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RULE 111 PROSECUTION OF CIVIL ACTION

care and diligence as the best of his

judgment would dictate under said
circumstance, by failing to monitor
and regulate properly the levels of
anesthesia administered to said
GERALD ALBERT GERCAYO and
using 100% halothane and other
anesthetic medications, causing as a
consequence of his said carelessness
and negligence, said GERALD
ALBERT GERCAYO suffered a cardiac
arrest and consequently a defect
called
hypoxic
encephalopathy
meaning insufficient oxygen supply
in the brain, thereby rendering said
GERALD
ALBERT
GERCAYO
incapable of moving his body, seeing,
speaking or hearing, to his damage
and prejudice.

SOLIDUM vs. PEOPLE

718 SCRA 263
2014
Criminal Procedure; Prosecution of Offenses; Civil
Liability; In criminal prosecutions, the civil action for
the recovery of civil liability that is deemed instituted
with the criminal action refers only to that arising from
the offense charged.
Facts of the Case:
Gerald Albert Gercayo (Gerald) was born on June 2,
19922 with an imperforate anus. Two days after his
birth, Gerald underwent colostomy, a surgical
procedure to bring one end of the large intestine out
through the abdominal wall, enabling him to excrete
through a colostomy bag attached to the side of his
body.
On May 17, 1995, Gerald, then three years old, was
admitted at the Ospital ng Maynila for a pull-through
operation. Dr. Leandro Resurreccion headed the
surgical team, and was assisted by Dr. Joselito Luceo,
Dr. Donatella Valea and Dr. Joseph Tibio. The
anesthesiologists included Dr. Marichu Abella, Dr. Arnel
Razon and petitioner Dr. Fernando Solidum (Dr.
Solidum). During the operation, Gerald experienced
bradycardia, and went into a coma. His coma lasted for
two weeks,9 but he regained consciousness only after a
month. He could no longer see, hear or move.
Agitated by her sons helpless and unexpected
condition, Ma. Luz Gercayo (Luz) lodged a complaint for
reckless imprudence resulting in serious physical
injuries with the City Prosecutors Office of Manila
against the attending physicians.
Upon a finding of probable cause, the City Prosecutors
Office filed an information solely against Dr. Solidum,
alleging:
That on or about May 17, 1995, in the
City of Manila, Philippines, the said
accused,
being
then
an
anesthesiologist at the Ospital ng
Maynila, Malate, this City, and as such
was tasked to administer the
anesthesia on three-year old baby
boy GERALD ALBERT GERCAYO,
represented by his mother, MA. LUZ
GERCAYO, the former having been
born with an imperforate anus [no
anal opening] and was to undergo an
operation for anal opening [pull
through operation], did then and
there willfully, unlawfully and
feloniously fail and neglect to use the

The case was initially filed in the Metropolitan Trial

Court of Manila, but was transferred to the RTC
pursuant to Section 5 of Republic Act No. 8369 (The
Family Courts Act of 1997), where it was docketed as
Criminal Case No. 01-190889.
On July 19, 2004, the RTC rendered its judgment finding
Dr. Solidum guilty beyond reasonable doubt of reckless
imprudence resulting to serious physical injuries. The
decree of the RTC, as affirmed by the CA, of expressly
holding Ospital ng Maynila civilly liable jointly and
severally with Dr. Solidum.
On January 20, 2010, the CA affirmed the conviction of
Dr. Solidum, pertinently stating and ruling: The case
appears to be a textbook example of res ipsa loquitur.
Dr. Solidum filed a motion for reconsideration, but the
CA denied his motion on May 7, 2010.
Upon appeal with the Supreme Court, the Court
acquitted Dr. Solidum of the crime charged for failing of
the prosecution to prove his guilt beyond reasonable
doubt.
Issue:
Whether or not Ospital ng Maynila is civilly liable?
Ruling:
The Court ruled in the negative. Although the result
now reached has resolved the issue of civil liability, we
have to address the unusual decree of the RTC, as
affirmed by the CA, of expressly holding Ospital ng
Maynila civilly liable jointly and severally with Dr.
Solidum. The decree was flawed in logic and in law.

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In criminal prosecutions, the civil action for the
recovery of civil liability that is deemed instituted with
the criminal action refers only to that arising from the
offense charged.48 It is puzzling, therefore, how the RTC
and the CA could have adjudged Ospital ng Maynila
jointly and severally liable with Dr. Solidum for the
damages despite the obvious fact that Ospital ng
Maynila, being an artificial entity, had not been charged
along with Dr. Solidum. The lower courts thereby acted
capriciously and whimsically, which rendered their
judgment against Ospital ng Maynila void as the product
of grave abuse of discretion amounting to lack of
jurisdiction.
Not surprisingly, the flawed decree raises other
material concerns that the RTC and the CA overlooked.
We deem it important, then, to express the following
observations for the instruction of the Bench and Bar.
For one, Ospital ng Maynila was not at all a party in the
proceedings. Hence, its fundamental right to be heard
was not respected from the outset. The R TC and the CA
should have been alert to this fundamental defect.
Verily, no person can be prejudiced by a ruling rendered
in an action or proceeding in which he was not made a
party. Such a rule would enforce the constitutional
guarantee of due process of law.
Moreover, Ospital ng Maynila could be held civilly liable
only when subsidiary liability would be properly
enforceable pursuant to Article 103 of the Revised Penal
Code. But the subsidiary liability seems far-fetched here.
The conditions for subsidiary liability to attach to
Ospital ng Maynila should first be complied with. Firstly,
pursuant to Article 103 of the Revised Penal Code,
Ospital ng Maynila must be shown to be a corporation
"engaged in any kind of industry." The term industry
means any department or branch of art, occupation or
business, especially one that employs labor and capital,
and is engaged in industry.49 However, Ospital ng
Maynila, being a public hospital, was not engaged in
industry conducted for profit but purely in charitable
and humanitarian work.50Secondly, assuming that
Ospital ng Maynila was engaged in industry for profit,
Dr. Solidum must be shown to be an employee of Ospital
ng Maynila acting in the discharge of his duties during
the operation on Gerald. Yet, he definitely was not such
employee but a consultant of the hospital. And, thirdly,
assuming that civil liability was adjudged against Dr.
Solidum as an employee (which did not happen here),
the execution against him was unsatisfied due to his
being insolvent.

CASTILLO vs. SALVADOR

G.R. No. 191240
July 30, 2014
Facts of the Case:
Before us is a petition for review on certiorari which
assails the Decision1 dated February 11, 2010 of the
Court of Appeals (CA) in CA-G.R. CR No. 30151 with
respect only to the civil aspect of the case as respondent
Phillip R. Salvador had been acquitted of the crime of
estafa. Respondent Phillip Salvador and his brother
Ramon Salvador were charged with estafa under Article
315, paragraph 2 (a) of the Revised Penal Code in an
Information2
which
reads:
That during the period from March 2001 up to May
2002, in the City of Las Pias, Philippines, and within
the jurisdiction of this Honorable Court, the abovenamed accused, conspiring and confederating together
and both of them mutually helping and aiding one
another, with intent to gain and by means of false
pretenses or fraudulent acts executed prior to or
simultaneously with the commission of the fraud, did
then and there willfully, unlawfully and feloniously
defraud the complainant CRISTINA B. CASTILLO, in the
amount of US$100,000.00 in the following manner, to
wit:
Respondents convinced the complainant to invest into
the remittance business in the name of accused PHILLIP
R. SALVADOR in Hongkong, representing to her that
they will personally take charge of the operations and
marketing of the said business, assuring her with huge
profits because of the popularity of accused PHILLIP R.
SALVADOR, knowing very well that the said
manifestations/representations
and
fraudulent
manifestations were false and were intended only to
exact money from the Complainant, and by reason of the
said false representations made by both accused, the
Complainant gave and entrusted to the accused the
amount of US$100,000.00 as seed money to start the
operations of the business and the said accused, once in
the possession of the said amount of money,
misappropriated, misapplied and/or converted the
same to their own personal use and benefit, to the
damage and prejudice of the Complainant in the
aforementioned amount of US$100,000.00.
Issue:
The trial court was correct in convicting the respondent
so that even if the court of appeals decided to acquit him
it should have at least retained the award of damages to
the petitioner.
Ruling:
We find no merit in the petition.
To begin with, in Manantan v. CA, we discussed the

