G.R. No. 106695. August 04, 1994
EDWARD T. MARCELO, DIONILO D. MARFIL, CELIA C. CABURNAY, AND DANIEL T. PASCUAL, PETITIONERS, VS. THE COURT OF APPEALS, THE PEOPLE OF THE PHILIPPINES, HON. PEDRO T. SANTIAGO, IN …
DAVIDE, JR., J.:
a criminal case by the trial court, which relied on the reversal by the Review
Committee of the Office of the City Prosecutor of the investigating
prosecutor’s resolution to file the information, bars the filing of a new
information for the same offense after the Secretary of Justice reversed the
resolution of the review committee.
This case was originally assigned to the Third Division but was
referred to the Court en banc in view of the novelty and importance
of the issue.
The procedural antecedents of this case, as disclosed by the
original records of Criminal Case No. Q-91-21285[1] and
Criminal Case No. Q-92-28104, which we required to be transmitted to this
Court, as well as that of the Court of Appeals in CA-G.R. SP No. 27681, are
herein set forth.
In a complaint-affidavit sworn to on 18 March 1991 and filed with
the Office of the City Prosecutor of Quezon City, Jose T. Marcelo charged the
petitioners with falsification of public documents committed by forging the
signature of Jose P. Marcelo, Sr. in six voting trust agreements (VTA’s).[2]
Submitted in support of the affidavit-complaint were the findings of the
National Bureau of Investigation (NBI) and of the PC/PNP Crime Laboratory that
the signature on the VTA’s purporting to be that of Jose P. Marcelo, Sr. and
the specimen or standard signature of the latter were not written by one and
the same person. The VTA’s[3]
were purportedly executed in Quezon City and acknowledged before petitioner
Dionilo Marfil, a notary public.
After conducting a preliminary investigation, Assistant City
Prosecutor Domingo Israel found “more than sufficient evidence” of the forgery
of the signature of Jose P. Marcelo, Sr., as “found and concluded by two (2)
national police agencies, the NBI and PCCL,” and recommended the filing of the
case in court.[4]
On 30 May 1991, an information for falsification of public
documents was filed with the Regional Trial Court (RTC) of Quezon City,
docketed as Criminal Case No. Q-91-21285, and raffled to Branch 96[5]
thereof (hereinafter Bersamin court).
On 6 June 1991, the petitioners filed with the Office of the City
Prosecutor of Quezon City a Motion for Review seeking the deferment of the
filing of the information — or if one had been filed, the suspension of the
criminal proceedings — and the reversal of the Israel resolution.[6]
On 10 June 1991, warrants for the arrest of the petitioners were
issued,[7]
and all of them except Edward Marcelo posted bail.[8]
Marcelo surrendered to the court and posted bail on 29 July 1991.[9]
On 13 June 1991, the petitioners, in a Manifestation and Motion,
informed the Bersamin court of the filing of their Motion for Review and prayed
that further proceedings in the case be suspended until the resolution of the
Motion for Review.[10]
On 14 June 1991, Assistant City Prosecutor Enrico Bringas, the prosecutor
assigned to the case, filed a motion to defer the arraignment until the
resolution of the Motion for Review,[11]
which the Bersamin court granted in its Order of 10 July 1991. The Bersamin court, however, reset the
arraignment to 28 August 1991.
Then, on 27 August 1991, the petitioners filed an urgent motion
to defer the arraignment on 28 August 1991 until the resolution of their Motion
for Review.[12]
Acting thereon, and over the vigorous opposition of the private prosecutor,
Judge Bersamin issued an order on 28 August 1991[13]
resetting the arraignment to 8 October 1991 and directing the City Prosecutor
of Quezon City “to conclude the pending review of the resolution of the filing
Prosecutor Domingo Israel and to render a report of the results of the review
on or before” 8 October 1991.
