EN BANC

[G.R. No. 111399. September 27, 1996]

ODON PECHO, petitioner, vs. PEOPLE OF THE PHILIPPINES and the

SANDIGANBAYAN, respondents.

RESOLUTION
DAVIDE, JR., J.:

In our decision of 14 November 1994, we modified the appealed judgment

of the Sandiganbayan in Criminal Case No. 14844 by holding the petitioner
guilty of the complex crime of attempted estafa through falsification of official
and commercial documents, and sentencing him to suffer an indeterminate
penalty ranging from two (2) years, four (4) months, and one (1) day of prision
correccional as minimum to ten (10) years and one (1) day of prision mayor as
maximum and to pay a fine of Two Thousand Pesos (P2,000.00).
In short, we held that although the petitioner could not be convicted of the
crime charged, viz., violation of Section 3(e) of R.A. No. 3019, as amended --
because the said section penalizes only consummated offenses and the
offense charged in this case was not consummated -- he could, nevertheless,
be convicted of the complex crime of attempted estafa through falsification of
official and commercial documents, which is necessarily included in the crime
charged.
Unable to accept our verdict, the petitioner seasonably filed a motion for
reconsideration on the ground that after having been acquitted of the violation
of Section 3(e) of R.A. No. 3019, a special law, he could not be convicted
anymore of attempted estafa through falsification of official and commercial
documents, an offense punishable under the Revised Penal Code, a general
law; otherwise, the constitutional provision on double jeopardy would be
violated. In other words, his acquittal of the crime charged precludes conviction
for the complex crime of attempted estafa through falsification of official and
commercial documents, because both offenses arose from the same overt act
as alleged in the information in Criminal Case No. 14844.
In its Comment on the motion for reconsideration signed only by Assistant
Solicitor General Romeo C. de la Cruz and Solicitor Josette Sonia Holgado-
Marcilla, the Office of the Solicitor General disagrees with the petitioner and
asserts that the rule on double jeopardy cannot be successfully invoked in this
case considering that no new information for estafa through falsification of
public document was filed against the petitioner; only one information was filed
against him and his co-accused. For double jeopardy to exist, there must be
such new information and the accused must be able to show that (1) he has
been previously brought to trial, (2) in a court of competent jurisdiction, (3) upon
a valid complaint or information sufficient in form and substance, (4) for the
same offense or an attempt to or frustration thereof as that charged in the new
information, and that (5) the case has been dismissed or terminated without his
consent or after he had pleaded to the information but before judgment was
rendered.[1]
Nevertheless, the Office of the Solicitor General joins the petitioner in the
latters plea for his acquittal, but for another ground, namely, insufficiency of
evidence.
In the resolution of 22 August 1995, we directed the Solicitor General to
inform the Court whether he agrees with the recommendation of Assistant
Solicitor General De la Cruz and Solicitor Holgado-Marcilla. In his Manifestation
of 14 September 1995, the Solicitor General not only expressed full agreement
with the said recommendation, but even added the following observations:
10. After reading the Courts Decision, the Solicitor General has noted that petitioners
conviction is based on circumstantial evidence.
11. The law and a host of the Courts ruling declare that circumstantial evidence is
sufficient for conviction if the following conditions concur:

(1) There is more that one circumstance;

(2) The facts from which the inferences are derived are proven; and

(3) The combination of all the circumstances is such as to produce a conviction

beyond reasonable doubt (Section 3, Rule 133, Rules of Court).

12. In this case, it should be stressed that the inference that petitioner falsified
documents appears to be based on another inference, i.e., that he was in possession
of the same because he accompanied his co-accused Catre in the
transactions. However, other than accompanying Catre, there is no evidence on
record that petitioner had custody of the falsified documents.
13. As to the conspiracy angle, there is likewise no showing that petitioner interceded for
Catre. In fact, it was Catre who talked to Calica. (p. 19-20, TSN, August 26, 1991)
Neither was it shown that petitioner had a hand in the processing of the import entry
declaration for the release of the shipment from the Bureau of Customs. It was not
also proven that he was instrumental in the approval of the import entry declaration.
 14. The elements of conspiracy, like the physical acts constituting the crime itself, must
be proven beyond reasonable doubt. (People vs. Manuel, 234 SCRA 532). To hold
an accused guilty as co-principal by reason of conspiracy, it must be shown that he
performed an overt act in pursuance or furtherance of the conspiracy. (People
vs. Roxas, 241 SCRA 369). In this regard, it is respectfully submitted that there is no
overt act conclusively attributable to petitioner which would pin him down as a co-
conspirator.
15. Thus, it is the inexorable duty of the Solicitor General to recommend petitioners
acquittal, as he so recommends, inasmuch as the People was not able to adduce
evidence sufficient to overcome the constitutional presumption of petitioners
innocence.

We then required the parties to submit their respective memoranda on the

following issues:
(a) the sufficiency of the evidence for the complex crime of attempted estafa through
falsification of public and commercial documents, and
(b) the validity of the conviction therefor under an information for the violation of Section
3(e) of R.A. No. 3019, as amended, vis-a-vis the constitutional right of the accused to
be informed of the nature and cause of the accusation against him.

In their respective memoranda, the petitioner and the Office of the Solicitor
General are one in asserting that the petitioner could not be convicted based
entirely on circumstantial evidence because of the failure of the prosecution to
satisfy the requisites set forth in Section 4, Rule 133 of the Rules of Court,
namely, (a) there is more than one circumstance; (b) the facts from which the
inferences are derived are proven; and (c) the combination of all the
circumstances is such as to produce a conviction beyond reasonable
doubt. The petitioner further cited portions of the transcripts of the stenographic
notes of the testimony of Customs Broker Constantino Calica which prove that
it was Catre alone who made the introduction to Calica that they were agents
of Eversun Commercial Trading, and that it was Catre who did all the talking
and directly transacted with Calica regarding the terms and conditions of the
particular engagement and who actually delivered the documents to him. There
is no evidence that the petitioner had a hand in the processing of the import
entry declaration for the release of the shipment from the Bureau of Customs
or was instrumental in the approval of the import entry declaration. Thus:
Q Now, did Mr. Odon Pecho actually engage your services?
A They are two, sir, Mr. Joe Catre and Mr. Odon Pecho.
Q Who actually transacted with you with regards to your services, is it Mr. Catre or Mr.
Pecho?
A Mr. Joe Catre, sir.
Q So it was Joe Catre?
A Yes, sir.
Q And not Odon Pecho, is that right?
A Well, he is the companion of Mr. Catre and they introduced themselves to me that they are
the authorized representative of the importer.
Q That is right. Who introduced to you?
A Mr. Catre was the one who talks [sic] to me, sir.
Q But in your testimony, the person who delivered to you the documents, the bill of lading,
the commercial invoices, the packing list, the importers sworn statement, etc. which was
made the basis of the, of your preparation for the processing of the import entry, who
delivered to you these documents that you mentioned?
A Mr. Catre, sir.
Q And who talked to you about the terms and conditions of this engagement or contracts?
A Mr. Catre, sir.
Q And not Mr. Odon Pecho?
A Yes, sir.
Q Who actually delivered to you the documents, Mr. Catre or Mr. Pecho?
A It was Mr. Catre, sir, he was the one handling the case.
AJ ESCAREAL
Q [To] Whom did you talk first?
A Mr. Catre, Your Honor, he was the one handling the case, the documents, Your Honor.
Q Do you know how they introduced themselves to you?
A That is the only thing that I remember Your Honor that they came to my office and told me
that they are the importers representatives and that they are engaging my services.
Q Who said that?
A Mr. Catre, Your Honor.
Q How about Mr. Pecho?
A No, Your Honor.
Q Did he say anything?
A At that time your Honor, it was Mr. Catre who was doing that talking.
Q Did Mr. Catre give his name to you?
A Yes, Your Honor.
Q How did he introduce himself?
A That he is Mr. Joe Catre, Your Honor.
Q How about his companion, did his companion introduce himself to you or he was
introduced by Mr. Catre to you?
 A He did not introduce himself to me Your Honor.
Q So during that meeting you do not know that the name of the companion of Mr. Catre is
Odon Pecho.
A Yes, your Honor.
Q And how did your son attend to it?
A Two days after Your Honor, Mr. Catre called our office to assist and help them in the
preparation of the cargo at the arrastre operator because that is usually being done by
the broker when the shipment goes for examination. (t.s.n., Hearing of August 26, 1991)
As to the second issue, the Office of the Solicitor General rejects the theory
of the petitioner and submits that the information in this case contains the
essential ingredients of estafa through falsification of public and commercial
documents; therefore, assuming there is sufficient evidence, the petitioner
could be convicted of the complex crime of attempted estafa through
falsification of public and commercial documents without violating Section
14(2), Article III of the Constitution on the right of the accused to be informed of
the nature and cause of the accusation against him.
I

We shall first take up the second issue since it involves a constitutional right
of the accused.
On the assumption that the prosecutions evidence had satisfied the
quantum of proof for conviction for the complex crime of attempted estafa
through falsification of public and commercial documents, there is absolutely no
merit in the petitioners claim that he could not be convicted of the said crime
without offending his right to be informed of the nature and cause of the
accusation against him, which is guaranteed by the Bill of Rights.[2] Such right,
an ancient bulwark of the liberties of men, has its origin in the Bill of Rights
which the people of Great Britain demanded and received from the Prince and
Princess of Orange on 13 February 1688. It was adopted by the Constitution of
the United States and was extended to the Philippinesby Act No. 235, or the
Philippine Bill of 1902.[3] It was later carried into the Jones Law and, ultimately,
enshrined in the Constitutions of 1935, 1973, and 1987. It has the following
objectives:

First. To furnish the accused with such a description of the charge against him as
will enable him to make his defense; second, to avail himself of his conviction or
acquittal for protection against a further prosecution for the same cause; and third,
to inform the court of the facts alleged, so that it may decide whether they are
sufficient in law to support a conviction, if one should be had (United States
vs.Cruikshank, 92 U.S. 542). In order that this requirement may be satisfied, facts
 must be stated; not conclusions of law. Every crime is made up of certain acts and
intent; these must be set forth in the complaint with reasonable particularity of
time, place, names (plaintiff or defendant), and circumstances. In short, the
complaint must contain a specific allegation of every fact and circumstance
necessary to constitute the crime charged.[4]

Conformably therewith, the Rules of Court has prescribed the appropriate

rules.[5]
What determines the real nature and cause of accusation against an
accused is the actual recital of facts stated in the information or complaint and
not the caption or preamble of the information or complaint nor the specification
of the provision of law alleged to have been violated, they being conclusions of
law.[6] An incorrect caption is not a fatal mistake. [7]
It follows then that an accused may be convicted of a crime which, although
not the one charged, is necessarily included in the latter. Section 4, Rule 120
of the Rules of Court thus provides:

SEC. 4. Judgment in case of variance between allegation and proof. -- When there is
variance between the offense charged in the complaint or information, and that proved
or established by the evidence, and the offense as charged is included in or necessarily
includes the offense proved, the accused shall be convicted of the offense proved
included in that which is charged, or of the offense charged included in that which is
proved.