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consequences of an acquittal on the civil liability of the
accused as follows:
Our law recognizes two kinds of acquittal, with different
effects on the civil liability of the accused. First is an
acquittal on the ground that the accused is not the
author of the actor omission complained of. This
instance closes the door to civil liability, for a person
who has been found to be not the perpetrator of any act
or omission cannot and can never be held liable for such
act oromission. There being no delict, civil liability ex
delictois out of the question, and the civil action, if any,
which may be instituted must be based on grounds
other than the delict complained of. This is the situation
contemplated in Rule III of the Rules of Court. The
second instance is an acquittal based on reasonable
doubt on the guilt of the accused. In this case, even if the
guilt of the accused has not been satisfactorily
established, he is not exempt from civil liability which
may be proved by preponderance of evidence only. This
is the situation contemplated in Article 29 of the Civil
Code, where the civil action for damages is "for the same
act or omission." x xx.
Since the acquittal is based on reasonable doubt,
respondent is not exempt from civil liability which may
be proved by preponderance of evidence only.
WHEREFORE, the petition for review is DENIED.
LILY LIMvs.KOU CO PING a.k.a. CHARLIE CO
G.R. No. 175256
FACTS:
FR Cement Corporation (FRCC) issued several
withdrawal authoritiesfor the account of cement dealers
and traders, Fil-Cement Center and Tigerbilt. Fil-Cement
Center and Tigerbilt, sold the withdrawal authorities
covering 50,000 bags of cement to Co for the amount of
P 3.15 million or P 63.00 per bag. Co sold these
withdrawal authorities to Lim at the price of P 64.00 per
bag or a total of P 3.2 million.
Using the withdrawal authorities, Lim withdrew the
cement bags from FRCC on a staggered basis. She
successfully withdrew 2,800 bags of cement, however,
FRCC did not allow Lim to withdraw the remaining
37,200 bags covered by the withdrawal authorities due
to a price increase. Lim objected and maintained that
the withdrawal authorities she bought were not subject
to price fluctuations. Lim sought legal recourse after her
demands for Co to resolve the problem with the plant or
for the return of her money had failed. Consequently,
Information for Estafa through Misappropriation or
Conversion was filed against Co before the RTC of Pasig
City. The trial acquitted Co for the crime of estafa and
also relieved Co of civil liability to Lim. Lim sought
reconsideration, however, the trial court denied the
motion. Thereafter, Lim filed a notice of appeal on the

civil aspect of the criminal case.

Lim again filed a complaint for specific performance and
damages before the RTC of Manila. The complaint
asserted two causes of action: breach of contract and
abuse of rights. Co filed motions to dismiss the said civil
caseand appeal in the civil aspect of the estafa case on
the ground of lis pendens and forum shopping.
The CA favorably resolved Cos motion and dismissed
Lims appeal from the civil aspect of the estafa case.
Meanwhile, the Manila RTC denied Cos Motion to
Dismiss and held that there was no forum shopping
because the causes of action invoked in the two cases
are different. It observed that the civil complaint before
it is based on an obligation arising from contract and
quasi-delict, whereas the civil liability involved in the
appeal of the criminal case arose from a felony. The CA
(17th) agreed with the Manila RTC that the elements of
litis pendentia and forum shopping are not met in the
two proceedings because they do not share the same
cause of action.The CA deniedCos motion for
reconsideration. Hence, this petition.
ISSUE:
Whether or not Lim commit forum shopping in filing the
civil case for specific performance and damages during
the pendency of her appeal on the civil aspect of the
criminal case for estafa?
HELD:
No. A single act or omission that causes damage to an
offended party may give rise to two separate civil
liabilities on the part of the offender ex delicto, that is, civil liability arising from the criminal
offense under Article 100 of the Revised Penal Code,
and (2) independent civil liability, that is, civil liability
that may be pursued independently of the criminal
proceedings. The independent civil liability may be
based on "an obligation not arising from the act or
omission complained of as a felony," as provided in
Article 31 of the Civil Code (such as for breach of
contract or for tort). It may also be based on an act or
omission that may constitute felony but, nevertheless,
treated independently from the criminal action by
specific provision of Article 33 of the Civil Code ("in
cases of defamation, fraud and physical injuries").
The civil liability arising from the offense or ex delicto is
based on the acts or omissions that constitute the
criminal offense; hence, its trial is inherently
intertwined with the criminal action. For this reason,
the civil liability ex delicto is impliedly instituted with
the criminal offense.If the action for the civil liability ex
delicto is instituted prior to or subsequent to the filing
of the criminal action, its proceedings are suspended
until the final outcome of the criminal action. The civil

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liability based on delict is extinguished when the court
hearing the criminal action declares that "the act or
omission from which the civil liability may arise did not
exist."
On the other hand, the independent civil liabilities are
separate from the criminal action and may be pursued
independently, as provided in Articles 31 and 33 of the
Civil Code.
Because of the distinct and independent nature of the
two kinds of civil liabilities, jurisprudence holds that the
offended party may pursue the two types of civil
liabilities simultaneously or cumulatively, without
offending the rules on forum shopping, litis pendentia,
or res judicata.As explained in Cancio, Jr. v. Isip:
One of the elements of res judicata is
identity of causes of action. In the
instant case, it must be stressed that
the action filed by petitioner is an
independent civil action, which
remains separate and distinct from
any criminal prosecution based on
the same act. Not being deemed
instituted in the criminal action
based on culpa criminal, a ruling on
the culpability of the offender will
have no bearing on said independent
civil action based on an entirely
different cause of action, i.e., culpa
contractual.
In the same vein, the filing of the
collection case after the dismissal of
the estafa cases against the offender
did not amount to forum-shopping.
The essence of forum shopping is the
filing of multiple suits involving the
same parties for the same cause of
action, either simultaneously or
successively, to secure a favorable
judgment. Although the cases filed by
[the offended party] arose from the
same act or omission of [the
offender], they are, however, based
on different causes of action. The
criminal cases for estafa are based on
culpa criminal while the civil action
for collection is anchored on culpa
contractual. Moreover, there can be
no forum-shopping in the instant
case because the law expressly
allows the filing of a separate civil
action
which
can
proceed
independently of the criminal action.
Since civil liabilities arising from felonies and those
arising from other sources of obligations are authorized

by law to proceed independently of each other, the

resolution of the present issue hinges on whether the
two cases herein involve different kinds of civil
obligations such that they can proceed independently of
each other. The answer is in the affirmative.
The first action is clearly a civil action ex delicto, it
having been instituted together with the criminal action.
On the other hand, the second action, judging by the
allegations contained in the complaint,is a civil action
arising from a contractual obligation and for tortious
conduct (abuse of rights).
Thus, Civil Case No. 05-112396 involves only the
obligations arising from contract and from tort, whereas
the appeal in the estafa case involves only the civil
obligations of Co arising from the offense charged. They
present different causes of action, which under the law,
are considered "separate, distinct, and independent"
from each other. Both cases can proceed to their final
adjudication, subject to the prohibition on double
recovery under Article 2177 of the Civil Code.

AVELINO CASUPANAN and ROBERTO CAPITULO,

petitioners, vs. MARIO LLAVORE LAROYA,
respondent.
G.R. No. 145391. August 26, 2002.*
All the other civil actions under Articles 32, 33, 34
and 2176 of the Civil Code are no longer deemed
instituted, and may be filed separately and
prosecuted independently even without any
reservation in the criminal action. The failure to
make a reservation in the criminal action is not a
waiver of the right to file a separate and
independent civil action based on these articles of
the Civil Code. Similarly, the accused can file a civil
action for quasi-delict for the same act or omission
he is accused of in the criminal case.
Facts:
Two vehicles, one driven by respondent Laroya and the
other owned by petitioner Capitulo and driven by
petitioner Casupanan , figured in an accident. As a
result, two cases were filed with the MCTC of Capas,
Tarlac. Laroya filed a criminal case against Casupanan
for reckless imprudence resulting in damage to
property. On the other hand, Casupanan and Capitulo
filed a civil case against Laroya for quasi-delict.
When the civil case was filed, the criminal case was then
at its preliminary investigation stage. Laroya, defendant
in the civil case, filed a motion to dismiss the civil case
on the ground of forum-shopping considering the
pendency of the criminal case. The MCTC granted the
motion and dismissed the civil case.
On Motion for Reconsideration, Casupanan and Capitulo
insisted that the civil case is a separate civil action
which can proceed independently of the criminal case.

