fictitious name; (2) by falsely pretending to possess power, influence, qualifications, property, credit, agency, business or imaginary transactions; and (3) by means of other similar deceits.[56]  To convict for this type of crime, it is essential that the false statement or fraudulent representation constitutes the very cause or the only motive which induces the complainant to part with the thing of value.[57]

          In the case before us, appellant and Martir led the private complainants to believe that they possessed the power, qualifications and means to provide work in Korea.  During the trial of these cases, it was clearly shown that, together with Martir, appellant discussed with private complainants the fact of their being deployed abroad for a job if they pay the processing fee, and that he actually received payments from private complainants.  Thus, it was proven beyond reasonable doubt that the three private complainants were deceived into believing that there were jobs waiting for them in a factory in Korea when in fact there were none.  Because of the assurances of appellant, each of the private complainants parted with their money and suffered damages as a result of their being unable to leave for Korea.  The elements ofestafa ─ deceit and damage ─ are thus indisputably present, making the conviction for estafa appropriate.

 x x x."

Provisional dismissal. - G.R. No. 181249

See  -  G.R. No. 181249





"x x x.

Appellant assails the continuation of the trial against her notwithstanding the order of provisional dismissal earlier issued by the trial court following the repeated failure of the prosecution witnesses to attend scheduled hearings. Specifically, appellant argues that the case should not have been revived without the proper motion from the prosecution.

Appellant’s contention is without merit. A careful perusal of the records shows that the provisional dismissal, which was declared in open court by the judge on September 25, 2001, was never reduced into writing after Special Investigators Kawada and Manguerra appeared at the last minute of the said hearing.[39] Moreover, it appears that the said issue was brought up by appellant’s counsel in the next hearing and was settled when the trial court judge issued an order, again in open court, recalling and setting aside the September 25, 2001 order provisionally dismissing the case.[40]

It bears emphasizing that an oral order has no juridical existence until and unless it had been reduced into writing and promulgated, i.e. delivered by the judge to the clerk of court for filing, release to the parties and implementation.[41] In fact, even if it had been written and promulgated, or even if it had already been properly served on the parties, it is still plainly within the power of the judge to recall it and set it aside because every court has the inherent power, among others, to amend and control its process and orders so as to make them conformable to law and justice.[42]

x x x."

Verdicts of acquittal are to be regarded as absolutely final and irreviewable - G.R. No. 148226

See -  G.R. No. 148226





"x x x.

At least, the mistakes ascribed to the trial court are not errors of jurisdiction correctible by the special civil action for certiorari, but errors of judgment, which is correctible by a petition for review on certiorari under Rule 45 of the Revised Rules of Court. The mere fact that a court erroneously decides a case does not necessarily deprive it of jurisdiction. Thus, assuming arguendo that the trial court committed a mistake in its judgment, the error does not vitiate the decision, considering that it has jurisdiction over the case.[27] For this reason, the dismissal of the instant petition is called for.

          In our jurisdiction, availment of the remedy of certiorari to correct an erroneous acquittal may be allowed in cases where petitioner has clearly shown that the public respondent acted without jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction. However, and more serious than the procedural infraction, if the petition merely calls for an ordinary review of the findings of the court a quo, we would run afoul of the constitutional right against double jeopardy.  Such recourse is tantamount to converting the petition for certiorari into an appeal, which is proscribed by the Constitution, the Rules of Court and prevailing jurisprudence on double jeopardy.[28]Verdicts of acquittal are to be regarded as absolutely final and irreviewable. The fundamental philosophy behind the principle is to afford the defendant, who has been acquitted, final repose and to safeguard him from government oppression through the abuse of criminal processes.[29]

This Court cannot rule any other way. Accused Joseph Terrado, after being acquitted of the crime charged, must be afforded the protection against repeated attempts for conviction, in faithful adherence to the constitutional rule against double jeopardy.

 x x x."