The succeeding Section 5 prescribes the rule in determining when an

offense includes or is included in another. We have shown in the challenged
decision why the complex crime of attempted estafa through falsification of
public and commercial documents is included in the offense
charged. Moreover, we held that the information in this case can also be
considered as charging two offenses: the violation of Section 3(e) of R.A. No.
3019 and the complex crime of attempted estafa through falsification of official
and commercial documents, and since the petitioner failed to object before trial
to such duplicity,[8] he could be validly convicted of both or either of the offenses
charged and proved.[9]
II

We shall now turn to the first issue: whether the evidence adduced by the
prosecution had established beyond reasonable doubt the guilt of the petitioner
for the complex crime of attempted estafa through falsification of public and
commercial documents. In light of the consistent and persistent negative stance
of the Office of the Solicitor General, personally confirmed and reinforced by
the Solicitor General in his separate Manifestation, we re-evaluated the
evidence.
In our decision of 14 November 1994, we based the conviction of the
petitioner on conspiracy.
The question that logically crops up then is not whether the combination of
the circumstantial evidence proved in this case against the petitioner had
established beyond reasonable doubt that he is guilty of the complex crime of
attempted estafa through falsification of public and commercial documents, as
asseverated by him and the public respondent. Rather, the question is whether
the prosecution had discharged its duty to establish conspiracy between the
petitioner and Catre.
The information[10] charges the petitioner and his co-accused Joe Catre as
principals[11] who conspir[ed], confabulat[ed], conniv[ed], confederat[ed], and
mutually help[ed] one another, with Catre representing himself to be a
representative of Eversun Commercial Trading of Cotabato City, a corporation,
firm or partnership which turned out to be non-existent, fake or fictitious. The
evidence for the prosecution, as admitted by the respondent, only showed that
it was Catre who possessed the falsified documents, contracted the services of
Calica, and delivered the documents to the latter for processing. In the absence
of satisfactory explanation, Catre, being the one in possession of the forged
documents, is presumed to be the forger.[12] Catre, however, could not provide
the explanation because only the petitioner was tried. The information states
that his address is unknown, and the record does not show that a warrant for
his arrest was issued. The only warrant of arrest that was issued was that for
the petitioner.[13] Assuming that such evidence and the others adduced by the
prosecution are to be admitted to prove the commission of the crime, a prima
facie case enough to prove the guilt of Catre with moral certainty was duly
established against Catre as a principal. Accordingly, if conspiracy were
proven, the petitioner would be equally guilty of the offense proved. For, in a
conspiracy, every act of one of the conspirators in furtherance of a common
design or purpose of such a conspiracy is, in contemplation of law, the act of
each of them.[14]
There is conspiracy when two or more persons come to an agreement
concerning the commission of a felony and decide to commit it. [15] Direct proof
of previous agreement to commit a crime is not necessary. Conspiracy may be
deduced from the mode and manner in which the offense was perpetrated, or
inferred from the acts of the accused themselves when such point to a joint
purpose and design, concerted action, and community of interest.[16] It is,
however, settled that the same degree of proof required for establishing the
crime is likewise required to support a finding of conspiracy. In other words,
conspiracy must be shown to exist as clearly and as convincingly as the
commission of the offense itself in order to uphold the fundamental principle
that no one shall be found guilty of a crime except upon proof beyond
reasonable doubt.[17]
It is also essential for one to be a party to a conspiracy as to be liable for
the acts of the others that there be intentional participation in the transaction
with a view to the furtherance of the common design. [18] Except when he is the
mastermind in a conspiracy, it is necessary that a conspirator should have
performed some overt act as a direct or indirect contribution in the execution of
the crime planned to be committed. [19] The overt act may consist of active
participation in the actual commission of the crime itself, or it may consist of
moral assistance to his co-conspirators by being present at the commission of
the crime or by exerting moral ascendancy over the other co-conspirators.[20]
Since conspiracy must be established by proof beyond reasonable doubt,
then the next inquiry would be whether the prosecution was able to adduce
such proof against the petitioner. It is in this respect that we agree with the
People and the petitioner that the prosecution had only circumstantial evidence
against the petitioner.
Under Section 4, Rule 133 of the Rules of Court, circumstantial evidence
would be sufficient to convict if (a) there is more than one circumstance; (b) the
facts from which the inferences are derived are proven; and (c) the combination
of all the circumstances is such as to produce a conviction beyond reasonable
doubt. As jurisprudentially formulated, a judgment of conviction based on
circumstantial evidence can be upheld only if the circumstances proven
constitute an unbroken chain which leads to one fair and reasonable conclusion
pointing to the accused, to the exclusion of all others, as the guilty person, i.e.,
the circumstances proven must be consistent with each other, consistent with
the hypothesis that the accused is guilty, and at the same time inconsistent with
any other hypothesis except that of guilty. [21]
In the instant case, all that the prosecution was able to prove insofar as the
petitioner is concerned is that he and co-accused Catre are from Surigao del
Norte; that he accompanied Catre in contracting the services of customs broker
Constantino Calica; and that he also was with Catre when the latter went with
Dennis Calica, son of Constantino Calica, to the Manila International Container
Port. In all these instances, however, it was Catre who transacted the business
and did all the talking. As a matter of fact, the petitioner was not even introduced
to Calica. As recapitulated by the Office of the Solicitor General in its
Memorandum:
 [T]here is no evidence that petitioner interceded for Catre. Prosecution witness
Calica testified that it was Catre and not petitioner, who introduced themselves as
agents of Eversun Commercial Trading.He also testified that it was Catre who did
all the talking and directly transacted with him (Calica) regarding the terms and
conditions of the particular engagement and it was also Catre, and not petitioner,
who actually delivered the documents to him (tsn, August 26, 1991). There is no
evidence that petitioner had a hand in the processing of the import entry
declaration for the release of the shipment from the Bureau of Customs. There is
also no evidence that petitioner was instrumental in the approval of the import
entry declaration. In short, there is no showing that petitioner performed an overt
act in furtherance of alleged conspiracy.[22]

The evidence for the prosecution likewise failed to prove that the petitioner
(1) personally represented himself as an agent of Eversun Commercial Trading;
(2) knew of the falsity of any of the public and commercial documents in
question; and (3) had, at any time, possession of all or some of the said
documents.
Otherwise stated, there is no sufficient circumstantial evidence to prove
conspiracy between the petitioner and Catre to commit the complex crime of
estafa through falsification of public and commercial documents. Neither is
there evidence of petitioners active participation in the commission of the
crime. The concordant combination and cumulative effect of the acts of the
petitioner as proven by the prosecutions evidence fails to satisfy the
requirements of Section 4, Rule 133 of the Rules of Court. There is reasonable
doubt as to his guilt. And since his constitutional right to be presumed innocent
until proven guilty[23] can be overthrown only by proof beyond reasonable
doubt,[24] the petitioner must then be acquitted even though his innocence may
be doubted.[25]
WHEREFORE, the petitioners motion for reconsideration
is GRANTED. Our decision of 14 November 1994 is SET ASIDE, and another
is hereby rendered REVERSING the challenged decision of 28 June 1993 and
resolution of 12 August 1993 of the Sandiganbayan in Criminal Case No. 14844
and ACQUITTING petitioner ODON PECHO of the complex crime of attempted
estafa through falsification of official and commercial documents, without,
however, prejudice to any appropriate administrative action which his office may
take against him as may be warranted by the circumstances in this case.
SO ORDERED.

FIRST DIVISION
NOE S. ANDAYA, G.R. No. 168486
Petitioner,
Present:
Panganiban, C.J. (Chairperson),
- versus - Ynares-Santiago,
Austria-Martinez,
Callejo, Sr., and
Chico-Nazario, JJ.
PEOPLE OF THE PHILIPPINES,
Respondent. Promulgated:

June 27, 2006

x ---------------------------------------------------------------------------------------- x

DECISION
YNARES-SANTIAGO, J.:

This is a petition for review on certiorari from the September 29, 2004
Decision[1] of the Court of Appeals in CA-G.R. CR No. 26556, affirming the January
29, 2002 Decision[2] of the Regional Trial Court, Branch 104 of Quezon City in
Criminal Case No. 92-36145, convicting petitioner Noe S. Andaya of falsification
of private document, and the April 26, 2005 Resolution [3] denying the motion for
reconsideration.

Complainant Armed Forces and Police Savings and Loan Association, Inc.
(AFPSLAI) is a non-stock and non-profit association authorized to engage in savings
and loan transactions. In 1986, petitioner Noe S. Andaya was elected as president
and general manager of AFPSLAI. During his term, he sought to increase the
capitalization of AFPSLAI to boost its lending capacity to its
members. Consequently, on June 1, 1988, the Board of Trustees of AFPSLAI passed
and approved Resolution No. RS-88-006-048 setting up a Finders Fee Program
whereby any officer, member or employee, except investment counselors, of
AFPSLAI who could solicit an investment of not less than P100,000.00 would be
entitled to a finders fee equivalent to one percent of the amount solicited.

In a letter[4] dated September 1991, the Central Bank wrote Gen. Lisandro C.
Abadia, then Chairman of the Board of Trustees, regarding the precarious financial
position of AFPSLAI due to its alleged flawed management. As a result, Gen.
Abadia requested the National Bureau of Investigation (NBI) to conduct an
investigation on alleged irregularities in the operations of AFPSLAI which led to the
filing of several criminal cases against petitioner, one of which is the instant case
based on the alleged fraudulent implementation of the Finders Fee Program.

On October 5, 1992, an information for estafa through falsification of

commercial document was filed against petitioner, to wit:

The undersigned accuses NOE S. ANDAYA of the crime of Estafa

thru Falsification of Commercial Document, committed as follows:

That on or about the 8th day of April, 1991 in Quezon City,

Philippines, the above-named accused, with intent to gain, by means of
deceit, false pretenses and falsification of commercial document, did then
and there, wilfully, unlawfully and feloniously defraud the ARMED
FORCES AND POLICE SAVINGS AND LOAN ASSOCIATION, INC.,
represented by its Chairman of the Board of Director[s], Gen. Lisandro C.
Abadia, AFP, in the following manner, to wit: on the date and in the place
aforementioned the said accused being then the President and General
Manager of the Armed Forces and Police Savings and Loan Association,
Inc., caused and approved the disbursement of the sum of P21,000.00,
Philippine Currency, from the funds of the association, by then and there
making it appear in Disbursement Voucher No. 58380 that said amount
represented the 1% finders fee of one DIOSDADO J. GUILLAS [Guilas];
when in truth and in fact accused knew fully well that there was no such
payment to be made by the association as finders fee; that by virtue of said
falsification, said accused was able to encashed (sic) and received (sic)
MBTC Check No. 583768 in the sum of P21,000.00, which amount once
in his possession, misapplied, misappropriated and converted to his own
personal use and benefit, to the damage and prejudice of the said
offended party in the aforesaid sum of P21,000.00, Philippine Currency.

CONTRARY TO LAW.[5] (Emphasis supplied)

 The case was raffled to Branch 104 of the Regional Trial Court of Quezon
City and docketed as Criminal Case No. 92-36145. On May 30, 1994, petitioner was
arraigned[6] and pleaded not guilty to the charge, after which trial on the merits
ensued.

The prosecution presented two witnesses, namely, Diosdado Guilas and Judy
Balangue.

Guilas, a general clerk of AFPSLAIs Time Deposit Section, testified that

on April 8, 1991, he was informed by Tini Gabriel and Julie Alabansa of the
Treasury Department that there was a finders fee in the amount of P21,000.00 in his
name. Subsequently, Judy Balangue, an investment clerk of the Time Deposit
Section, told him that the finders fee was for petitioner. When Guilas went to
petitioners office to inform him about the finders fee in his (Guilas) name, petitioner
instructed him to collect the P21,000.00 and turn over the same to the latter. Guilas
returned to the Treasury Department and signed Disbursement Voucher No.
58380[7] afterwhich he was issued Metrobank Check No. 683768 [8] for
P21,000.00. After encashing the check, he turned over the proceeds to petitioner. On
cross-examination, Guilas admitted that there was no prohibition in placing the
finders fee under the name of a person who did not actually solicit the investment.

Balangue also testified that on April 3, 1991, petitioner instructed him to

prepare Certificate of Capital Contribution Monthly No. 52178 [9] in the name of
Rosario Mercader for an investment in AFPSLAI in the amount of P2,100,000.00
and to inform Guilas that the finders fee for the aforesaid investment will be placed
in the latters name. On cross-examination, Balangue confirmed that a P2,100,000.00
worth of investment from Rosario Mercader was deposited in AFPSLAI. He further
acknowledged that the Finders Fee Program did not prohibit the placing of another
persons name as payee of the finders fee.

The defense presented three witnesses, namely, Emerita Arevalo, Ernesto

Hernandez and petitioner.

Arevalo, secretary of petitioner in AFPSLAI, explained that the finders fee

was for the P2,100,000.00 investment solicited by Ernesto Hernandez from Rosario
Mercader. The finders fee was placed in the name of Guilas upon request of
Hernandez so that the same would not be reflected in his (Hernandezs) income tax
return. She alleged that Guilas consented to the arrangement of placing the finders
fee in his (Guilas) name. She also claimed that there was no prohibition in the
Finders Fee Program regarding the substitution of the name of the solicitor as long
as there was no double claim for the finders fee over the same investment.