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The MCTC denied the MR. Casupanan and Capitulo filed
a petition for certiorari under Rule 65 before the RTC
assailing the MCTCs Order of dismissal. RTC dismisses
the petition for lack of merit. MR denied by RTC. Hence,
this petition.
Issue: Whether an accused in a pending criminal case
for reckless imprudence can validly file, simultaneously
and independently, a separate civil action for quasidelict against the private complainant in the criminal
case?
Held:
Yes. Laroya filed the criminal case for reckless
imprudence resulting in damage to property based on
the Revised Penal Code while Casupanan and Capitulo
filed the civil action for damages based on Article 2176
of the Civil Code. Although these two actions arose from
the same act or omission, they have different causes of
action. The criminal case is based on culpa criminal
punishable under the Revised Penal Code while the civil
case is based on culpa aquiliana actionable under
Articles 2176 and 2177 of the Civil Code.
There is nothing in the law or rules that state only the
private complainant in a criminal case may invoke these
articles.
Moreover, paragraph 6, Section 1, Rule 111 of the 2000
Rules on Criminal Procedure expressly requires the
accused to litigate his counterclaim in a separate civil
action, to wit:
SECTION 1. Institution of criminal and civil actions.
(a) x x x.
No counterclaim, cross-claim or third-party complaint
may be filed by the accused in the criminal case, but any
cause of action which could have been the subject
thereof may be litigated in a separate civil action.
(Emphasis supplied)
Since the present Rules require the accused in a
criminal action to file his counterclaim in a separate
civil action, there can be no forum-shopping if the
accused files such separate civil action.
Conclusion of SC:
Section 1 of Rule 111, the independent civil action in
Articles 32, 33, 34 and 2176 of the Civil Code is not
deemed instituted with the criminal action but may be
filed separately by the offended party even without
reservation. The commencement of the criminal action
does not suspend the prosecution of the independent
civil action under these articles of the Civil Code.
The suspension in Section 2 of the present Rule 111
refers only to the civil action arising from the crime, if
such civil action is reserved or filed before the
commencement of the criminal action. Thus, the
offended party can file two separate suits for the same
act or omission. The first a criminal case where the civil
action to recover civil liability ex-delicto is deemed
instituted, and the other a civil case for quasi-delict
without violating the rule on non-forum shopping. The
commencement or prosecution of the criminal action
will not suspend the civil action for quasi-delict. The
only limitation is that the offended party cannot recover

damages twice for the same act or omission of the

defendant.
Similarly, the accused can file a civil action for quasidelict for the same act or omission he is accused of in
the criminal case. This is expressly allowed in
paragraph 6, Section 1 of the present Rule 111 which
states that the counterclaim of the accused may be
litigated in a separate civil action.
This is only fair for two reasons:
First, the accused is prohibited from setting up any
counterclaim in the civil aspect that is deemed
instituted in the criminal case. The accused is
therefore forced to litigate separately his counterclaim
against the offended party. If the accused does not file
a separate civil action for quasi-delict, the
prescriptive period may set in since the period
continues to run until the civil action for quasidelict is filed.
Second, the accused, who is presumed innocent, has
a right to invoke Article 2177 of the Civil Code, in
the same way that the offended party can avail of
this remedy which is independent of the criminal
action. To disallow the accused from filing a
separate civil action for quasi-delict, while refusing
to recognize his counterclaim in the criminal case, is
to deny him due process of law, access to the courts,
and equal protection of the law.
Thus, the civil action based on quasi-delict filed
separately by Casupanan and Capitulo is proper.

People vs. Romero

306 SCRA 90
Effect of Death on Civil Action

Facts:
Complainant Ernesto A. Ruiz was a radio commentator
of Radio DXRB, Butuan City. He came to know the
business of Surigao San Andres Industrial Development
Corporation (SAIDECOR), when he interviewed accused
Martin Romero and Ernesto Rodriguez regarding the
corporations investment operations in Butuan City and
Agusandel Norte. Romero was the president and
general manager of SAIDECOR, while Rodriguez was the
operations manager.
Complainant Ernesto A. Ruiz went to SAIDECOR office in
Butuan City to make an investment, accompanied by his
friend Jimmy Acebu, and SAIDECOR collection agent
Daphne Parrocho. After handing over the amount
(P150,000.00) to Ernesto Rodriguez, complainant
received a postdated Butuan City Rural Bank check
instead of the usual redeemable coupon.
When the check was presented to the bank for payment,
it was dishonored for insufficiency of funds, as
evidenced by the check return slip issued by the bank.
Both accused could not be located and demand for
payment was made only sometime in November 1989
during the preliminary investigation of this case.
Accused responded that they had no money.
Martin Romero and Ernesto Rodriguez was charged for
violation of Batas PambansaBilang 22, arising from the

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issuance of the same check. Both of the accused pleaded
not guilty but nevertheless, the RTC convicted each of
them of estafa under Article 315, par. 2 (d) of the
Revised Penal Code, in relation to Presidential Decree
No. 1689, for widescale swindling, and sentencing each
of them to suffer the penalty of life imprisonment and to
jointly and severally pay Ernesto A. Ruiz the amount of
one hundred fifty thousand pesos .
Accused filed their notice of appeal which was granted
by the RTC. However, during the pendency of the
appeal, Ernesto Rodriguez died.
Issue:
Whether or not the Criminal and Civil Liability ex
delicto of Ernesto Rodriguez were extinguished.
Held:
During the pendency of the appeal, on November 12,
1997, accused Ernesto Rodriguez died. As a
consequence of his death before final judgment, his
criminal and civil liability ex delicto, were extinguished.
The Court notes that one of the accused-appellants,
Ernesto Rodriguez, died pending appeal. Pursuant to
the doctrine established in People vs. Bayotas, the
death of the accused pending appeal of his conviction
extinguishes his criminal liability as well as the civil
liability ex delicto. The criminal action is
extinguished inasmuch as there is no longer a
defendant to stand as the accused, the civil action
instituted therein for recovery of civil liability ex
delicto is ipso facto extinguished, grounded as it is on
the criminal case. Corollarily, the claim for civil
liability survives notwithstanding the death of the
accused, if the same may also be predicated on a
source of obligation other than delict.
MAGESTRADO vs. PEOPLE
GR No. 148072
July 10, 2007
Prejudicial Question
Facts:
Private
respondent
Librojo filed
a
criminal
complaint against petitioner, for allegedly committing
perjury in executing an affidavit of loss to support his
request for issuance of a new owners duplicate copy of
the TCT Magestrado, with The OCP of Quezon City, who
through its ACP filed an information for perjury against
petitioner with the MeTC of Quezon City. Petitioner filed
a motion for suspension of proceedings based on
a prejudicial question. He alleged that a case for
recovery of a sum of money and a case for Cancellation
of Mortgage, Delivery of Title and Damages pending
before the RTC of QC must be resolved first before
Criminal Case for perjury may proceed since the issues
in the said civil cases are similar or intimately related to
the issues raised in the criminal action. The same was
denied by the MeTC. The motion for recon suffered the
same fate.
A petition for certiorari (Rule 65) with preliminary
injunction was thereafter filed by Petitioner with the
RTC, which was denied. The motion for reconsideration
was likewise denied. Dissatisfied, petitioner filed with
the Court of Appeals a Petition for Certiorari under Rule