Believing that no resolution on the Motion for Review would be
released before 8 October 1991 and considering that petitioner Marcelo was
abroad, the petitioners filed on 3 October 1991 a motion for the cancellation
of the arraignment on 8 October 1991 and for its resetting to “early November
1991.”[14]
There is no showing that this motion was acted upon. The records of Criminal Case No. Q-91-21285
were thereafter destroyed by a fire on 16 October 1991 but were subsequently reconstituted
on 9 December 1991.[15]
On 15 November 1991, the Review Committee handed down a
resolution,[16]
approved by Acting City Prosecutor Lydia Navarro on 29 November 1991,
recommending the reversal of the Israel resolution and the withdrawal of the
information in Criminal Case No. Q-91-21285. Then on 5 December 1991, the petitioners filed a Manifestation and
Motion informing the Bersamin court of the reversal and praying for the
dismissal of the case.[17] This
was followed on 10 December 1991 by the motion of Assistant City Prosecutor
Conrado M. Jamolin which prayed for the withdrawal of the information in
Criminal Case No. Q-91-21285 because of the resolution of the review committee.[18]
The private prosecutor opposed this motion.[19]
In the meantime too, specifically on 10 December 1991, the
private complainant filed with the Secretary of Justice an appeal from
the 15 November 1991 resolution of the Review Committee.[20]
On 13 December 1991, Judge Bersamin, agreeing with the findings
and conclusions of the Review Committee, issued an order,[21]
the dispositive portion of which reads:
“ACCORDINGLY, the
Motion to Dismiss of the accused and the Motion to Withdraw Information of the
public prosecutor are hereby granted and this case is hereby dismissed without
costs.”
On 27 January 1992, then Secretary of Justice Silvestre R. Bello
III handed down a resolution granting the complainant’s appeal, reversing the
15 November 1991 Resolution of the Review Committee, and ordering the filing of
a new information.[22]
The new information,[23]
signed by Assistant City Prosecutor Ralph Lee, was filed on 5 February 1992 pursuant to the resolution of
Secretary Bello, docketed as Criminal Case No. Q-92-28104, and then raffled to Branch 101 presided over by Judge
Pedro Santiago (hereinafter Santiago court) of the RTC of Quezon
City. The petitioners posted bail.[24]
Thereafter, the following incidents took place in the said case:
1.
On 3 March 1992, the petitioners filed a Motion to
Quash the Information on the ground that the dismissal of Criminal Case No. Q-91-21285 was already final and that
the appeal subsequently taken by the private prosecutor to and the resolution
thereon by the Secretary of Justice are null and void and cannot be a valid
basis for any authority to file the new information or for the court to acquire
jurisdiction over the case.[25]
2.
On 20 March
1992, Judge Santiago issued an
order denying the motion to quash on the principal ground that it was not based
on any of the grounds enumerated in Section 3, Rule 117 of the Rules of Court.[26]
3.
On 1 April 1992, the petitioners filed a motion to
reconsider the 20 March 1992 Order alleging therein that their
motion to quash was based on the ground that the officer who filed the
information had no authority to do so and had acted pursuant to an order of the
Secretary of Justice which is void for having been given without or in excess
of jurisdiction under the doctrine laid
down in Crespo vs. Mogul[27] that the Secretary of Justice cannot
interfere with the trial court’s disposition of a criminal case after it had
taken cognizance thereof.[28]
4.
On 2 April
1992, Judge Santiago denied the motion to reconsider and reset the arraignment
to 7 April 1992.[29]
Thus, the petitioners filed with the Court of Appeals on 3 April
1992 a special civil action for certiorari to set aside the order of the
Santiago court denying the motion to quash, which was docketed as CA-G.R. SP
No. 27681. They alleged therein that
the “respondent Judge evaded his positive legal duty when he disregarded the
consistent rulings of the Honorable Supreme Court that once an information has
already been filed in court, the court acquires complete jurisdiction over the
case and the Secretary of Justice may no longer interfere with the court’s
disposition of the case.”[30]
In its decision of 11 June 1992,[31] the
Court of Appeals denied due course to the petition. It found it to be “devoid of merit” because
“certiorari and prohibition are not
the correct remedies against an order denying a motion to quash. The defendant should instead, go to trial
without prejudice on his part to present the special defenses he had invoked in
his motion and, if after trial on the merits, an adverse decision is rendered
to appeal therefrom in the manner authorized by law.”[32]
In the meantime, however, the Santiago court, not having been
enjoined by the Court of Appeals, continued with the proceedings in Criminal
Case No. Q-92-28104. On 7 April 1992,
it arraigned petitioners Caburnay, Pascual, and Marfil, entered a plea of not
guilty for them, and reset the arraignment of petitioner Edward T. Marcelo, who
was then abroad, to 28 April 1992.[33] On
the latter date, Marcelo was arraigned and a plea of not guilty was entered for
him.[34]
Subsequently, the court received the testimonies of the following witnesses for
the prosecution: Jose Marcelo, Jr., who
testified on direct examination and cross-examination on 9 June 1992, 16 June
1992, and 14 July 1992; Emmanuel Guzman, who testified on 23 July 1992, 10
August 1992, and 20 August 1992; Aida Gaetos, who testified on 10 August 1992;
and Francisco Cruz, Lita Wells, Evelyn M. Eugenio, and Helier Penaranda, who
testified on 13 August 1992.