Hernandez, an associate member of AFPSLAI and vice president of

Philippine Educational Trust Plan, Inc. (PETP Plans), testified that sometime in
1991, he was able to solicit from Rosario Mercader an investment of P2,100,000.00
in AFPSLAI. He also asked petitioner to place the finders fee in the name of one of
his employees so that he (Hernandez) would not have to report a higher tax base in
his income tax return. On April 8, 1991, petitioner handed to him the finders fee in
the amount of P21,000.00.

Petitioner denied all the charges against him. He claimed that the P21,000.00
finders fee was in fact payable by AFPSLAI because of the P2,100,000.00
investment of Rosario Mercader solicited by Ernesto Hernandez. He denied
misappropriating the P21,000.00 finders fee for his personal benefit as the same was
turned over to Ernesto Hernandez who was the true solicitor of the aforementioned
investment. Since the finders fee was in fact owed by AFPSLAI, then no damage
was done to the association. The finders fee was placed in the name of Guilas as
requested by Hernandez in order to reduce the tax obligation of the latter. According
to petitioner, Guilas consented to the whole setup.

Petitioner also claimed that Hernandez was an associate member of AFPSLAI

because his application for membership was approved by the membership committee
and the Board of Trustees and was in fact issued an I.D. There was no prohibition
under the rules and regulation of the Finders Fee Program regarding the substitution
of the name of the solicitor with the name of another person. On cross-examination,
petitioner claimed that he merely approved the substitution of the name of
Hernandez with that of Guilas in the disbursement voucher upon the request of
Hernandez. He brushed aside the imputation of condoning tax evasion by claiming
that the issue in the instant proceedings was whether he defrauded AFPSLAI and not
his alleged complicity in tax evasion.
 After the defense rested its case, the prosecution presented two rebuttal
witnesses, namely, Ma. Victoria Maigue and Ma. Fe Moreno.

Maigue, membership affairs office supervisor of AFPSLAI, testified that

Hernandez was ineligible to become a member of AFPSLAI under sections 1 and 2
of Article II of the associations by-laws. However, she admitted that the application
of Hernandez as member was approved by the membership committee.

Moreno, legal officer of AFPSLAI at the time of her testimony on January 25,
2000, stated that there are eight criminal cases pending against the petitioner in
various branches of the Regional Trial Court of Quezon City. In one case decided
by Judge Bacalla of Branch 216, petitioner was convicted of estafa through
falsification involving similar facts as the instant case. She further stated that
Hernandez was not a member of AFPSLAI under sections 1 and 2 of Article II of
the by-laws. On cross-examination, she admitted that the case decided by Judge
Bacalla convicting petitioner was on appeal with the Court of Appeals.

The defense dispensed with the presentation of Mercader in view of the

stipulation of the prosecution on the fact that Mercader was a depositor of AFPSLAI
and that she was convinced to invest in the association by Ernesto Hernandez. [10]

On June 20, 2001, the trial court rendered a Decision[11] convicting petitioner
of falsification of private document. On July 5, 2001, petitioner filed a motion for
new trial.[12] In an Order[13] dated December 20, 2001, the trial court ruled that the
evidence submitted by petitioner in support of his motion was inadequate to conduct
a new trial, however, in the interest of substantial justice, the case should still be
reopened pursuant to Section 24,[14] Rule 119 of the Rules of Court in order to avoid
a miscarriage of justice.

Petitioner proceeded to submit documentary evidence consisting of the

financial statements of AFPSLAI from 1996 to 1999 to show that AFPSLAI did not
suffer any damage from the payment of the P21,000.00 finders fee. He likewise
offered the testimony of Paterno Madet, senior vice president of AFPSLAI, who
testified that he was personally aware that Rosario Mercader invested P2,100,000.00
in AFPSLAI; that Hernandez was a member of AFPSLAI and was the one who
convinced Mercader to invest; that the finders fee was placed in the name of Guilas;
that petitioner called him to grant the request of Hernandez for the finders fee to be
placed in the name of one of the employees of AFPSLAI; that there was no policy
which prohibits the placing of the name of the solicitor of the investment in the name
of another person; that the substitution of the name of Hernandez with that of Guilas
was approved by petitioner but he (Madet) was the one who approved the release of
the disbursement voucher.

On January 29, 2002, the trial court rendered the assailed Decision convicting
petitioner of falsification of private document based on the following findings of
fact: Hernandez solicited from Rosario Mercader an investment of P2,100,000.00
for AFPSLAI; Hernandez requested petitioner to place the finders fee in the name
of another person; petitioner caused it to appear in the disbursement voucher that
Guilas solicited the aforesaid investment; the voucher served as the basis for the
issuance of the check for P21,000.00 representing the finders fee for the investment
of Mercader; and Guilas encashed the check and turned over the money to petitioner
who in turn gave it to Hernandez.

The trial court ruled that all the elements of falsification of private document
were present. First, petitioner caused it to appear in the disbursement voucher, a
private document, that Guilas, instead of Hernandez, was entitled to a P21,000.00
finders fee. Second, the falsification of the voucher was done with criminal intent
to cause damage to the government because it was meant to lower the tax base of
Hernandez and, thus, evade payment of taxes on the finders fee.

Petitioner moved for reconsideration but was denied by the trial court in an
[15]
Order dated May 13, 2002. On appeal, the Court of Appeals affirmed in toto the
decision of the trial court and denied petitioners motion for reconsideration; hence,
the instant petition challenging the validity of his conviction for the crime of
falsification of private document.

Preliminarily, petitioner contends that the Court of Appeals contradicted the

ruling of the trial court. He claims that the Court of Appeals stated in certain portions
of its decision that petitioner was guilty of estafa through falsification of commercial
document whereas in the trial courts decision petitioner was convicted of
falsification of private document.
 A close reading of the Court of Appeals decision shows that the alleged points
of contradiction were the result of inadvertence in the drafting of the same. Read in
its entirety, the decision of the Court of Appeals affirmed in toto the decision of the
trial court and, necessarily, it affirmed the conviction of petitioner for the crime of
falsification of private document and not of estafa through falsification of
commercial document.

In the main, petitioner implores this Court to review the pleadings he filed
before the lower courts as well as the evidence on record on the belief that a review
of the same will prove his innocence. However, he failed to specify what aspects of
the factual and legal bases of his conviction should be reversed.

Time honored is the principle that an appeal in a criminal case opens the whole
action for review on any question including those not raised by the parties. [16] After
a careful and thorough review of the records, we are convinced that petitioner should
be acquitted based on reasonable doubt.

The elements of falsification of private document under Article 172,

paragraph 2[17] in relation to Article 171[18] of the Revised Penal Code are: (1) the
offender committed any of the acts of falsification under Article 171 which, in the
case at bar, falls under paragraph 2 of Article 171, i.e., causing it to appear that
persons have participated in any act or proceeding when they did not in fact so
participate; (2) the falsification was committed on a private document; and (3) the
falsification caused damage or was committed with intent to cause damage to a third
party.

Although the public prosecutor designated the offense charged in the

information as estafa through falsification of commercial document, petitioner could
be convicted of falsification of private document, had it been proper, under the well-
settled rule that it is the allegations in the information that determines the nature of
the offense and not the technical name given by the public prosecutor in the preamble
of the information. We explained this principle in the case of U.S. v. Lim San[19] in
this wise:

From a legal point of view, and in a very real sense, it is of no

concern to the accused what is the technical name of the crime of which
 he stands charged. It in no way aids him in a defense on the merits. x x x
That to which his attention should be directed, and in which he, above all
things else, should be most interested, are the facts alleged. The real
question is not did he commit a crime given in the law some technical and
specific name, but did he perform the acts alleged in the body of the
information in the manner therein set forth. x x x The real and important
question to him is, Did you perform the acts alleged in the manner alleged?
not, Did you commit a crime named murder? If he performed the acts
alleged, in the manner stated, the law determines what the name of the
crime is and fixes the penalty therefor. x x x If the accused performed the
acts alleged in the manner alleged, then he ought to be punished and
punished adequately, whatever may be the name of the crime which those
acts constitute.[20]

The facts alleged in the information are sufficient to constitute the crime of
falsification of private document. Specifically, the allegations in the information can
be broken down into the three aforestated essential elements of this offense as
follows: (1) petitioner caused it to appear in Disbursement Voucher No. 58380
that Diosdado Guillas was entitled to a finders fee from AFPSLAI in the amount of
P21,000.00 when in truth and in fact no finders fee was due to him; (2) the
falsification was committed on Disbursement Voucher No. 58380; and (3) the
falsification caused damage to AFPSLAI in the amount of P21,000.00.

The first element of the offense charged in the information was proven by the
prosecution. The testimonies of the prosecution witnesses, namely, Diosdado Guilas
and Judy Balangue, as well as the presentation of Disbursement Voucher No.
58380 established that petitioner caused the preparation of the voucher in the name
of Guilas despite knowledge that Guilas was not entitled to the finders
fee. Significantly, petitioner admitted his participation in falsifying the voucher
when he testified that he authorized the release of the voucher in the name of Guilas
upon the request of Ernesto Hernandez. While petitioner did not personally prepare
the voucher, he could be considered a principal by induction, had his conviction been
proper, since he was the president and general manager of AFPSLAI at the time so
that his employees merely followed his instructions in preparing the falsified
voucher.
 The second element of the offense charged in the information, i.e., the
falsification was committed in Disbursement Voucher No. 58380, a private
document, is likewise present. It appears that the public prosecutor erroneously
characterized the disbursement voucher as a commercial document so that he
designated the offense as estafa through falsification of commercial document in the
preamble of the information. However, as correctly ruled by the trial court, [21] the
subject voucher is a private document only; it is not a commercial document because
it is not a document used by merchants or businessmen to promote or facilitate trade
or credit transactions[22] nor is it defined and regulated by the Code of Commerce or
other commercial law.[23] Rather, it is a private document, which has been defined
as a deed or instrument executed by a private person without the intervention of a
public notary or of other person legally authorized, by which some disposition or
agreement is proved, evidenced or set forth, [24] because it acted as the authorization
for the release of the P21,000.00 finders fee to Guilas and as the receipt evidencing
the payment of this finders fee.

While the first and second elements of the offense charged in the information
were satisfactorily established by the prosecution, it is the third element which is
decisive in the instant case. In the information, it was alleged that petitioner caused
damage in the amount of P21,000.00 to AFPSLAI because he caused it to appear in
the disbursement voucher that Diosdado Guilas was entitled to a P21,000.00 finders
fee when in truth and in fact AFPSLAI owed no such sum to him. However, contrary
to these allegations in the information, petitioner was able to prove that AFPSLAI
owed a finders fee in the amount of P21,000.00 although not to Guilas but to Ernesto
Hernandez.

It was positively shown that Hernandez was able to solicit a P2,100,000.00

worth of investment for AFPSLAI from Rosario Mercader which entitled him to a
finders fee equivalent to one percent of the amount solicited (i.e., P21,000.00) under
the Finders Fee Program. The documentary evidence consisting of the Certificate of
Capital Contribution Monthly No. 52178[25] which was presented by the prosecution
categorically stated that Rosario Mercader deposited P2,100,000.00 worth of
investment in AFPSLAI. In fact, Rosario Mercader was no longer presented as a
defense witness in view of the stipulation by the prosecution on the fact that
Mercader was a depositor of AFPSLAI and that Hernandez was the one who
convinced her to make such deposit.[26] Moreover, the defense showed that the
disbursement voucher was merely placed in the name of Guilas upon the request of
Hernandez so that he would have a lower tax base. Thus, after Guilas received the
P21,000.00 from AFPSLAI, he gave the money to petitioner who in turn surrendered
the amount to Hernandez.

It was further established that Hernandez was an associate member of

AFPSLAI and, thus, covered by the Finders Fee Program. The prosecution tried to
cast doubt on the validity of Hernandezs membership in the association but it merely
relied on the unsubstantiated claims of its two rebuttal witnesses, namely, Ma.
Victoria Maigue, membership affairs office supervisor of AFPSLAI and Ma. Fe
Moreno, legal officer of AFPSLAI, who claimed that Hernandez was disqualified
from being an associate member under AFPSLAIs by-laws. However, except for a
recital of certain provisions of the by-laws, they failed to support their claims with
documentary evidence clearly showing that Hernandez was disqualified from being
an associate member. Significantly, Maigue admitted on cross-examination that
Hernandezs membership was approved by AFPSLAIs membership committee and
was issued an AFPSLAI I.D. card.[27] Documentary evidence consisting of
Hernandezs I.D. card as well as the oral testimonies of petitioner, Arevalo and
Hernandez, and the admission of Maigue on cross-examination, support the claim of
the defense that Hernandez was an associate member of AFPSLAI.