65. The CA denied the petition and the subsequent

motion for reconsideration on the ground that
petitioners remedy should have been an appeal from
the dismissal by RTC.
Hence, petitioner filed a Petition for Review
on Certiorari under Rule 45.
Issue:
Whether or not it is proper to suspend the case of
perjury on the ground that a prejudicial question exist?
Held:
No. the recovery of a sum of money and a case for
Cancellation of Mortgage, Delivery of Title and Damages
are not prejudicial questions to a case of perjury.
A perusal of the allegations in the complaints
show that the civil cases pending before the RTC, are
principally for the determination of whether a loan was
obtained by petitioner from private respondent and
whether petitioner executed a real estate mortgage
involving the property. On the other hand, Perjury
involves the determination of whether petitioner
committed perjury in executing an affidavit of loss to
support his request for issuance of a new owners
duplicate copy of the TCT.
Thus, the civil cases and the criminal case can
proceed independently of each other. Regardless of the
outcome of the two civil cases, it will not establish the
innocence or guilt of the petitioner in the criminal case
for perjury. The purchase by petitioner of the land or his
execution of a real estate mortgage will have no bearing
whatsoever on whether petitioner knowingly and
fraudulently executed a false affidavit of loss of the TCT.
In coming up with the decision the SC took into
consideration Sections 6 and 7, Rule 111 of the Revised
Rules of Court, which read:
Sec. 6. Suspension by reason of
prejudicial question. A petition for suspension of
the criminal action based upon the pendency of a
prejudicial question in a civil action may be filed
in the office of the prosecutor or the court
conducting the preliminary investigation. When
the criminal action has been filed in court for trial,
the petition to suspend shall be filed in the same
criminal action at any time before the prosecution
rests.
Sec. 7. Elements of prejudicial question.
The elements of a prejudicial question are: (a) the
previously instituted civil action involves an issue
similar or intimately related to the issue raised in
the subsequent criminal action; and (b) the
resolution of such issue determines whether or
not the criminal action may proceed.
The rationale behind the principle of
suspending a criminal case in view of a prejudicial
question is to avoid two conflicting decisions.

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A prejudicial question is defined as that which

arises in a case the resolution of which is a logical
antecedent of the issue involved therein, and the
cognizance
of
which
pertains
to
another
tribunal. The prejudicial
question must
be
determinative of the case before the court but the
jurisdiction to try and resolve the question must be
lodged in another court or tribunal. It is a question
based on a fact distinct and separate from the crime but
so intimately connected with it that it determines the
guilt or innocence of the accused.
For a prejudicial question in a civil case to
suspend criminal action, it must appear not only that
said case involves facts intimately related to those upon
which the criminal prosecution would be based but also
that in the resolution of the issue or issues raised in the
civil case, the guilt or innocence of the accused would
necessarily be determined.
Thus,
for
a
civil
action
to
be
considered prejudicial to a criminal case as to cause the
suspension of the criminal proceedings until the final
resolution of the civil case, the following requisites must
be present: (1) the civil case involves facts intimately
related to those upon which the criminal
prosecution would be based; (2) in the resolution of
the issue or issues raised in the civil action, the guilt
or innocence of the accused would necessarily be
determined; and (3) jurisdiction to try said question
must be lodged in another tribunal.
If the resolution of the issue in the civil action
will not determine the criminal responsibility of the
accused in the criminal action based on the same facts,
or there is no necessity that the civil case be determined
first before taking up the criminal case, therefore, the
civil
case
does
not
involve
a prejudicial
question. Neither is there a prejudicial question if the
civil and the criminal action can, according to law,
proceed independently of each other.
However, the court in which an action is
pending may, in the exercise of sound discretion, and
upon proper application for a stay of that action, hold
the action in abeyance to abide by the outcome of
another case pending in another court, especially where
the parties and the issues are the same, for there is
power inherent in every court to control the disposition
of cases on its dockets with economy of time and effort
for itself, for counsel, and for litigants. Where the rights
of parties to the second action cannot be properly
determined until the questions raised in the first action
are settled, the second action should be stayed.
The power to stay proceedings is incidental to
the power inherent in every court to control the
disposition of the cases on its dockets, considering its
time and effort, those of counsel and the litigants. But if
proceedings must be stayed, it must be done in order to

avoid multiplicity of suits and prevent vexatious

litigations, conflicting judgments, confusion between
litigants and courts. It bears stressing that whether or
not the trial court would suspend the proceedings in the
criminal case before it is submitted to its sound
discretion.
As stated, the determination of whether the
proceedings may be suspended on the basis of a
prejudicial question rests on whether the facts and
issues raised in the pleadings in the civil cases are so
related with the issues raised in the criminal case such
that the resolution of the issues in the civil cases would
also determine the judgment in the criminal case.

PIMENTEL vs. PIMENTEL and People of the

Philippines G.R. No. 172060.
September 13, 2010.
Second Division CARPIO, J.
Prejudicial Question
FACTS:
On 25 October 2004, Private respondent Maria
Chrysantine Pimentel y Lacap filed a criminal action for
frustrated parricide against Petitioner Joselito R.
Pimentel before the RTC Quezon City. On 7 February
2005, petitioner received summons to appear before
the RTC of Antipolo City for the pre-trial and trial of a
civil case for Declaration of Nullity of Marriage under
Section 36 of the Family Code on the ground of
psychological incapacity. Hence, petitioner filed an
urgent motion to suspend the proceedings before the
RTC Quezon City on the ground of the existence of a
prejudicial question. Petitioner asserted that since the
relationship between the offender and the victim is a
key element in parricide, the outcome of civil case
would have a bearing in the criminal case filed against
him before the RTC Quezon City. The RTC Quezon City
held that the pendency of the case before the RTC
Antipolo is not a prejudicial question that warrants the
suspension of the criminal case before it. The CA
dismissed the petition ruling.
ISSUE:
WON the resolution of the action for annulment of
marriage is a prejudicial question that warrants the
suspension of the criminal case for frustrated parricide
against petitioner.
RULING:
No. Annulment of Marriage is not a Prejudicial Question
in Criminal Case for Parricide.
Section 7, Rule 111 of the 2000 Rules on Criminal
Procedure provides: Section 7. Elements of Prejudicial
Question. - The elements of a prejudicial question are:
(a) the previously instituted civil action involves an
issue similar or intimately related to the issue raised in
the subsequent criminal action and (b) the resolution of
such issue determines whether or not the criminal

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action may proceed. The first requirement is that there
must be a prior civil action instituted. The second
requirement is that the issue in the civil action is
determinative of the guilt or innocence of the accused in
the criminal case. In this case, the civil case for
annulment was filed after the filing of the criminal case
for frustrated parricide. As such, the requirement of
Section 7, Rule 111 was not met since the civil action
was filed subsequent to the filing of the criminal action.
Further, the resolution of the civil action is not a
prejudicial question that would warrant the suspension
of the criminal action. While the relationship between
the offender and the victim is a key element in the crime
of parricide, the issue in the annulment of marriage is
not similar or intimately related to the issue in the
criminal case for parricide. The issue in the civil case for
annulment of marriage under Article 36 of the Family
Code is whether petitioner is psychologically
incapacitated to comply with the essential marital
obligations. The issue in parricide is whether the
accused killed the victim. In this case, since petitioner
was charged with frustrated parricide, the issue is
whether he performed all the acts of execution which
would have killed respondent as a consequence but
which, nevertheless, did not produce it by reason of
causes independent of petitioners will. At the time of
the commission of the alleged crime, petitioner and
respondent were married. The subsequent dissolution
of their marriage, in case the petition for declaration of
nullity of marriage is granted, will have no effect on the
alleged crime that was committed at the time of the
subsistence of the marriage. In short, even if the
marriage between petitioner and respondent is
annulled, petitioner could still be held criminally liable
since at the time of the commission of the alleged crime,
he was still married to respondent. Petitioner was amiss
in his reliance on Tenebro v. Court of Appeals that the
judicial declaration of the nullity of a marriage on the
ground of psychological incapacity retroacts to the date
of the celebration of the marriage insofar as the
vinculum between the spouses is concerned x x x. First,
the issue in Tenebro is the effect of the judicial
declaration of nullity of a second or subsequent
marriage on the ground of psychological incapacity on a
criminal liability for bigamy. There was no issue of
prejudicial question in that case. Second, the SC ruled in
Tenebro that there is x x x a recognition written into the
law itself that such a marriage, although void ab initio,
may still produce legal consequences. In fact, the SC
declared in that case that a declaration of the nullity of
the second marriage on the ground of psychological
incapacity is of absolutely no moment insofar as the
States penal laws are concerned.

CITY PROSECUTOR ARMANDO P. ABANADO vs.