On 31 August 1992, the Court of Appeals denied the petitioners’
motion to reconsider the decision of 11 June 1992.[35]
Hence, the instant petition which reiterates the grounds and the
arguments raised before the Court of Appeals.
The petition is without merit.
The Court of Appeals correctly dismissed the petitioners’ special
civil action for certiorari not necessarily for the reason it
relied upon, i.e., “certiorari and prohibition are not the correct
remedies against an order denying a motion to quash,” but because the Santiago
court did not act without or in excess of jurisdiction or with grave abuse of
discretion in denying the motion to
quash. It is settled that if a court,
in denying the motion to quash (or a motion to dismiss), acts without or in
excess of jurisdiction or with grave abuse of discretion, certiorari or prohibition lies.[36]
The denial by the Santiago court of the motion to quash suffers from no fatal infirmity. The petitioners’ contention that the
prosecutor did not have the authority to file the information because he acted
upon an order of the Secretary of Justice which is void in the light of Crespo vs. Mogul[37] is
untenable. In the Crespo case, this Court ruled:
“The rule therefore in this jurisdiction is that once a complaint
or information is filed in Court any disposition of the case as its dismissal
or the conviction or acquittal of the accused rests in the sound discretion of
the Court. Although the fiscal retains
the direction and control of the prosecution of criminal cases even while the
case is already in Court he cannot impose his opinion on the trial court. The Court is the best and sole judge on what
to do with the case before it. The
determination of the case is within its exclusive jurisdiction and
competence. A motion to dismiss the
case filed by the fiscal should be addressed to the Court who has the option to
grant or deny the same. It does not
matter if this is done before or after the arraignment of the accused or that
the motion was filed after a reinvestigation or upon instructions of the
Secretary of Justice who reviewed the records of the investigation.
In order therefor[e] to avoid such a situation whereby the opinion
of the Secretary of Justice who reviewed the action of the fiscal may be
disregarded by the trial court, the Secretary of Justice should, as far as
practicable, refrain from entertaining a petition for review or appeal from the
action of the fiscal, when the complaint or information has already been filed
in Court. The matter should be left
entirely for the determination of the court.”[38]
Nothing in the said ruling forecloses the
power or authority of the Secretary of Justice to review resolutions of his
subordinates in criminal cases. The
Secretary of Justice is only enjoined to refrain as far as practicable from
entertaining a petition for review or appeal from the action of the prosecutor
once a complaint or information is filed in court. In any case, the grant of a motion to dismiss, which the
prosecution may file after the Secretary of Justice reverses an appealed
resolution, is subject to the discretion of the court.
Insofar as this case is concerned, the procedure on appeals from
the resolution of the investigating prosecutor (which was duly approved by the
Office of the City Prosecutor of Quezon City) as well as that from the
resolution of the Review Committee was governed by Department Circular No. 7,
dated 25 January 1990, of the Department of Justice. This was superseded by Department Order No. 223, dated 30 June
1993. Pursuant to Section 1 of
Department Circular No. 7, only resolutions of the Chief State Prosecutor, the
Regional State Prosecutor, and the Provincial or City Prosecutor dismissing a
criminal complaint may be appealed to the Secretary of Justice, except as
otherwise provided in Section 4 thereof. Under the latter, a resolution of the aforesaid prosecutors finding
probable cause may be appealed only upon a showing of manifest error or grave
abuse of discretion; however, even with such showing, the appeal shall not be
entertained if the appellant had already been arraigned, and if the arraignment
took place during the pendency of the appeal, the appeal shall be dismissed motu proprio by the Secretary of Justice.
In this case, the petitioners did not at once appeal to the
Secretary of Justice from the resolution of Assistant Prosecutor Israel. Instead, they initially filed the Motion for
Review.