Considering that Hernandez was able to solicit a P2,100,000.00 investment

from Mercader, it follows that he was entitled to receive the finders fee in the amount
of P21,000.00. AFPSLAI suffered no damage because it really owed the P21,000.00
finders fee to Hernandez albeit the sum was initially paid to Guilas and only later
turned over to Hernandez. Clearly then, the third essential element of the offense as
alleged in the information, i.e., the falsification caused damage to AFPSLAI in the
amount of P21,000.00, was not proven by the prosecution.

In all criminal prosecutions, the burden of proof is on the prosecution to

establish the guilt of the accused beyond reasonable doubt. [28] It has the duty to
prove each and every element of the crime charged in the information to warrant a
finding of guilt for the said crime or for any other crime necessarily included
therein. However, in the case at bar, the prosecution failed to prove the third essential
element of the crime charged in the information. Thus, petitioner should be acquitted
due to insufficiency of evidence.
 The trial court convicted petitioner of falsification of private document, while
conceding that AFPSLAI suffered no damage, however, the court reasoned that the
third essential element of falsification of private document was present because the
falsification of the voucher was done with criminal intent to cause damage to the
governmentconsidering that its purpose was to lower the tax base of Hernandez and,
thus, allow him to evade payment of taxes on the finders fee.

We find ourselves unable to agree with this ratiocination of the trial court
because it violates the constitutional right [29] of petitioner to be informed of the
nature and cause of the accusation against him. As early as the 1904 case of U.S. v.
Karelsen,[30] the rationale of this fundamental right of the accused was already
explained in this wise:

The object of this written accusation was First. To furnish the

accused with such a description of the charge against him as will enable
him to make his defense; and second, to avail himself of his conviction or
acquittal for protection against a further prosecution for the same cause;
and third, to inform the court of the facts alleged, so that it may decide
whether they are sufficient in law to support a conviction, if one should
be had. (United States vs. Cruikshank, 92 U.S. 542.) In order that this
requirement may be satisfied, facts must be stated, not conclusions of
law. Every crime is made up of certain acts and intent; these must be set
forth in the complaint with reasonable particularity of time, place, names
(plaintiff and defendant), and circumstances. In short, the complaint must
contain a specific allegation of every fact and circumstances necessary to
constitute the crime charged.[31] (Emphasis supplied)

It is fundamental that every element constituting the offense must be alleged

in the information. The main purpose of requiring the various elements of a crime to
be set out in the information is to enable the accused to suitably prepare his defense
because he is presumed to have no independent knowledge of the facts that constitute
the offense.[32]The allegations of facts constituting the offense charged are
substantial matters and an accuseds right to question his conviction based on facts
not alleged in the information cannot be waived. [33] No matter how conclusive and
convincing the evidence of guilt may be, an accused cannot be convicted of any
offense unless it is charged in the information on which he is tried or is necessarily
included therein.[34] To convict him of a ground not alleged while he is concentrating
his defense against the ground alleged would plainly be unfair and
underhanded.[35] The rule is that a variance between the allegation in the information
and proof adduced during trial shall be fatal to the criminal case if it is material and
prejudicial to the accused so much so that it affects his substantial rights. [36]

Thus, in Alonto v. People,[37] Dico v. Court of Appeals[38] and Ongson v.

People,[39] we acquitted the accused for violation of Batas Pambansa Bilang 22 (The
Bouncing Checks Law) because there was a variance between the identity and date
of issuance of the check alleged in the information and the check proved by the
prosecution during trial:

This Court notes, however, that under the third count,

the information alleged that petitioner issued a check dated May 14,
1992 whereas the documentary evidence presented and duly marked as
Exhibit "I" was BPI Check No. 831258 in the amount of P25,000
dated April 5, 1992. Prosecution witness Fernando Sardes confirmed
petitioner's issuance of the three BPI checks (Exhibits G, H, and I), but
categorically stated that the third check (BPI Check No. 831258) was
dated May 14, 1992, which was contrary to that testified to by private
complainant Violeta Tizon, i.e., BPI check No. 831258 dated April 5,
1992. In view of this variance, the conviction of petitioner on the third
count (Criminal Case No. Q-93-41751) cannot be sustained. It is on this
ground that petitioner's fourth assignment of error is tenable, in that the
prosecution's exhibit, i.e., Exhibit "I" (BPI Check No. 831258 dated April
5, 1992 in the amount of P25,000) is excluded by the law and the rules on
evidence. Since the identity of the check enters into the first essential
element of the offense under Section 1 of B.P. 22, that is, that a
person makes, draws or issues a check on account or for value, and the
date thereof involves its second element, namely, that at the time of
issue the maker, drawer or issuer knew that he or she did not have
sufficient funds to cover the same, there is a violation of petitioner's
constitutional right to be informed of the nature of the offense charged in
view of the aforesaid variance, thereby rendering the conviction for the
third count fatally defective.[40] (Underscoring supplied)

Similarly, in the case of Burgos v. Sandiganbayan,[41] we upheld the

constitutional right of the accused to be informed of the accusation against him in a
case involving a variance between the means of committing the violation of Section
3(e) of R.A. 3019 alleged in the information and the means found by the
Sandiganbayan:

Common and foremost among the issues raised by petitioners is the

argument that the Sandiganbayan erred in convicting them on a finding of
fact that was not alleged in the information. They contend that the
information charged them with having allowed payment of P83,850 to
Ricardo Castaeda despite being aware and knowing fully well that the
surveying instruments were not actually repaired and rendered
functional/operational. However, their conviction by the Sandiganbayan
was based on the finding that the surveying instruments were not repaired
in accordance with the specifications contained in the job orders.

xxxx

In criminal cases, where the life and liberty of the accused is at

stake, due process requires that the accused be informed of the nature and
cause of the accusation against him. An accused cannot be convicted of
an offense unless it is clearly charged in the complaint or information. To
convict him of an offense other than that charged in the complaint or
information would be a violation of this constitutional right.

The important end to be accomplished is to describe the act with

sufficient certainty in order that the accused may be appraised of the
nature of the charge against him and to avoid any possible surprise that
may lead to injustice. Otherwise, the accused would be left in the
unenviable state of speculating why he is made the object of a prosecution.

xxxx

There is no question that the manner of commission alleged in the

information and the act the Sandiganbayan found to have been committed
are both violations of Section 3(e) of R.A. 3019. Nonetheless, they are and
remain two different means of execution and, even if reference to Section
3(e) of R.A. 3019 has been made in the information, appellants conviction
should only be based on that which was charged, or included, in the
information. Otherwise, there would be a violation of their constitutional
right to be informed of the nature of the accusation against them.

In Evangelista v. People, a judgment of conviction by the

Sandiganbayan, for violation of Section 3(e) of the Anti-Graft and Corrupt
 Practices Act, was reversed by the Court on the ground that accused was
made liable for acts different from those described in the information. The
accused therein was convicted on the finding that she failed to identify
with certainty in her certification the kinds of taxes paid by Tanduay
Distillery, Inc., although the information charged her with falsifying said
certificate. The Court said that, constitutionally, the accused has a right to
be informed of the nature and cause of the accusation against her. To
convict her of an offense other than that charged in the complaint or
information would be a violation of this constitutional right.

Contrary to the stand of the prosecution, the allegations contained

in the information and the findings stated in the Sandiganbayan decision
are not synonymous. This is clearly apparent from the mere fact that the
defenses applicable for each one are different. To counter the allegations
contained in the information, petitioners only had to prove that the
instruments were repaired and rendered functional/operational. Under the
findings stated in the Sandiganbayan decision, petitioners defense would
have been to show not only that the instruments were repaired, but were
repaired in accordance with the job order.

xxxx

This is not to say that petitioners cannot be convicted under the

information charged. The information in itself is valid. It is only that the
Sandiganbayan erred in convicting them for an act that was not alleged
therein. x x x.[42] (Underscoring supplied)

As in the Burgos case, the information in the case at bar is valid,

however, there is a variance between the allegation in the information and proof
adduced during trial with respect to the third essential element of falsification of
private document, i.e., the falsification caused damage or was committed with intent
to cause damage to a third party. To reiterate, petitioner was charged in the
information with causing damage to AFPSLAI in the amount of P21,000.00 because
he caused it to appear in the disbursement voucher that Guilas was entitled to a
P21,000.00 finders fee when in truth and in fact AFPSLAI owed no such amount to
Guilas. However, he was convicted by the trial court of falsifying the voucher with
criminal intent to cause damage to the government because the trial court found
that petitioners acts were designed to lower the tax base of Hernandez and aid the
latter in evading payment of taxes on the finders fee.
 We find this variance material and prejudicial to petitioner which, perforce, is
fatal to his conviction in the instant case. By the clear and unequivocal terms of the
information, the prosecution endeavored to prove that the falsification of the voucher
by petitioner caused damage to AFPSLAI in the amount of P21,000.00 and not that
the falsification of the voucher was done with intent to cause damage to the
government. It is apparent that this variance not merely goes to the identity of the
third party but, more importantly, to the nature and extent of the damage done to the
third party. Needless to state, the defense applicable for each is different.

More to the point, petitioner prepared his defense based precisely on the
allegations in the information. A review of the records shows that petitioner
concentrated on disproving that AFPSLAI suffered damage for this was the charge
in the information which he had to refute to prove his innocence. As previously
discussed, petitioner proved that AFPSLAI suffered no damage inasmuch as it really
owed the finders fee in the amount of P21,000.00 to Hernandez but the same was
placed in the name of Guilas upon Hernandezs request. If we were to convict
petitioner now based on his intent to cause damage to the government, we would be
riding roughshod over his constitutional right to be informed of the accusation
because he was not forewarned that he was being prosecuted for intent to cause
damage to the government. It would be simply unfair and underhanded to convict
petitioner on this ground not alleged while he was concentrating his defense against
the ground alleged.

The surprise and injustice visited upon petitioner becomes more evident if we
take into consideration that the prosecution never sought to establish that petitioners
acts were done with intent to cause damage to the government in that it purportedly
aided Hernandez in evading the payment of taxes on the finders fee. The Bureau of
Internal Revenue was never made a party to this case. The income tax return of
Hernandez was, likewise, never presented to show the extent, if any, of the actual
damage to the government of the supposed under declaration of income by
Hernandez. Actually, the prosecution never tried to establish actual damage, much
less intent to cause damage, to the government in the form of lost income taxes.
There was here no opportunity for petitioner to object to the evidence presented by
the prosecution on the ground that the evidence did not conform to the allegations in
the information for the simple reason that no such evidence was presented by the
prosecution to begin with.

Instead, what the trial court did was to deduce intent to cause damage to the
government from the testimony of petitioner and his three other witnesses, namely,
Arevalo, Hernandez and Madet, that the substitution of the names in the voucher
was intended to lower the tax base of Hernandez to avoid payment of taxes on the
finders fee. In other words, the trial court used part of the defense of petitioner in
establishing the third essential element of the offense which was entirely different
from that alleged in the information. Under these circumstances, petitioner
obviously had no opportunity to defend himself with respect to the charge that he
committed the acts with intent to cause damage to the government because this was
part of his defense when he explained the reason for the substitution of the names in
the voucher with the end goal of establishing that no actual damage was done to
AFPSLAI. If we were to approve of the method employed by the trial court in
convicting petitioner, then we would be sanctioning the surprise and injustice that
the accuseds constitutional right to be informed of the nature and cause of the
accusation against him precisely seeks to prevent. It would be plain denial of due
process.

In view of the foregoing, we rule that it was error to convict petitioner for acts
which purportedly constituted the third essential element of the crime but which
were entirely different from the acts alleged in the information because it violates in
no uncertain terms petitioners constitutional right to be informed of the nature and
cause of the accusation against him.