JUDGE ABRAHAM A. BAYONA, Presiding Judge,
Municipal Trial Court in Cities, Branch 7, Bacolod
City
A.M. No. MTJ-12-1804
677 SCRA 595
July 30, 2012
PRELIMINARY INVESTIGATION
FACTS: In 2009, complainant Armando P. Abanado (City
Prosecutor) filed an Information before the MTC,
Bacolod City, which was eventually raffled to Branch 7
thereof presided by respondent Judge Abraham A.
Bayona. Bayona required Abando to submit the
following: 1. Copy of the Memorandum of Preliminary
Investigation;2. Resolution of the Investigating
Prosecutor on Record, Prosecutor Dennis S. Jarders
Resolution;3. Memorandum of the transfer of case
assignment from designated Investigating Prosecutor to
the City Prosecutor; and 4. Exhibit to the Court, the
copies of all documents submitted by the complainant
and the respondents therein for comparison,
authentication and completeness of the photocopies
attached to the information.
The City Prosecutor was able to submit numbers 1, 2, 4
and with respect to item 3 thereof, complainant, in a
letter explained that there was no memorandum of
transfer of the case from the investigating prosecutor,
Assistant City Prosecutor Dennis S. Jarder, to him.
Bayona stated that the Jarder Resolution (dismissing
the complaint) was part and parcel of the official
records of the case and, for this reason, must form part
of the records of the preliminary investigation.
The Office of the City Prosecutor again sent a
letterexplaining the impossibility of submitting the
Jarder
Resolution to the court. The respondent
required complainant to explain within five days from
the receipt thereof why he should not be cited for
contempt under Section 3, Rule 71 of the Rules of Court.
Complainant received the aforementioned order and
requested for a ten-day extension to comply with it.
Respondent denied the request of a ten-day extension
and set the hearing for the contempt charges. He
likewise ordered the Clerk of Court to issue a subpoena
duces tecum ad testificandum to ACP Jarder directing
him to testify on the existence of his resolution
dismissing the case entitled People of the Philippines v.
Cresencio Palo, Sr. and to Office of the City Prosecutors
Records Officer Myrna Vaegas to bring the entire
record of the preliminary investigation of the Palo case.
Aggrieved, complainant immediately filed a motion for
inhibition against respondent. Complainant likewise
filed a petition for certiorari with a prayer for the
issuance of a TRO to restrain respondent from
proceeding with the hearing of the contempt
proceedings. Complainants prayer for a TRO and
petition for certiorari was granted by Presiding Judge

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Pepito B. Gellada of the Regional Trial Court, Branch 53,
Bacolod City,holding that:
When a city or provincial prosecutor reverses
the investigating assisting city or provincial
prosecutor, the resolution finding probable
cause replaces the recommendation of the
investigating prosecutor recommending the
dismissal of the case. The result would be that
the resolution of dismissal no longer forms an
integral part of the records of the case. It is no
longer required that the complaint or entire
records of the case during the preliminary
investigation be submitted to and be examined
by the judge.
The rationale behind this practice is that the
rules do not intend to unduly burden trial
judges by requiring them to go over the
complete records of the cases all the time for
the purpose of determining probable cause for
the sole purpose of issuing a warrant of arrest
against the accused. "What is required, rather,
is that the judge must have sufficient
supporting documents (such as the complaint,
affidavits,
counter-affidavits,
sworn
statements of witnesses or transcripts of
stenographic notes, if any) upon which to
make his independent judgment or, at the very
least, upon which to verify the findings of the
prosecutor as to the existence of probable
cause. x x x.
Complainant executed the present administrative
complaint before the Office of the Court Administrator
(OCA. Complainant alleged therein that respondent was
guilty of gross ignorance of the law or procedure, gross
misconduct, and violation of Supreme Court Circular No.
12 dated June 30, 1987. He essentially asserted that
respondent unduly burdened himself by obsessing over
the production of the records of the preliminary
investigation, especially the Jarder Resolution.
Respondent, in his Comment with Counter-Complaint
for Disbarment of Prosecutor Abanado, essentially
reiterated the importance of the Jarder Resolution in
deciding whether to issue a warrant of arrest.
The OCA noted the Gellada Order which held that the
resolution of the city or provincial prosecutor finding
probable cause replaces the recommendation of the
investigating prosecutor. In such case, the resolution
recommending the dismissal is superseded, and no
longer forms an integral part of the records of the case
and it need not be annexed to the information filed in
court. Thus, the OCA held that complainant cannot be
held guilty of contempt.
ISSUE: Whether or not the Jarder Resolution is relevant
for the proper conduct of preliminary investigation in
the abovementioned case.

HELD: No.
The conduct of a preliminary investigation is primarily
an executive function.Thus, the courts must consider
the rules of procedure of the Department of Justice in
conducting preliminary investigations whenever the
actions of a public prosecutor is put in question. An
examination of the 2008 Revised Manual for
Prosecutors of the Department of Justice-National
Prosecution Service31 (DOJ-NPS Manual), therefore, is
necessary.
The pertinent provisions of the DOJ-NPS Manual are as
follows:
J. PREPARATION OF THE RESOLUTION
x xxx
3. Documents
Information

to

be

Attached

to

the

An information that is filed in court shall, as

far as practicable, be accompanied by a copy of
the resolution of the investigating prosecutor,
the complainants affidavit, the sworn
statements of the prosecutions witnesses, the
respondents counter-affidavit and the sworn
statements of his witnesses and such other
evidence as may have been taken into account
in arriving at a determination of the existence
of probable cause.
L. ACTION OF THE CHIEF STATE/REGIONAL
STATE/PROVINCIAL OR CITY PROSECUTOR
ON THE RECOMMENDATORY RESOLUTION
The Chief State/Regional State/Provincial or
City Prosecutor concerned shall act on all
resolutions within a period of thirty (30) days
from receipt thereof, extendible for another
thirty (30) days in cases involving complex
issues and/or heavy workload of the head of
office, by either:
x xxx
3. Reversing the recommendation of the
investigating prosecutor, in which case, the
Chief State/Regional State/Provincial or City
Prosecutor:
a.

may file the corresponding Information in

court (except the Regional State
Prosecutor); or

b.

direct any other state prosecutor or

assistant prosecutor, as the case may be,
to do so.

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In both instances, there is no more need for
the head of office concerned to conduct
another preliminary investigation.
We find that there is nothing in the DOJ-NPS Manual
requiring the removal of a resolution by an investigating
prosecutor recommending the dismissal of a criminal
complaint after it was reversed by the provincial, city or
chief state prosecutor.
Nonetheless, we also note that attaching such a
resolution to an information filed in court is optional
under the aforementioned manual. The DOJ-NPS Manual
states that the resolution of the investigating prosecutor
should be attached to the information only "as far as
practicable."Thus, such attachment is not mandatory or
required under the rules.
In view of the foregoing, the Court finds that respondent
erred in insisting on the production of the Jarder
Resolution when all other pertinent documents
regarding the preliminary investigation have been
submitted to his court, and in going so far as to
motuproprio initiating a proceeding for contempt
against complainant.

RULE 112 PRELIMINARY INVESTIGATION

FENEQUITO vs VERGARA
677 Scra 113
Preliminary Investigation
Facts:
Vergara filed a criminal complaint for falsification of
public documents against petitioners Fenequito et al.
before the City Prosecutor. Finding probable cause, the
City Prosecutor filed an Information for falsification of
public documents against petitioners with the
Metropolitan Trial Court (MeTC) of Manila. Petitioners
Fenequito et al filed a Motion to Dismiss the Case Based
on Absence of Probable Cause. The MeTC issued an
Order dismissing the case on the ground of lack of
probable cause.
Aggrieved, Vergara, with the express conformity of the
public prosecutor, appealed the case to the Regional
Trial Court (RTC) of Manila.The RTC rendered judgment
setting aside the Order of the MeTC and directing the
said court to proceed to trial. Petitioners Fenequito et al
then elevated the case to the CA via a petition for
review.The CA however rendered a resolution
dismissing the petition. It ruled that the Decision of the
RTC is interlocutory in nature and, thus, is not
appealable. Petitioners Fenequito filed a Motion for
Reconsideration, but the CA denied it.