No doubt tax evasion is a deplorable act because it deprives the government

of much needed funds in delivering basic services to the people. However, the
culpability of petitioner should have been established under the proper information
and with an opportunity for him to adequately prepare his defense. It is worth
mentioning that the public prosecutor has been apprised of petitioners defense in the
counter-affidavit[43] that he filed before the NBI. He claimed there that AFPSLAI
really owed the P21,000.00 finders fee not to Guilas but to Hernandez and that the
finders fee was placed in the name of Guilas under a purported financial arrangement
between petitioner and Guilas. Yet in his Resolution[44] dated September 14, 1992,
the public prosecutor disregarded petitioners defense and proceeded to file the
information based on the alleged damage that petitioner caused to AFPSLAI in the
amount of P21,000.00 representing unwarranted payment of finders fee. [45] During
the trial proper, the prosecution was again alerted to the fact that AFPSLAI suffered
no actual damage and that the substitution of the names in the voucher was designed
to aid Hernandez in evading the payment of taxes on the finders fee. This was shown
by no less than the prosecutions own documentary evidence the Certificate of Capital
Contribution Monthly No. 52178 in the amount of P2,100,000.00 issued to Rosario
Mercader which was prepared and identified by the prosecution witness, Judy
Balangue. Later on, the testimonies of the defense witnesses, Arevalo, Hernandez,
Madet and petitioner, clearly set forth the reasons for the substitution of the names
in the disbursement voucher. However, the prosecution did not take steps to seek the
dismissal of the instant case and charge petitioner and his cohorts with the proper
information before judgment by the trial court as expressly allowed under Section
19,[46] Rule 119 of the Rules of Court.[47] Instead, the prosecution proceeded to try
petitioner under the original information even though he had an adequate defense
against the offense charged in the information. Regrettably, these mistakes of the
prosecution can only benefit petitioner.

In closing, it is an opportune time to remind public prosecutors of their

important duty to carefully study the evidence on record before filing the
corresponding information in our courts of law and to be vigilant in identifying and
rectifying errors made. Mistakes in filing the proper information and in the ensuing
prosecution of the case serve only to frustrate the States interest in enforcing its
criminal laws and adversely affect the administration of justice.

WHEREFORE, the petition is GRANTED. The September 29, 2004

Decision and April 26, 2005 Resolution of the Court Appeals in CA-G.R. CR No.
26556 are REVERSED and SET ASIDE. Petitioner is ACQUITTED based on
reasonable doubt. The Bail Bond is CANCELLED.

SO ORDERED.
 EN BANC

THE PEOPLE OF THE PHILIPPINES, G.R. No. 174473

Appellee,
Present:
PUNO, C.J.,
QUISUMBING,
YNARES-SANTIAGO,
- versus - SANDOVAL-GUTIERREZ,
CARPIO,
AUSTRIA-MARTINEZ,
CORONA,
CARPIO-MORALES,
AZCUNA,
ALVIN ABULON y SALVANIA, TINGA,
Appellant. CHICO-NAZARIO,
GARCIA,
VELASCO, JR.,
NACHURA, and
REYES, JJ.

Promulgated:

August 17, 2007

x-------------------------------------------------------------------------------- x

DECISION

TINGA, J.:

For automatic review is the decision[1] of the Court of Appeals (CA) dated 28 April
2006, affirming with modification the decision[2] of the Regional Trial Court (RTC) of
Santa Cruz, Laguna, Branch 28,[3] dated 27 December 2000, finding him guilty
beyond reasonable doubt of two (2) counts of qualified rape and one (1) count of
acts of lasciviousness.

In three (3) separate Informations[4] for Criminal Cases No. SC-7422, SC-7423 and
SC-7424 all dated 16 June 1999, appellant was indicted before the RTC for three (3)
counts of qualified rape against his minor daughter AAA. [5] The accusatory portions
in all the Informations are identical, except as regards the date of commission of
the crime. The Information in Criminal Case No. SC-7422 reads:

At the instance of the private complainant [AAA] with the conformity of

her mother [BBB][6] in a sworn complaint filed with the Municipal Circuit
Trial Court of Lumban-Kalayaan (Laguna), the undersigned Assistant
Provincial Prosecutor of Laguna hereby accuses ALVIN ABULON Y
SALVANIA, of the crime of RAPE, committed as follows:

That on or about March 14, 1999, in the Municipality of

Kalayaan, Province of Laguna, and within the jurisdiction of
this Honorable Court, the above-named accused, with lewd
designs, with grave abuse of confidence or obvious
 ungratefulness, and with force and intimidation, did then
and there wilfully [sic], unlawfully and feloniously have
carnal knowledge of his legitimate minor daughter, [AAA],
who at the [sic] time was thirteen (13) years of age, against
her will and consent and to her damage and prejudice.

CONTRARY TO LAW.

After appellant pleaded not guilty, trial ensued with AAA herself, as the first
prosecution witness, testifying to the following facts:

AAA is the oldest of five (5) legitimate children born to appellant and BBB. On 14,
15, and 16 March 1999, appellant raped AAA. The first rape incident occurred at
around 1:30in the morning of 14 March 1999. AAA was home, fast asleep next to
her brother and sister when she suddenly woke up to the noise created by her
father who arrived drunk, but who likewise soon thereafter returned to the
wedding festivities he was attending. Abiding by their fathers instructions, AAA and
her siblings went back to sleep.[7]

AAA was next awakened by the weight of her father lying naked on top of her.
Appellant had removed her underwear while she slept. He poked a knife on AAAs
waist and threatened to kill her and her siblings if she reported the incident to
anyone. She begged him to stop but he proceeded to kiss her mouth, vagina, and
breast, and to have carnal knowledge of her. [8] Although they witnessed the
ongoing ordeal, AAAs siblings could do nothing but cry as appellant likewise poked
the knife on them.[9] The following morning, AAA found a whitish substance and
blood stains on her panty.[10]

On 15 March 1999, at around 10:30 in the evening, AAA and her siblings were
awakened as appellant came home drunk. He told them to eat first as they had not
taken their supper yet. After dining together, appellant left and AAA, her brother,
and her sister went back to sleep.[11] As in the previous evening, appellant roused
AAA in mid-sleep. This time, she woke up with her father holding her hand, covering
her mouth and lying on top of her. He undressed AAA, then mounted her.
Repeatedly, he inserted his penis into her vagina, and AAA felt pain in her private
parts. Appellant also kissed and fondled AAA on different parts of her body. [12]

Again, AAAs siblings could only cry as they saw appellant rape their sister. AAAs
sister, however, took a pen and wrote her a note which read: Ate, let us tell what
father was doing to the police officer. After appellant had raped AAA, the latters
sister asked their father why he had done such to AAA. In response, appellant
spanked AAAs sister and threatened to kill all of them should they report the
incidents to the police.[13] The sisters nonetheless related to their relatives AAAs
misfortune, but the relatives did not take heed as they regarded appellant to be a
kind man.[14]

The third rape episode happened at around 3:30 in the morning of 16 March 1999.
Although appellant did not insert his penis into AAAs vagina on this occasion, he
took off her lower undergarments and kissed her vagina.[15] On cross-examination,
AAA asserted that her father inserted his tongue into the hole of her vagina and
she felt pain because of this.[16]

To corroborate AAAs testimony, the prosecution presented BBB and AAAs 6-year
old brother CCC.[17] BBB testified that she was a stay-in housemaid working in Las
Pias on the dates that her daughter was raped by appellant. On 26 March 1999, she
went home and stayed with her family. However, it was only on 4 May 1999 that
BBB learned of the rape, when CCC told her that appellant had raped AAA three (3)
times and that he had seen his father on top of his sister during those occasions.
BBB then verified the matter with AAA herself, and the latter affirmed the
incidents. BBB thus took AAA with her to the barangay and police authorities to
report the incidents, and later to the provincial hospital for medical examination. [18]
CCC testified that on three (3) separate occasions, he saw his father lying naked on
top of AAA, who was likewise naked. [19]

The prosecution also presented SPO1 Bayani G. Montesur (SPO1 Montesur) and Dr.
Gloria Cabael (Dr. Cabael). SPO1 Montesur identified the Police Blotter of 4 May
1999which recorded the complaints of rape against appellant and the report of the
latters arrest.[20] Dr. Cabael, on the other hand, testified that she examined AAA
on 4 May 1999upon the request of Police Officer Gallarosa. She identified the Rape
Case Report she prepared thereafter.[21]

Appellant testified as the sole witness on his behalf, proffering denial and alibi as
his defenses. According to appellant, he was hired by his aunt, Raquel Masangkay,
to deliver hogs and that at 1:30 in the morning of 14 March 1999, he was in
Calamba, Laguna pursuant to such employment. He averred that he went home
at 7:00 in the morning of the following day and thus could not have raped his
daughter as alleged.[22] Likewise denying the second rape charge, appellant
testified that on 15 March 1999, he attended a wedding ceremony in Sityo
Kalayaan, San Antonio, Kalayaan, Laguna. He went home drunk at 6:00 that
evening and promptly went to sleep. [23] Similarly, at 3:00 in the morning of 16
March 1999, appellant claimed to have been asleep with his children and could not
have thus committed the rape as charged. [24]

Finding that the prosecution had proven beyond reasonable doubt the guilt
of appellant of the crime of qualified rape in Criminal Case Nos. SC-7422 and SC-
7423 and the crime of acts of lasciviousness in Criminal Case No. SC-7424, the RTC
rendered a Consolidated Judgment against appellant and sentenced him
accordingly, thus:
 WHEREFORE:

Under Criminal Case No. SC-7422, this Court finds the accused ALVIN
ABULON y SALVANIA GUILTY BEYOND REASONABLE DOUBT as PRINCIPAL
of CONSUMMATED QUALIFIED RAPE as defined and penalized under
Article 335 of the Revised Penal Code, as amended by Rep. Act No. 7639,
otherwise known as the DEATH PENALTY LAW, and hereby sentences him
to suffer the SUPREME PENALTY of DEATH and to indemnify the offended
party [AAA] the following sums:

P 75,000.00 - as civil indemnity

50,000.00 - as moral damages; and
50,000.00 - as exemplary damages.

Under Criminal Case No. SC-7423, this Court finds the accused
ALVIN ABULON y SALVANIA GUILTY BEYOND REASONABLE DOUBT as
PRINCIPAL of CONSUMMATED QUALIFIED RAPE as defined and penalized
under Article 335 of the Revised Penal Code, as amended by Rep. Act No.
7639, otherwise known as the DEATH PENALTY LAW, and hereby
sentences him to suffer the SUPREME PENALTY of DEATH and to
indemnify the offended party [AAA] the following sums:

P 75,000.00 - as civil indemnity

50,000.00 - as moral damages; and
50,000.00 - as exemplary damages.

Under Criminal Case No. SC-7424, this Court finds the accused
ALVIN ABULON y SALVANIA GUILTY BEYOND REASONABLE DOUBT as
PRINCIPAL of ACTS OF LASCIVIOUSNESS as defined and penalized under
Article 336 of the Revised Penal Code and hereby sentences him to suffer
 the penalty of imprisonment for SIX (6) MONTHS of ARRESTO MAYOR as
MINIMUM to SIX (6) YEARS of PRISION CORRECCIONAL as MAXIMUM.

The accused is further ordered to pay the costs of the instant three (3)
cases.

SO ORDERED.[25]

With the death penalty imposed on appellant, the case was elevated to this Court
on automatic review. However, pursuant to this Courts ruling in People v.
Mateo,[26] the case was transferred to the Court of Appeals. On 28 April 2006, the
appellate court rendered its decision affirming appellants conviction, but with
modification as to damages awarded to the victim. The dispositive portion of the
decision states:

WHEREFORE, the decision of the Regional Trial Court of Santa Cruz,

Laguna, Branch 28, in Criminal Case Nos. SC-7422 and SC-7423 finding
appellant Alvin S. Abulon guilty beyond reasonable doubt of the crimes of
qualified rape, and in Criminal Case No. SC-7424, finding appellant guilty
beyond reasonable doubt of the crime of acts of lasciviousness, are
hereby AFFIRMED.

The civil aspect of the case is MODIFIED to read: In Criminal Case Nos. SC-
7422-7423, the award of exemplary damages in the amount of
[P]50,000.00 is reduced to [P]25,000.00. In Criminal Case No. SC-7424,
 appellant is ordered to pay the victim the amount of [P]30,000.00 as
moral damages. We affirm in all other respects.

Pursuant to A.M. 00-5-03-SC (Amendments to the Revised Rule of

Criminal Procedure to Govern Death Penalty Cases), which took effect on
October 15, 2004, this case is elevated and certified to the Supreme Court
for its automatic review.

SO ORDERED.[27]

In his Brief,[28] appellant assails his conviction and imputes grave error to the trial
court for giving weight and credence to the testimony of AAA. In particular, he
makes capital of AAAs delay in reporting the incidents to her mother. He likewise
impugns the trial courts alleged bias in propounding inappropriate leading
questions to private complainant AAA. Finally, he maintains that the Informations
against him are defective as they failed to allege the key element of force and/or
intimidation.[29]

We affirm the decision of the Court of Appeals with modifications.

The duty to ascertain the competence and credibility of a witness rests primarily
with the trial court,[30] because it has the unique position of observing the witnesss
deportment on the stand while testifying. Absent any compelling reason to justify
the reversal of the evaluations and conclusions of the trial court, the reviewing
court is generally bound by the formers findings. [31]

In rape cases particularly, the conviction or acquittal of the accused most

often depends almost entirely on the credibility of the complainants testimony. By
the very nature of this crime, it is generally unwitnessed and usually the victim is
left to testify for herself.[32] Her testimony is most vital and must be received with
the utmost caution.[33]When a rape victims testimony, however, is straightforward
and marked with consistency despite grueling examination, it deserves full faith
and confidence and cannot be discarded. Once found credible, her lone testimony
is sufficient to sustain a conviction. [34]

The court a quo found the testimony of AAA in its entirety to be credible,
made in a candid, spontaneous, and straightforward manner and never shaken
even under rigid cross-examination.[35] We agree that AAAs narration of her
harrowing experience is worthy of credence, thus:

Criminal Case No. SC-7422

Trial Prosecutor:
Q : Tell us what happened at around 1:30 in the morning of March 11,
[sic] 1999 to you?
A : My brother and sister and I were already asleep when my father who
was drank [sic] came home. We told him to just sleep. My father
told us that he would still return to the wedding celebration
(kasalan).

xxxx

Q : What happened next when you continued sleeping?

A : I was awakened when I felt my father already on top of me, sir.

Q : Tell us exactly what was [sic] your position then at that time you woke
up?
A : I was still lying straight down, sir.
Q : How about your father in relation to you, where was he at the time
you woke up?
A : He was on top (nakadagan) of me, sir.

Court:
Q : Was he naked?
A : Already naked, Your Honor.

Q : How about you, do [sic] you have your clothes on?

A : I have [sic] my lady sando on, Your Honor.

Trial Prosecutor:
Q : Are [sic] you still wearing your panty when you were awakened?
A : No more, sir.

xxxx
Q : What did your father do aside from placing his body on top of you?
A : He poked a knife on [sic] me, sir.

Court:
Q : Did he say something?
A : Yes, Your Honor.
Q : What did he say?
A : He said that if he [sic] report her [sic] to anybody he would kill us, Your
Honor.

xxxx

Trial Prosecutor:
Q : What else did he do aside from telling you huag kang
magsusumbong?
A : He also poked the knife on [sic] my brother and sister, sir.

Q : They were already awakened at that time?

A : Yes, sir.

Q : What else did he do aside from poking a knife on [sic] you and your
brother and sister?
A : No more, sir.

Court:
Q : While your father according to you is [sic] on top of you, what did
he do if any?
A : Kinayog na po niya ako.

Q : What do you mean by telling [sic] kinayog na po niya ako?

A : He was moving, Your Honor.
Q : While your father was moving, what else was happening at that
time?
A : I felt pain, Your Honor.

Trial Prosecutor:
Q : From where did you feel that pain?
A : From my private part, sir.

xxxx

Q : Do you know if you know why you felt the pain on the lower portion
of your body?
A : Yes, sir.

Q : Please tell us if you know?

A : Something whitish coming out from it, sir.

Court:
Q : From where did it come from [sic]? That whitish substance?
A : From my fathers private part, Your Honor.

Q : Why, what happened to the private part of your father?

A : I do not know, Your Honor.

Q : When you felt pain, what was your father doing then?
A : He repeated what he told [sic] previously not to tell to [sic] anybody.
Q : At that time, did you see the private part of your father?
A : Yes, Your Honor.

Q : When you felt pain. Do you know what is [sic] happening to the
private part of your father?
A : Yes, Your Honor.

Q : What was happening?

A : His private part stiffened or hardened (tumirik), Your Honor.

Q : Where was it placed if any?

A : Into my private part, Your Honor.

Q : Did the private part of you father actually penetrate your vagina?
A : Yes, Your Honor.

Q : What did you feel at the time the penis of your father entered your
vagina?
A : It was painful, Your Honor.

Q : At that time was your father making any movement?

A : Yes, Your Honor.

Q : Will you describe the movement made by your father?

A : (Witness demonstrating an upward and downward stroke by placing
her right palm over her left hand)

Trial Prosecutor:
Q : Did he kiss you?
A : Yes, sir.

Q : In what part of your body?

A : On my mouth, sir.

Q : Aside from your mouth, what other part or parts of your body did he
kiss?
A : On my private part, sir.

Q : When did he kiss you private part, before inserting his penis or after?
A : After he inserted his penis, sir.

Q : What other part of your body did he kiss?

A : On my breast, sir.[36]

xxxx

Criminal Case No. SC-7423

TP. Arcigal, Jr.:
Q : Now, you said that the second incident happened [on] March 15,
1999, am I correct?
A : Yes, sir.

Q : And where and what time said [sic] second incident happened?
A : 10:30 in the evening, sir, also in our house, sir.

xxxx

Q : And what were you doing when your father returned at around 11:00
oclock in the evening?
A : We were all asleep, sir.

Q : And how did you come to know that he returned at around 11:00
P.M.?
A : My father suddenly held my hand, sir.

Q : And because of that, you were awakened?

A : Yes, sir.

Q : And what happened when you were awakened because your father
held your hand?
A : He covered my mouth, sir.

Q : And after covering your mouth, what else did he do?

A : He removed the lower portion of my clothes. Hinubuan po niya ako.

xxxx

Q : After removing your lady sando, what else did he do?

A : He laid himself on top of me, sir.

xxxx

Q : Now, what did he do to you when he was already on top of you?

A : He was kinakayog niya po ako.

Q : Aside from kinakayog, what else did he do?

A : He kissed my breast, sir.

Q : Aside from that, what else?

A : He likewise touched my private part, sir.

Q : When he was on top of you, do you know where was [sic] his penis
at that time?
A : Yes, sir.

Q : Where?
A : Into my vagina, sir.
Q : How did you come to know that the penis of your father was inside
your vagina?
A : I felt pain in my private part, sir.

Q : And do you know why you felt pain in your private part?
A : Yes, sir.

Q : Why?
A : His private part . (Thereafter witness is crying while uttering words:
I am afraid I might be killed by my father.) He held his penis into
my vagina. Thereafter, inserted it repeatedly into mine, sir.

Q : And you were able to actually feel his penis inside your vagina?
A : Yes, sir. [37]

xxxx

Criminal Case No. SC-7424

TP. Arcigal, Jr.:

Q : Now, you said also that you were raped on March 16, 1999, am I
correct?
A : Yes, sir.
Q : What time?
A : It was 3:30 oclock in the morning, sir.

xxxx

TP. Arcigal, Jr.:

Q Now, how did it happen, that third incident?
A I was able to run downstairs but when I was about to open the door,
he was able to hold my dress, sir.

Q : Was your father drunk at that time?

A : Yes, sir.

Q : How did you come to know?

A : His eyes were red and he was laughing at me while telling me: It is
your end. (Witness crying while answering the question.)

Q : Now, what happened when your father was able to hold your dress?
A : He carried me upstairs, sir.

Q : Was he able to carry you upstairs?

A : Yes, sir.

Q : What did he do, if any, when you were upstairs?

A : He removed my panty and shortpants, sir.
Q : After removing your shorts and panty, what else did he do?
A : No more but he kissed my vagina.

Q : Which part of your vagina did he kiss?

A : That part of my vagina with hold [sic].

Court:
Q : What about your upper garments at that time?
A : He did not remove it, Your Honor.

Q : What else did he do, aside from that?

A : Nothing more, just that.

Q : After kissing your vagina, what else happened, if any?

A : He again poked the knife on us, Your Honor.

Q : At that time, was your father naked or not?

A : Still with his clothes on, Your Honor.

xxxx

Q : For clarification, what else, if any, did your father do after your
father kissed your vagina?
A : Nothing more, merely that act, Your Honor.
 Q : You mean your father did not insert his penis to [sic] your vagina
anymore?
A : No more, Your Honor.

xxxx

TP. Arcigal, Jr.:

Q : Now, what did he use in kissing your clitoris?
A : His tongue, sir.

Q : How did you come to know that it was his tongue that he used?
A : It is because I saw him put out his tongue, sir.[38]

Verily, it is inconceivable and contrary to human experience for a daughter, who is

attached to her father by the natural bond of love and affection, to accuse him of
rape, unless he is the one who raped and defoliated her. [39] As we have pronounced
in People v. Canoy:[40]

It is unthinkable for a daughter to accuse her own father, to submit

herself for examination of her most intimate parts, put her life to public
scrutiny and expose herself, along with her family, to shame, pity or even
ridicule not just for a simple offense but for a crime so serious that could
mean the death sentence to the very person to whom she owes her life,
had she really not have been aggrieved. Nor do we believe that the victim
would fabricate a story of rape simply because she wanted to exact
revenge against her father, appellant herein, for allegedly scolding and
maltreating her.[41]
 In stark contrast with AAAs convincing recital of facts, supported as it was by
the testimonies of BBB and CCC, are appellants uncorroborated and shaky defenses
of denial and alibi. Nothing is more settled in criminal law jurisprudence than that
alibi and denial cannot prevail over the positive and categorical testimony and
identification of the complainant. [42] Alibi is an inherently weak defense, which is
viewed with suspicion because it can easily be fabricated. [43] Denial is an
intrinsically weak defense which must be buttressed with strong evidence of non-
culpability to merit credibility.[44]

The records disclose that not a shred of evidence was adduced by appellant
to corroborate his alibi. Alibi must be supported by credible corroboration from
disinterested witnesses, otherwise, it is fatal to the accused. [45] Further, for alibi to
prosper, it must be demonstrated that it was physically impossible for appellant to
be present at the place where the crime was committed at the time of its
commission.[46] By his own testimony, appellant clearly failed to show that it was
physically impossible for him to have been present at the scene of the crime when
the rapes were alleged to have occurred. Except for the first incident, appellant was
within the vicinity of his home and in fact alleged that he was supposedly even
sleeping therein on the occasion of the second and third incidents.

Appellants contention that AAAs accusations are clouded by her failure to

report the alleged occurrences of rape is unmeritorious. To begin with, AAA
categorically testified that she told her fathers niece about the incidents. However,
the latter doubted her, believing instead that appellant was not that kind of man.
AAAs subsequent attempt to report the incidents to the barangay turned out to be
futile as well as she was only able to speak with the barangay driver, who happened
to be appellants brother-in-law. She was likewise disbelieved by the latter. Her
disclosure of the rapes to a certain Menoy did not yield any positive result either.
Fearing for the lives of her grandparents, AAA decided not to tell them about the
incidents.[47]
 A child of thirteen years cannot be expected to know how to go about
reporting the crime to the authorities. [48] Indeed, We see how AAA must have felt
absolutely hopeless since the people around her were relatives of her father and
her attempts to solicit help from them were in vain. Thus, AAAs silence in not
reporting the incidents to her mother and filing the appropriate case against
appellant for over a month is sufficiently explained. The charge of rape is rendered
doubtful only if the delay was unreasonable and unexplained. [49] It is not beyond
ken that the child, living under threat from appellant and having been turned away
by trusted relatives, even accused by them of lying, would simply opt to just suffer
in silence thereafter. In People v. Gutierrez,[50] we held:

Complainants failure to immediately report the rape does not

diminish her credibility. The silence of a victim of rape or her failure to
disclose her misfortune to the authorities without loss of material time
does not prove that her charge is baseless and fabricated. It is not
uncommon for young girls to conceal for some time the assault on their
virtues because of the rapists threat on their lives, more so when the
offender is someone whom she knew and who was living with her. [51]

Appellant brands the trial judge as partial against him for propounding
leading questions to AAA. According to him, were it not for the lower courts and
the prosecutions biased leading questions, AAA would not have proven the
elements of the crimes charged.[52]

Appellants argument is not well-taken. It is the judges prerogative to ask

clarificatory queries to ferret out the truth. [53] It cannot be taken against him if the
questions he propounds reveal certain truths which, in turn, tend to destroy the
theory of one party.[54] After all, the judge is the arbiter and ought to be satisfied
himself as to the respective merits and claims of both parties in accord with the
stringent demands of due process. [55] Also, being the arbiter, he may properly
intervene in the presentation of evidence to expedite proceedings and prevent
unnecessary waste of time.[56]

Besides, jurisprudence explains that allegations of bias on the part of the trial
court should be received with caution, especially when the queries by the judge did
not prejudice the accused. The propriety of the judges questions is determined by
their quality and not necessarily by their quantity and, in any event, by the test of
whether the defendant was prejudiced by such questioning or not. [57] In the instant
case, the Court finds that on the whole, the questions propounded by the judge a
quo were but clarificatory in nature and that, concomitantly, appellant failed to
satisfactorily establish that he was prejudiced by such queries.