Issue:
(Main issue here is whether the RTCs decision is
interlocutory in nature and thus not appealable. SC said
it is interlocutory in nature) But for purposes of our
discussion, in this case the SC only defined what
probable cause is.
Held.
Probable cause, for the purpose of filing a criminal
information, has been defined as such facts as are
sufficient to engender a well-founded belief that a crime
has been committed and that respondent is probably
guilty thereof. The term does not mean "actual and
positive cause" nor does it import absolute certainty. It
is merely based on opinion and reasonable belief.
Probable cause does not require an inquiry into
whether there is sufficient evidence to procure a
conviction. It is enough that it is believed that the act or
omission complained of constitutes the offense charged.
A finding of probable cause needs only to rest on
evidence showing that, more likely than not, a crime has
been committed by the suspects. It need not be based on
clear and convincing evidence of guilt, not on evidence
establishing guilt beyond reasonable doubt, and
definitely not on evidence establishing absolute
certainty of guilt. In determining probable cause, the
average man weighs facts and circumstances without
resorting to the calibrations of the rules of evidence of
which he has no technical knowledge. He relies on
common sense. What is determined is whether there is
sufficient ground to engender a well-founded belief that
a crime has been committed, and that the accused is
probably guilty thereof and should be held for trial. It
does not require an inquiry as to whether there is
sufficient evidence to secure a conviction.
In the instant case, the Court finds no justification to
depart from the ruling of the RTC that the offense
charged was committed and that herein petitioners are
probably guilty thereof.
BURGUNDY REALTY CORPORATION vs. Reyes
G.R. No. 181021
December 10, 2012
(Probable Cause)
Facts:

Sometime in 1996, Herein private respondent

Josefa "Jing" Reyes offered her services to Petitioner
(BURGUNDY REALTY CORPORATION) to be the latter's
real estate agent in buying parcels of land in Calamba,
Laguna, which are to be developed into a golf course.
She informed petitioner that more or less ten (10) lot
owners are her clients who were willing to sell their
properties. Convinced of her representations, petitioner
released the amount of P23,423,327.50 in her favor to
be used in buying those parcels of land. Reyes, instead
of buying those parcels of land, converted and
misappropriated the money given by petitioner to her

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personal use and benefit. Petitioner sent a formal
demand for Reyes to return the amount of
P23,423,327.50, to no avail despite her receipt of the
said demand. As such, petitioner filed a complaint for
the crime of Estafa against Reyes before the Assistant
City Prosecutor's Office of Makati City.
(Defense) Reyes, while admitting that she
acted as a real estate agent for petitioner, denied having
converted or misappropriated the involved amount of
money. She claimed that the said amount was used
solely for the intended purpose and that it was
petitioner who requested her services in procuring the
lots. According to her, it was upon the petitioner's
prodding that she was constrained to contact her
friends who were also into the real estate business,
including one named Mateo Elejorde. She alleged that
prior to the venture, Mateo Elejorde submitted to her
copies of certificates of title, vicinity plans, cadastral
maps and other identifying marks covering the
properties being offered for sale and that after
validating and confirming the prices as well as the terms
and conditions attendant to the projected sale,
petitioner instructed her to proceed with the release of
the funds. Thus, she paid down payments to the
landowners through Elejorde. Meanwhile, Reyes
received information that her sub-broker Mateo
Elejorde had been depositing the involved money
entrusted to him under his personal account. On March
28, 2000, through a board resolution, petitioner
allegedly authorized Reyes to institute, proceed, pursue
and continue with whatever criminal or civil action
against Mateo Elejorde, or such person to whom she
may have delivered or entrusted the money she had
received in trust from the firm, for the purpose of
recovering such money. Thus, Reyes filed a complaint
for the crime of estafa against Mateo Elejorde.

Its motion for reconsideration having been

denied by the CA in a Resolution dated December 20,
2007, petitioner filed the present petition;
ISSUE: WON CA seriously erred in not finding that the
DOJ Secretary, Raul Gonzalez Capriciously, Arbitrarily
and Whimsically disregarded the evidence on record
showing the (existence) of Probable Cause against
Private Respondent for ESTAFA under Art. 315 (b) of
the RPC.
HELD:
It must be remembered that the finding of
probable cause was made after conducting a
preliminary investigation. A preliminary investigation
constitutes a realistic judicial appraisal of the merits of a
case. Its purpose is to determine whether (a) a crime
has been committed; and (b) whether there is a
probable cause to believe that the accused is guilty
thereof.
The Court need not overemphasize that in a
preliminary investigation, the public prosecutor merely
determines whether there is probable cause or
sufficient ground to engender a well-founded belief that
a crime has been committed, and that the respondent is
probably guilty thereof and should be held for trial. It
does not call for the application of rules and standards
of proof that a judgment of conviction requires after
trial on the merits. The complainant need not present at
this stage proof beyond reasonable doubt. A preliminary
investigation does not require a full and exhaustive
presentation of the parties' evidence. Precisely, there is
a trial to allow the reception of evidence for both parties
to substantiate their respective claims.

Undeterred, Reyes filed a petition for review

before the Department of Justice (DOJ), but it was
dismissed by the Secretary of Justice.

A review of the records would show that the

investigating prosecutor was correct in finding the
existence of all the elements of the crime of estafa.
Reyes did not dispute that she received in trust the
amount of P23,423,327.50 from petitioner as proven by
the checks and vouchers to be used in purchasing the
parcels of land. Petitioner wrote a demand letter for
Reyes to return the same amount but was not heeded.
Hence, the failure of Reyes to deliver the titles or to
return the entrusted money, despite demand and the
duty to do so, constituted prima facie evidence of
misappropriation. PETITION GRANTED.

Aggrieved, Reyes filed a motion for

reconsideration which was later on granted by another
Secretary of Justice, Raul Gonzalez.

HEIRS OF THE LATE NESTOR TRIA vs ATTY.

EPIFANIA OBIAS
G.R. No. 175887 Nov. 24, 2010

Petitioner filed a motion for reconsideration,

but was denied by the Secretary of Justice in a
Resolution dated December 14, 2006. Eventually,
petitioner filed a petition for certiorari under Rule 65 of
the Rules of Court with the CA. The latter, however,
affirmed the questioned Resolutions of the Secretary of
Justice.

WHO MAY CONDUCT P.I.

After a preliminary investigation was

conducted against Reyes, the Assistant Prosecutor of
Makati City recommended that respondent be indicted
of the crime of Estafa defined and penalized under the
Revised Penal Code. Thereafter, an Information for the
crime of Estafa under Article 315, par. 1 (b) of the
Revised Penal Code (RPC) was filed against Reyes.

Read Fucker

FACTS:
On May 22, 1998, at around 10:00 AM at
the Pili Airport in Camarines Sur, Engr. Nestor Tria,
Regional Director of the DPWH, Region V and

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concurrently Officer-In-Charge of the 2nd Engineering
District of Camarines Sur, was shot by a gunman on his
nape while waiting to board his flight to Manila, then
causing his death. The incident was investigated by the
NBI. Eventually, NBI recommended to the Provincial
Prosecutor of Camarines Sur the indictment of Roberto
Obet Aclan y Gulpo, Juanito Totoy Ona y Masalonga and
Atty. Epifania Fanny Gonzales-Obias, for the murder of
Engr. Tria.
During the preliminary investigation conducted
by the Office of the Provincial Prosecutor, respondent
filed her Counter-Affidavit denying involvement in the
killing of Engr. Tria and that the NBI has not
established prima facie the existence of conspiracy as to
implicate her in the death of Engr. Tria.
The Office of the Provincial Prosecutor of
Camarines Sur issued a resolution directing the filing of
an information for murder against Aclan and Ona but
dismissing the case for insufficiency of evidence as
against Atty. Epifania Obias. Petitioners appealed to the
DOJ. On January 25, 2000, then Justice Secretary
Serafin Cuevas issued a Resolution modifying
the resolution of the Provincial Prosecutor and directing
the latter to include respondent in the information for
murder filed against Aclan and Ona. Respondent, Aclan
and Ona filed a MR of the DOJs resolution. The MR was
denied. In the meantime, the information charging
Aclan and Ona has already been filed with the RTC of
Pili, Camarines Sur. Upon request however, the venue
was transferred to the RTC Quezon City. In October
2001, the prosecution filed with the RTC Quezon City a
Motion to Admit Amended Information to include
respondent as one of the accused for the murder of Tria.
Respondent filed a Notice of Appeal with the
DOJ. The DOJ denied it on the ground that pursuant to
Memorandum Circular No. 1266, as amended by
Memorandum Circular No. 58, appeals to the OP
where the penalty prescribed for the offense
charged is reclusion perpetua to death, shall be
taken by petition for review. Respondent filed a MR
but the same was denied. The DOJ opined that the proper
procedure is the filing of an appeal or petition for
review with the OP and not before the DOJ. Hence, the
case was considered closed and terminated. Respondent
later on filed a notice of appeal before the OP.
On January 28, 2002, the RTC QC issued an
order admitting the amended information which
includes respondent. The latter then filed with the RTC a
MR with Prayer for the Suspension of the Issuance of a
Warrant of Arrest.
In his Order dated March 24, 2004,
Presidential Assistant Manuel C. Domingo granted
respondents motion for reconsideration and
reversed the DOJ resolutions. The OP concluded that
there was no interlocking circumstantial evidence of
respondents acts before, during and after the killing of