The matter of the purportedly defective Informations was properly

addressed by the Court of Appeals, pointing out that a close scrutiny of the
Informations would reveal that the words force and/or intimidation are specifically
alleged therein.[58] Even if these were not so, well-established is the rule that force
or intimidation need not be proven in incestuous cases. The overpowering moral
influence of a father over his daughter takes the place of violence and offer of
resistance ordinarily required in rape cases where the accused is unrelated to the
victim.[59]

Now, we turn to the determination of the crime for which appellant under
the third charge is liable and the corresponding penalty therefor. In the Brief for
the People, the Office of the Solicitor General (OSG) argues that all three (3) charges
of rape, including the rape committed on 16 March 1999 subject of Criminal Case
No. SC-7424, were proved beyond reasonable doubt. The court a quo held that it
was clear from the evidence that appellant merely kissed the vagina of AAA and
made no attempt of penetration, meaning penile penetration, and for that reason
found him guilty of acts of lasciviousness only. [60] Yet, in affirming the trial court,
the Court of Appeals did not find any categorical testimony on AAAs part that
appellant had inserted his tongue in her vagina, stressing instead that the mere
probability of such insertion cannot take the place of proof required to establish
the guilt of appellant beyond reasonable doubt for rape. [61]

The automatic appeal in criminal cases opens the whole case for
review,[62] as in this case. Thus, this Court is mandated to re-examine the vital facts
established a quo and to properly apply the law thereto. The two courts below
were both mistaken, as we note that AAA unqualifiedly testified on cross-
examination to appellants insertion of his tongue into her vagina, viz:

Court:
Q : On the third time you are [sic] allegedly raped, you said it happened
at 3:30 in the morning of March 16, 1999.
A : Yes, sir.

Q : And you said yesterday that he did not insert his pennies [sic] to [sic]
your vagina on March 16?
A : Yes, sir.

Q : What he did is he kissed your vagina?

A : Yes, sir.

Q : For how long did he kiss your vagina?

A : Two minutes, sir.

Q : What did he actually do when he kissed your vagina?

A : He kissed my vagina, thereafter he laughed and laughed.
 Q : You mean to tell the court when he kissed your vagina he used his
lips?
A : His lips and tongue, sir.

Q : What did he do?

A : He put out his tongue thereafter he inano the hole of my vagina.

Court:
Q : What did your father do with his tongue?
A : He placed it in the hole of my vagina.

Q : Did you feel pain?

A : Yes, sir.

Q : By just kissing your vagina you felt pain?

A : Yes, Your Honor.[63]

Notwithstanding the explicit testimony of AAA on the matter, this Court cannot find
appellant guilty of rape as proved, but of acts of lasciviousness only. In reaching this
conclusion, we take a route different from the ones respectively taken by the courts
below.

With the enactment of Republic Act No. 8353 (R.A. No. 8353), otherwise known as
the Anti-Rape Law of 1997,[64] the concept of rape was revolutionized with the new
recognition that the crime should include sexual violence on the womans sex-
related orifices other than her organ, and be expanded as well to cover gender-free
rape.[65] The transformation mainly consisted of the reclassification of rape as a
crime against persons and the introduction of rape by sexual assault [66] as
differentiated from the traditional rape through carnal knowledge or rape through
sexual intercourse.

Section 2 of the law provides:

Sec. 2. Rape as a Crime Against Persons. The crime of rape shall hereafter
be classified as a Crime Against Persons under Title Eight of Act No. 9815,
as amended, otherwise known as the Revised Penal Code. Accordingly,
there shall be incorporated into Title Eight of the same Code a new
chapter to be known as Chapter Three on Rape, to read as follows:

Article 266-A. Rape; When And How Committed. Rape Is Committed

1) By a man who shall have carnal knowledge of a woman under any of

the following circumstances:
(a) Through force, threat, or intimidation;
(b) When the offended party is deprived of reason or otherwise is
unconscious;
(c) By means of fraudulent machination or grave abuse of authority; and
(d) When the offended party is under twelve (12) years of age or is
demented, even though none of the circumstances mentioned above be
present.

2) By any person who, under any of the circumstances mentioned

in paragraph 1 hereof, shall commit an act of sexual assault by
inserting his penis into another persons mouth or anal orifice, or
 any instrument or object, into the genital or anal orifice of another
person.

Paragraph 1 under Section 2 of R.A. No. 8353, which is now Paragraph 1 of the new
Article 266-A of the Revised Penal Code, covers rape through sexual intercourse
while paragraph 2 refers to rape by sexual assault. Rape through sexual intercourse
is also denominated as organ rape or penile rape. On the other hand, rape by sexual
assault is otherwise called instrument or object rape, [67] also gender-free
rape,[68] or the narrower homosexual rape.[69]

In People v. Silvano,[70] the Court recognized that the fathers insertion of his tongue
and finger into his daughters vaginal orifice would have subjected him to liability
for instrument or object rape had the new law been in effect already at the time
he committed the acts. Similarly, in People v. Miranda,[71] the Court observed that
appellants insertion of his fingers into the complainants organ would have
constituted rape by sexual assault had it been committed when the new law was
already in effect.

The differences between the two modes of committing rape are the following:

(1) In the first mode, the offender is always a man, while in the second,
the offender may be a man or a woman;
(2) In the first mode, the offended party is always a woman, while in the
second, the offended party may be a man or a woman;
(3) In the first mode, rape is committed through penile penetration of
the vagina, while the second is committed by inserting the penis into
another persons mouth or anal orifice, or any instrument or object
into the genital or anal orifice of another person; and
 (4) The penalty for rape under the first mode is higher than that under
the second.

In view of the material differences between the two modes of rape, the first mode
is not necessarily included in the second, and vice-versa. Thus, since the charge in
the Information in Criminal Case No. SC-7424 is rape through carnal knowledge,
appellant cannot be found guilty of rape by sexual assault although it was proven,
without violating his constitutional right to be informed of the nature and cause of
the accusation against him.

However, following the variance doctrine embodied in Section 4, in relation to

Section 5, Rule 120, Rules of Criminal Procedure, appellant can be found guilty of
the lesser crime of acts of lasciviousness. Said provisions read:

SEC. 4. Judgment in case of variance between allegation and proof. When

there is a variance between the offense charged in the complaint or
information and that proved, and the offense as charged is included in or
necessarily includes the offense proved, the accused shall be convicted
of the offense proved which is included in the offense charged, or of the
offense charged which is included in the offense proved.

SEC. 5. When an offense includes or is included in another. An offense

charged necessarily includes the offense proved when
some of the essential elements or ingredients of the former, as alleged
in the complaint or information, constitutes the latter. And an offense
charged is necessarily included in the offense proved when the essential
ingredients of the former constitute or form part of those constituting
the latter.
Indeed, acts of lasciviousness or abusos dishonestos are necessarily included in
rape.[72]

In light of the passage of R.A. No. 9346, entitled An Act Prohibiting the Imposition
of Death Penalty in the Philippines,[73] the penalty of death can no longer be
imposed. Accordingly, the penalty meted out to appellant for rape through sexual
intercourse in Criminal Cases No. SC-7422 and SC-7423 is reduced in each case from
death to reclusion perpetua without eligibility for parole. [74] We affirm the
conviction of appellant in Criminal Case No. SC-7424 for acts of lascivousness but
modify the penalty imposed by the Court of Appeals instead to an indeterminate
sentence of imprisonment of six (6) months of arresto mayor as minimum to four
(4) years and two (2) months of prision correccional as maximum as neither
mitigating nor aggravating circumstances attended the commission of the crime.

With respect to the civil liability of appellant, we modify the award in Criminal Cases
No. SC-7422 and SC-7423 in light of prevailing jurisprudence. Therefore, appellant
is ordered to indemnify AAA, for each count of qualified rape, in the amount
of P75,000.00 as civil indemnity, P75,000.00 as moral damages, and P25,000.00 as
exemplary damages.[75] The award of damages in Criminal Case No. SC-7424 is
affirmed.

WHEREFORE, the Decision of the Court of Appeals in CA G.R. CR-HC No. 01926 is
AFFIRMED WITH MODIFICATIONS. In Criminal Cases No. SC-7422 and SC-7423,
appellant is found guilty beyond reasonable doubt of the crime of qualified rape
and sentenced to suffer the penalty of reclusion perpetua without eligibility for
parole and to pay the victim, AAA, in the amounts of P75,000.00 as civil
indemnity, P75,000.00 as moral damages, and P25,000.00 as exemplary damages
plus costs. In Criminal Case No. SC-7424, appellant is found guilty of the crime of
acts of lasciviousness and sentenced to suffer the indeterminate penalty of
imprisonment for six (6) months of arresto mayor as minimum to four (4) years and
two (2) months of prision correccional as maximum, and to pay AAA moral damages
in the amount of P30,000.00 plus costs.
SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 201572 July 9, 2014

PEOPLE OF THE PHILIPPINES, Appellee,

vs.
RAEL DELFIN, Appellant.

DECISION

PEREZ, J.:

This is an appeal1 assailing the Decision2 dated 29 April 2011 of the Court of Appeals (CA) in CA-
G.R. CR-H.C. No. 04160. In the said Decision, the CA affirmed, with modification, the conviction of
herein appellant Rael Delfin for murder under Article 248(1) of Act No. 3815 or the Revised Penal
Code (RPC).

The antecedents:

On the night of 27 September 2000, one Emilio Enriquez (Emilio)—a 51-year-old fisherman from
Navotas City—was killed after being gunned down at a store just across his home.

Suspected of killing Emilio was the appellant. On 13 March 2001, the appellant was formally charged
with the murder of Emilio before the Regional Trial Court (RTC) of Malabon. 3 The information reads:

That on or about the 27th day of November 2000, in Navotas, Metro Manila, and within the
jurisdiction ofthis Honorable Court, the abovenamed accused, armed with a gun, with intent to kill,
treachery and evident premeditation, did then and there willfully, unlawfully and feloniously attack,
assault and shoot with the said weapon one EMILIO ENRIQUEZ, hitting the victim on his chest,
thereby inflicting upon the victim gunshot wound, which caused his immediate death. CONTRARY
TO LAW.4

When arraigned, appellant entered a plea of not guilty. Trial thereafter ensued.

During trial, the prosecution presented the testimonies of one Joan Cruz (Joan) and a certain Dr.
Jose Arnel Marquez (Dr. Marquez).

Joan is an eyewitness tothe gunning of Emilio. She is also the live-in partner of the victim. The
substance of her testimony is as follows:5
 1. At about 10:45 p.m. of 27 September 2000, Joan was standing outside Emilio’s house at
R. Domingo St., Tangos, Navotas City. From there, Joan was able to see Emilio talking over
the telephone at a store just across his house. Also at the store during that time was the
appellant who was seated on a bench to the left of Emilio.

2. Joan then went inside Emilio’s house. Almost immediately after going inside the house,
Joan heard the sound of a gunshot. Joan rushed outside of the house and saw Emilio shot in
the head and sprawled on the ground. Joan then saw the appellant, now holding a gun, firing
another shot at Emilio.

3. Joan said that she was not aware of any previous misunderstanding between Emilio and
the appellant; neither did she observe any altercation brewing nor hear any word spoken
between Emilio and appellant prior to the shooting.