Engr. Tria that would establish conspiracy among Aclan,

Ona and respondent to commit the crime. Accordingly,
the case against respondent was dismissed for
insufficiency of evidence. Petitioners filed a MR which
was denied by the OP. Before the CA, petitioners filed a
petition for mandamus/certiorari under Rule 65. CA
denied the petition. Hence, this petition.
ISSUE: Whether the non-referral by the OP to the DOJ of
the motion for reconsideration of respondent, in the
exercise of its discretion, violated petitioners right to
due process. No.
HELD:
Petitioners argument that the non-referral by
the OP to the DOJ of the appeal or motion for
reconsideration filed by the respondent had deprived
them of the opportunity to confront and cross-examine
the witnesses on those affidavits belatedly submitted by
the respondent is untenable. Under the procedure for
preliminary investigation provided in Section 3, Rule
112 of the Revised Rules of Criminal Procedure, as
amended, in case the investigating prosecutor
conducts a hearing where there are facts and issues to
be clarified from a party or witness, [t]he parties can be
present at the hearing but without the right to examine
or cross-examine. They may, however, submit to the
investigating officer questions which may be asked to
the party or witness concerned. Hence, the non-referral
by the OP to the DOJ of the motion for reconsideration
of respondent, in the exercise of its discretion, did not
violate petitioners right to due process.
We reverse the OPs ruling that the totality of
evidence failed to establish a prima facie case against
the respondent as a conspirator in the killing of Engr.
Tria. To begin with, whether or not respondent actually
conspired with Aclan and Ona need not be fully resolved
during the preliminary investigation. The absence or
presence of conspiracy is factual in nature and involves
evidentiary matters. The same is better left ventilated
before the trial court during trial, where the parties can
adduce evidence to prove or disprove its presence.
Preliminary investigation is executive in
character. It does not contemplate a judicial function. It
is essentially an inquisitorial proceeding, and often, the
only means of ascertaining who may be reasonably
charged with a crime. Prosecutors control and direct
the prosecution of criminal offenses, including the
conduct of preliminary investigation, subject to
review by the Secretary of Justice. The duty of the
Court in appropriate cases is merely to determine
whether the executive determination was done without
or in excess of jurisdiction or with grave abuse of
discretion. Resolutions of the Secretary of Justice are
not subject to review unless made with grave abuse. We
find no such grave abuse when the Secretary of Justice
found probable cause to charge the respondent with
murder in conspiracy with Aclan and Ona.

AGUIRRE, ALMIRANTE, BAARES, CABREROS, FLORES, JABINES, MORES, ORTEGA, SALGADO, QUINTO,
VILLAMIN, VERGARA-HUERTA

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GERLIE M. UY and MA. CONSOLACION T. BASCUG,

complainants, vs. JUDGE ERWIN B. JAVELLANA,
MUNICIPAL TRIAL COURT, LA CASTELLANA, NEGROS
OCCIDENTAL, respondent.
A.M. No. MTJ-07-1666. September 5, 2012.*
(Formerly A.M. OCA I.P.I. No. 05-1761-MTJ)
The Revised Rule on Summary Procedure does not
provide for a preliminary investigation prior to the filing
of a criminal case under said Rule. A criminal case within
the scope of the Rule shall be commenced in the following
manner: SEC. 11. How commenced.The filing of criminal
cases falling within the scope of this Rule shall be either
by complaint or by information; Provided, however, That
in Metropolitan Manila and in Chartered Cities, such
cases shall be commenced only by information, except
when the offense cannot be prosecuted de oficio. The
complaint or information shall be accompanied by the
affidavits of the complainant and of his witnesses in such
number of copies as there are accused plus two (2) copies
for the courts files. If this requirement is not complied
with within five (5) days from date of filing, the case may
be dismissed.
Facts:
This administrative case arose from a verified
complaint1 for gross ignorance of the law and
procedures, gross incompetence, neglect of duty,
conduct improper and unbecoming of a judge, grave
misconduct and others, filed by . Atty. Uy and
Atty.bBascug of the Public Attorneys Office against
Presiding Judge Erwin B. Javellana of the Municipal Trial
Court (MTC), La Castellana, Negros Occidental.
Public Attorneys Uy and Bascug alleged the following in
their complaint among others:
First, Judge Javellana was grossly ignorant of the
Revised Rule on Summary Procedure.
(a) In Crim. entitled People v. Cornelio, for Malicious
Mischief, Judge Javellana issued a warrant of arrest after
the filing of said case despite Section 16 of the Revised
Rule on Summary Procedure;
(b) In Crim. , entitled People v. Celeste, et al., for
Trespass to Dwelling, Judge Javellana did not grant the
motion to dismiss for non-compliance with the Lupon
requirement under Sections 18 and 19(a) of the Revised
Rule on Summary Procedure, insisting that said motion
was a prohibited pleading;
(c) In Crim. entitled People v. Lopez, et al., for Malicious
Mischief, Judge Javellana did not apply the Revised Rule
on Summary Procedure and, instead, conducted a
preliminary examination and preliminary investigation
in accordance with the Revised Rules of Criminal
Procedure, then set the case for arraignment and pretrial, despite confirming that therein complainant and
her witnesses had no personal knowledge of the
material facts alleged in their affidavits, which should
have been a ground for dismissal of said case.
Judge Javellana asserted that he was not grossly
ignorant of the rules of procedure and explained his
actions in particular cases:

(a) In People v. Cornelio, Judge Javellana issued a

warrant of arrest for the two accused charged with
Malicious Mischief in the exercise of his judicial
discretion, and the necessity of holding the accused in
detention became evident when it was revealed during
trial that the same accused were wanted for Attempted
Homicide in Crim. Case No. 04-096;
(b) In People v. Celeste, et al., Judge Javellana insisted
that referral of the dispute (involving an alleged
Trespass to Dwelling) to the Lupong Tagapamayapa
was not a jurisdictional requirement and the Motion to
Dismiss on said ground was a prohibited pleading under
the Revised Rule on Summary Procedure;
(c) In People v. Lopez, et al. another case for Malicious
Mischief, Judge Javellana reiterated that a motion to
dismiss is a prohibited pleading under the Revised Rule
on Summary Procedure and added that he could not
dismiss the case outright since the prosecution has not
yet fully presented its evidence.
The Office of the Court Administrator (OCA), in its
report dated January 2, 2006, found Judge Javellana
liable for gross ignorance of the law or procedure when
he did not apply the Revised Rule on Summary
Procedure in cases appropriately covered by said Rule.
Issues: 1.WON the judge was correct in issuing a
warrant of arrest against the accused charged with
malicious mischief?
2. WON referral to Lupon is jurisdictional
3. WON preliminary investigation is required in
Summary Procedure cases?
Held:
1. No. The crime of malicious mischief is committed by
any person who deliberately causes damage to the
property of another through means not constituting
arson. There are special cases of malicious mischief
which are specifically covered by Article 328 of the
Revised Penal Code. Without any showing that the
accused in People v. Cornelio and People v. Lopez, et al.
were charged with the special cases of malicious
mischief particularly described in Article 328 of the
Revised Penal Code, then Article 329 of the same Code
should be applied. If the amounts of the alleged damage
to property in People v. Cornelio and People v. Lopez, et
al., P6,000.00 and P3,000.00, respectively, are proven,
the appropriate penalty for the accused would be
arresto mayor in its medium and maximum periods
which under Article 329(a) of the Revised Penal Code,
would be imprisonment for two (2) months and one (1)
day to six (6) months. Clearly, these two cases should be
governed by the Revised Rule on Summary Procedure.
Judge Javellanas issuance of a Warrant of Arrest for the
accused in People v. Cornelio is in violation of Section
16 of the Revised Rule on Summary Procedure,
categorically stating that [t]he court shall not order
the arrest of the accused except for failure to appear
whenever required. Judge Javellana never claimed
that the accused failed to appear at any hearing. His
justification that the accused was wanted for the crime
of attempted homicide, being tried in another case, is

AGUIRRE, ALMIRANTE, BAARES, CABREROS, FLORES, JABINES, MORES, ORTEGA, SALGADO, QUINTO,
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totally unacceptable and further indicative of his
ignorance of law. People v. Cornelio, pending before
Judge Javellanas court as Crim. Case No. 04-097, is for
malicious mischief, and is distinct and separate from
Crim. Case No. 04-096, which is for attempted homicide,
although both cases involved the same accused.
Proceedings in one case, such as the issuance of a
warrant of arrest, should not be extended or made
applicable to the other.
2. Yes. Judge Javellana committed a blatant error in
denying the Motion to Dismiss filed by the accused in
People v. Celeste, et al. and in insisting that said Motion
was a prohibited pleading, even though the case was
never previously referred to the Lupong Tagapamayapa
as required by Sections 18 and 19(a) of the Revised
Rule on Summary Procedure.
The pertinent provisions of the Revised Rule on
Summary Procedure read:
Sec. 18. Referral to Lupon.Cases requiring referral
to the Lupon for conciliation under the provisions of
Presidential Decree No. 1508 where there is no showing
of compliance with such requirement, shall be
dismissed without prejudice, and may be revived only
after such requirement shall have been complied with.
This provision shall not apply to criminal cases where
the accused was arrested without a warrant.
Sec. 19. Prohibited pleadings and motions.The
following pleadings, motions, or petitions shall not be
allowed in the cases covered by this Rule:
(a) Motion to dismiss the complaint or to quash
the complaint or information except on the ground
of lack of jurisdiction over the subject matter, or
failure to comply with the preceding section.
We see no ambiguity in the aforequoted provisions. A
case which has not been previously referred to the
Lupong Taga pamayapa shall be dismissed without
prejudice. A motion to dismiss on the ground of failure
to comply with the Lupon requirement is an exception
to the pleadings prohibited by the Revised Rule on
Summary Procedure. Given the express provisions of
the Revised Rule on Summary Procedure, we find
irrelevant Judge Javellanas argument that referral to
the Lupon is not a jurisdictional requirement.
3. No. The Revised Rule on Summary Procedure does
not provide for a preliminary investigation prior to the
filing of a criminal case under said Rule. A criminal case
within the scope of the Rule shall be commenced in the
following manner:
SEC. 11. How commenced.The filing of criminal
cases falling within the scope of this Rule shall be either
by complaint or by information; Provided, however,
That in Metropolitan Manila and in Chartered Cities,
such cases shall be commenced only by information,
except when the offense cannot be prosecuted de
oficio.
The complaint or information shall be accompanied by
the affidavits of the complainant and of his witnesses in
such number of copies as there are accused plus two (2)
copies for the courts files. If this requirement is not
complied with within five (5) days from date of filing,
the case may be dismissed.

SEC. 12. Duty of Court.

(a) If commenced by complaint.On the basis of the
complaint and the affidavits and other evidence
accompanying the same, the court may dismiss the case
outright for being patently without basis or merit and
order the release of the accused if in custody.
(b) If commenced by information.When the case is
commenced by information, or is not dismissed
pursuant to the next preceding paragraph, the court
shall issue an order which, together with copies of the
affidavits and other evidence submitted by the
prosecution, shall require the accused to submit his
counter-affidavit and the affidavits of his witnesses as
well as any evidence in his behalf, serving copies thereof
on the complainant or prosecutor not later than ten
(10) days from receipt of said order. The prosecution
may file reply affidavits within ten (10) days after
receipt of the counter-affidavits of the defense.
Section 1, Rule 112 of the Revised Rules of Criminal
Procedure only requires that a preliminary
investigation be conducted before the filing of a
complaint or information for an offense where the
penalty prescribed by law is at least four (4) years, two
(2) months and one (1) day without regard to the fine.
As has been previously established herein, the
maximum penalty imposable for malicious mischief in
People v. Lopez, et al. is just six (6) months.
Judge Javellana did not provide any reason as to why he
needed to conduct a preliminary investigation in People
v. Lopez, et al. We stress that the Revised Rule on
Summary Procedure was precisely adopted to promote
a more expeditious and inexpensive determination of
cases, and to enforce the constitutional rights of
litigants to the speedy disposition of cases. Judge
Javellana cannot be allowed to arbitrarily conduct
proceedings beyond those specifically laid down by the
Revised Rule on Summary Procedure, thereby
lengthening or delaying the resolution of the case, and
defeating the express purpose of said Rule.
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v.
ALEJANDRO C. VALENCIA, Accused-Appellant.
G.R. Nos. 94511-13
September 18, 1992

Facts:
Arlyn Barredo-Jimenez, her two children,
Annabelle and Samuel, Jr., aged five and three,
respectively, and her mother, are residents of 2008 F.
Muoz St., Paco, Manila. At about 9:00 p.m. of March 19,
1989, as she was about to eat supper, she noticed
Alejandro standing five steps away from the open door
of her house and holding a sumpak, a homemade
shotgun. Seized with fear, she closed the door. After a
few moments, she heard a burst of gunfire. This was
followed by cries of pain from her children inside the
house. Seeing her children bloodied, she immediately
went outside and shouted for help. As she did so, she
saw appellant running away, carrying the sumpak. Two

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neighbors assisted Jimenez in bringing the injured
children to the Philippine General Hospital.
Early next morning, the three policemen were
led by Rolando Valencia to the residence of Sonia
Castillo, Alejandros aunt, where he believed was
sleeping. The police apprehended appellant there and
took him to the Ong Detachment for initial investigation
He was indorsed to the police headquarters for further
investigation in the evening of March 22, 1989. At 12:20
a.m. of the following day, one of the injured children,
Annabelle, died as a result of the gunshot wounds she
suffered. The other child, Samuel Jr., who was shot in
the right forearm, was discharged from the hospital one
week after the incident, but needed two (2) more weeks
for healing. On March 30, 1989, two Informations for
Homicide and Frustrated Homicide, were filed against
Alejandro Valencia. When arraigned, the accusedappellant pleaded "Not Guilty." Trial then proceeded
resulting in accused-appellants conviction as above
stated.
On appeal, Accused-appellant raised as errors
of the trial court, among others in finding that the
prosecution was able to prove the guilt of the
defendant-appellant beyond reasonable doubt in spite
of the fact that there was allegedly no preliminary
investigation, and that no sufficient evidence exists
proving his guilt.
ISSUE: Whether or not the accused was unlawfully
denied of preliminary investigation.
HELD:
A person who is lawfully arrested, without a warrant
pursuant to paragraph 1(b), Section 5, Rule 113, Rules
of Court 23 should be delivered to the nearest police
station and proceeded against in accordance with Rule
112, Section 7. 24 Under said Section 7, Rule 112, the
prosecuting officer can file the Information in court
without a preliminary investigation, which was done in
the accused-appellants case.
Since the records do not show whether the accusedappellant asked for a preliminary investigation after the
case had been filed in court, as in fact, the accusedappellant signified his readiness to be arraigned, the
Court can only conclude that he waived his right to have
a preliminary investigation, when he did, in fact,
pleaded "Not Guilty" upon his arraignment.

AGUIRRE, ALMIRANTE, BAARES, CABREROS, FLORES, JABINES, MORES, ORTEGA, SALGADO, QUINTO,
VILLAMIN, VERGARA-HUERTA