Dr. Marquez, on the other hand, is a Philippine National Police physician who examined post
mortemthe corpse of Emilio. He issued Medico-Legal Report No. M-608-00,6 which revealed that
Emilio died as a consequence of two (2) gunshotwounds: one that penetrated the left side of his
head and another that penetrated his chest. Dr. Marquez testified to affirm the contents of his report.

The defense, for its part, relied onthe testimonies of the appellant7 and a certain Rene Villanueva
(Rene).8

Appellant offered the alibithat he was fishing on the seas of Bataan on the date and time of the
supposed shooting. According to the appellant, he left for the seas at about 3:00 p.m. of 27
September 2000 and only returned at around 4:00 a.m. of the next day. Appellant also testified that
he was accompanied on this fishing trip by three (3) other individuals—one of which was Rene.

Rene initially corroborated on all points the testimony of appellant. However, Rene later admitted
thathe, the appellant and their other companions actually left for their fishing trip at 3:00 p.m. of 26
September 2000—not the 27th ; and returned to shore at 4:00 p.m. of 27 September 2000—not the
28th . Thus, at the date and time of the supposed shooting, Rene and the appellant were already in
Navotas City.

On 20 July 2009, the RTC rendered a Decision9 finding appellant guilty beyond reasonable doubt of
the offense of murder under Article 248(1) of the RPC.10 Based on its assessment and evaluation of
the evidence on record, the RTC was convinced that it was the appellant who killed Emilio and who
did so with the use of treachery. Accordingly, the RTC sentenced the appellant tosuffer the penalty
of reclusion perpetuaand to pay civil indemnity of ₱50,000.00 and another ₱50,000.00 as
consequential damages.

Aggrieved, appellant appealedthe RTC decision with the CA.

On 29 April 2012, the CA rendered a Decision affirming the conviction of the appellant. The CA,
however, deleted the award of ₱50,000.00 consequential damages and replaced it with an award of
₱50,000.00 moral damages.11Hence, this appeal.

In this appeal, appellant assails the validity of the information under which he was tried and
convicted. He specifically points out to the discrepancy between the date of the commission of the
murder as alleged in the information i.e., "on or about the 27th day of November 2000" and the one
actually established during the trial i.e., 27 September 2000. Appellant protests that the failure of the
information to accurately allege the date of the commission of the murder violated his right to be
properly informed of the charge against him and consequently impaired his ability to prepare an
intelligent defense thereon.

Appellant also insists on the credibility of his alibiover and above the version of the prosecution.

Lastly, appellant questions the appreciation of the qualifying circumstance of treachery against him.

OUR RULING

We deny the appeal.

Variance In the Date of the

Commission of the Murder as Alleged
in the Information and as Established
During the Trial Does Not Invalidate
the Information

We sustain the validity of the information under which the appellant was tried, and convicted,
notwithstanding the variance in the date of the commission of the crime as alleged inthe information
and as established during the trial.

In crimes where the date of commission is not a material element, like murder, it is not necessary to
allege such date with absolute specificity or certainty in the information. The Rules of Court
merelyrequires, for the sake of properly informing an accused, that the date of commission be
approximated:12

Sec. 6. Sufficiency of complaint or information.– A complaint or information is sufficient if it states the

name of the accused; the designation of the offense given by the statute; the acts or omissions
complained of as constituting the offense; the name of the offended party; the approximate date of
the commission of the offense; and the place where the offense was committed.

When an offense is committed by more than one person, all of them shall be included in the
complaint or information.

Sec. 11. Date of commission of the offense. - It is not necessary to state in the complaint or
information the precise date the offense was committed except when it is a material ingredient of the
offense. The offense may be alleged to have beencommitted on a date as near as possible to the
actual date of its commission. (Emphasis supplied).

Since the date of commission of the offense is not required with exactitude, the allegation in an
information of a date of commission different from the one eventually established during the trial
would not, as a rule, be considered as an error fatal to prosecution.13 In such cases, the erroneous
allegation in the information is just deemed supplanted by the evidence presented during the trial14 or
may even be corrected by a formal amendment of the information. 15

The foregoing rule, however, is concededly not absolute. Variance in the date of commission of the
offense as alleged in the information and as established in evidence becomes fatal when such
discrepancy is so greatthat it induces the perception that the information and the evidence are no
longer pertaining to one and the same offense. In this event, the defective allegation in the
information is not deemed supplanted by the evidence nor can it be amended but must be struck
down for being violative of the right of the accused to be informed of the specific charge against him.
Such was this Court’s ruling in the case of People v. Opemia.16

In Opemia, an information for theft of large cattle committed on 18 June 1952 was filed against four
(4) accused. After all of the accused entered a plea of not guilty and during trial, the prosecution
adduced evidence to the effect that the purported theft was committed in July of 1947. The
prosecution thereafter moved for the amendment of the information to make it conform to the
evidence with respect to the date of theft. The trial court rejected the motion and instead dismissed
the information altogether. The dispute reaching us in due course, we sustained the trial court’s
dismissal of the information:

The amendment proposed in the present case consists in changing the date of the commission of
the crime charged from June 18, 1952 to July, 1947. In not permitting the amendment the learned
trial Judge said:

"It is a cardinal rule in criminalprocedure that the precise time at which an offense was committed
need not be alleged in the complaint or information, but it is required that the act be alleged to have
been committed at any time as near to the actual date at which the offense was committed as the
information or complaint would permit (Rule 106, section 10). The reason for this rule is obvious. It is
to apprise the accused of the approximate date when the offense charged was committed in order to
enable him to prepare his defense and thus avoid a surprise. In the case at bar, the proof shows that
the carabao was lost on July 25, 1947 and not on June 18, 1952 as alleged in the information. The
period of almost five years between 1947 and 1952 covers such a long stretch of time that one
cannot help but beled to believe that another theft different from that committed by the Defendantsin
1952 was also perpetrated by them in 1947. Under this impression the accused, who came to court
prepared to face a charge of theft of large cattle allegedly committed by them in 1952, were certainly
caught by sudden surprise upon being confronted by evidence tending to prove a similar offense
committed in 1947. The variance is certainly unfair tothem, for it violates their constitutional right to
be informed before the trial of the specific charge against them and deprives them of the opportunity
to defend themselves. Moreover, they cannot be convicted of an offense with which they are not
charged.

"It is also a cardinal rule in criminal procedure that after the Defendanthas entered his plea, the
information or complaint may be amended only as to all matters of form when the same can be done
without prejudice tothe rights of the Defendant(Rule 196, section 13). An amendment that would
change the date of the commission of the offense from 1947 to 1952 is certainly not a matter of form.
The difference in date could not be attributed to a clerical error, because the possibility of such an
error is ruled out by the fact that the difference is not only in the year, but also in the month and in
the last two digits of the year.It is apparent that the proposed amendment concerns with material
facts constituting the offense, and consequently it would be prejudicial to the substantial rights of the
Defendants."

His Honor has we think adduced good reasons for considering the amendment as referring to
substance and not merely to form. But even supposing it to be the contrary, its allowance, after the
Defendantshad pleaded, was discretionary with the court and would be proper only if it would not
prejudice their rights. We are not prepare to say that the court did not make good use of that
discretion in disallowing the amendment, considering that the variance sought to be introduced
thereby would appear to be really unfair to the Defendants, for as clearly explained by the court "it
violates their constitutional right to be informed before the trial of the specific charge against them
and deprives them of the opportunity to defend themselves."17 (Emphasis supplied).

In this case, however, we find applicable, not the exception in Opemia, but the general rule.
Despite their disparity as to the date of the alleged murder, we believe that there is no mistaking that
both the information and the evidence of the prosecution but pertain to one and the same offense
i.e., the murder of Emilio. We find implausible the likelihood that the accused may have been caught
off-guard or surprised by the introduction of evidence pointing to commission of the murder on 27
September 2000, considering that all documentary attachments to the information (such as the
Resolution18 of the Office of the City Prosecutor of Malabon-Navotas sub-station and the Sworn
Statement19 of Joan) all referred to the murder as having been committed on that date. Indeed,
appellant never objected to such evidence during the trial and was even able to concoct an
intelligent alibiin direct refutation thereof.

What clearly appears to this Court, on the other hand, is that the inaccurate allegation in the
information is simply the product of a mere clerical error. This is obvious from the fact that, while all
its supporting documents point to the murder ashaving been committed on the 27th of
September2000, the information’s mistake is limited only to the month when the crime was
committed.20 Such an error is evidently not fatal; it is deemed supplanted by the evidence presented
by the prosecution.

Hence, we sustain the information for murder, under which the appellant was tried and convicted, as
valid.

Appellant’s Defense of Alibi

Unavailing; Appellant Properly
Convicted of Murder

We also find unavailing the appellant’s insistence on the credibility of his alibi. On this point, we
1avvphi1

quote with approval the following discourse of the CA, which we find to be consistent with time-
honored jurisprudence:21

Time and again, it has been stressed that the factual findings of the trial court, its calibration of the
testimonies of the witnesses, and its assessment of their probative weightis given high respect, if not
conclusive effect, unless it is ignored, misconstrued, misunderstood, or misinterpreted cogent facts
and circumstances of substance which, if considered, will alter the outcome of the case.22

As correctly found by the trial court, the testimony of prosecution witness, Joan, was clear, candid,
straightforward, positive and credible, as against the denial and alibi of the [appellant]. She positively
identified the [appellant] as the perpetrator of the crime. x x x.

It should be emphasized that the testimony of a single eye-witness, if positive and credible, is
sufficient to support a conviction even in a charge of murder.23 Considering that Joan’s account of
how the [appellant] killed [Emilio] was clear, credible, and positive, there is, thus, no compelling
reason to disturb the trial court’s reliance on her testimony.

As to the [appellant’s] defense ofdenial and alibi, the same are unavailing and worthless in the face
of the positive identification by the prosecution’s witness x x x.

x x x. Moreover, for the defense of alibi to prosper, it must be proven that the [accused] was at some
other place at the time the crime was committed and that it was physicallyimpossible for him to be at
the locus criminisat the time [the offense was committed].24 x x x.

At bench, the [appellant] has not shown the impossibility of his committing the crime as even, Rene,
the witness who was supposed to corroborate his alibi, admitted that theywent back home at 4:00
o’clock in the morning of September 27, 2000 and were already at Navotas City at the time the
incident occurred. Thus, it was certainly possible for him to be present at the crime scene despite his
allegations to the contrary. Hence, based on all the foregoing evidence, he is, without a doubt, the
perpetrator of the crime.

Anent the appreciation of the qualifying circumstance of treachery against the appellant, we find it to
befully justified by the evidence on record. Again, we approve of the CA’s observations on this
matter:

Concededly, the [appellant’s] attack on the unarmed [Emilio] was sudden, unprovoked, unexpected
and deliberate. Before the attack was made, [Emilio] was merely conversing with another on the
phone. He was undoubtedly in no position and without any means to defend himself. By all
indications, [Emilio] was left with no opportunity to evade the gunshots, to defend himself, or to
retaliate. For this reason, the [RTC] correctly appreciated treachery as a circumstance to qualify the
offense as Murder.25

All in all, we find no error inthe conviction of the appellant.

Recoverable Damages

In line with prevailing jurisprudence,26 we increase the amount of civil indemnity and moral damages
payable by the appellant from ₱50,000.00 to ₱75,000.00.

In addition to the foregoing, we require the appellant to also pay exemplary damages in the amount
₱30,000.00.27

The civil indemnity, moral damages and exemplary damages payable by the appellant are subject to
interest at the rate of six percent (6%) per annum from the finality of this decision until fully paid.

WHEREFORE, premises considered, the Decision dated 29 August 2012 of the Court of Appeals in
CA-G.R. CR-H.C. No. 04160 is hereby AFFIRMED with the following MODIFICATIONS: (1) that the
amount of civil indemnity is increased from ₱50,000.00 to ₱75,000.00; (2) that the amount of moral
damages is increased from ₱50,000.00 to ₱75,000.00; and (3) that the appellant must pay, in
addition to civil indemnity and moral damages, exemplary damages in the amount of ₱30,000.00.
The civil indemnity, moral damages and exemplary damages payable by the appellant are subject to
interest at the rate of six percent ( 6%) per annum from the finality of this decision until fully paid.

SO ORDERED.