From the foregoing antecedents, it is clear that the Bersamin
court knew and took cognizance of the Motion for Review, deferred the
arraignment of the accused until the resolution of the said motion, and even
directed the Office of the City Prosecutor “to conclude the pending review …
and to render a report of the results of the review on or before” 8 October
1991. In thus recognizing and allowing
the Motion for Review, the Bersamin court deferred to the authority of the
prosecution arm of the government to resolve with finality the issue of whether
or not the information should have been filed. The Review Committee’s resolution was of course not final because under
Department Circular No. 7 both the offended party and the petitioners could
still appeal therefrom to the Secretary of Justice under Section 1 and Section
4 thereof. The Bersamin court knew or
was expected to know, since it had to take judicial notice of Department
Circular No. 7, that the resolution of the Review Committee was not final. The offended party had, in fact, appealed
from the said resolution to the Secretary of Justice on 10 December 1991.
Consequently, the 5 December 1991 Manifestation and Motion of the
petitioners praying for the dismissal of the case and the 10 December 1991 motion
of Assistant City Prosecutor Jamolin asking for the withdrawal of the
information were prematurely filed, because as to the first, the period of the
offended party to appeal from the resolution to the Secretary of Justice had
not yet lapsed or even begun, there being no showing of the date the offended
party received a copy thereof; and, as to the second, an appeal had in fact
been filed on 10 December 1991. Prudence, if not wisdom or at the very least respect for the authority
of the prosecution agency to which the Bersamin court deferred, dictated
against a favorable action on the Review Committee’s resolution until the
denial of the appeal or the affirmance of the resolution by the Secretary of
Justice. The Bersamin court acted then
with precipitate or undue haste in issuing the 13 December 1991 Order granting
the petitioners’ motion to dismiss and Prosecutor Jamolin’s motion to withdraw
the information in Criminal Case No. Q-91-21285.
Accordingly, we rule that the trial court in a criminal case which
takes cognizance of an accused’s motion for review of the resolution of the
investigating prosecutor or for reinvestigation and defers the arraignment
until resolution of the said motion must act on the resolution reversing the
investigating prosecutor’s finding or on a motion to dismiss based thereon only
upon proof that such resolution is already final in that no appeal was taken
therefrom to the Department of Justice.
It may be observed that the granting of both motions is a serious
contradiction in that upon withdrawal of the information, which is the logical
consequence of the grant of the motion to withdraw, there no longer remained
any case to dismiss. In fine, the
withdrawal of the information rendered moot the motion to dismiss.
The withdrawal of the information in Criminal Case No. Q-91-21285,
or even the dismissal of the said case as decreed by the Bersamin court, did
not bar the filing of a new information as directed by the Secretary of Justice
in his Resolution of 27 January 1992. No jeopardy had attached as a result of the earlier termination of
Criminal Case No. Q-91-21285 because the petitioners therein had not been
arraigned and had, in fact, asked for its dismissal for a cause other than that
which would constitute double jeopardy. On the contrary, the filing of the new information in Criminal Case No.
Q-92-28104 straightened the course of criminal justice which had earlier gone
awry due to the precipitate action of the Bersamin court. Nor may it be said that the prosecutor who
filed the information had no authority to do so.
The Santiago court, therefore, correctly denied the petitioners’
motion to quash in Criminal Case No. Q-92-28104 and the Court of Appeals
committed no reversible error in dismissing the petition in CA-G.R. SP No.
27681.
It must also be noted that the petitioners had already been
arraigned in Criminal Case No. Q-92-28104 and had participated in the trial on
the merits by attending the reception of the testimonies of the prosecution
witnesses and even terminating the cross-examination of some of them.
Before we end, a few words are in order by way of comment on the
emphasis placed by our brother, Mr. Justice Jose A.R. Melo, in his dissenting
opinion, on the filing with the Office of the Provincial Fiscal of Rizal in July
1988 by Mrs. Lilia S. Wells, first cousin of Edward Marcelo and Jose Marcelo,
Jr., of a criminal complaint for falsification of public documents involving
the same VTA’s against petitioners Marcelo and Marfil, the dismissal thereof on
29 March 1989 by the Rizal Provincial Prosecutor for insufficiency of evidence,[39]
and the resolution of the Department of Justice of 27 August 1989 dismissing
the petition for review of the dismissal. The clear suggestion is that the filing of the second criminal complaint
with the Office of the City Prosecutor of Quezon City is persecutive and should
not be countenanced by this Court.
Our reading of the petitioners’ Position Paper in the criminal
complaint filed against them by Jose Marcelo, Jr. with the City Prosecutor’s
Office of Quezon City (I.S. No. 91-3069)[40], the motion for review, the motion to
quash the information in Criminal Case No. Q-92-28104, the petition in CA-G.R.
SP No. 27681, and the petition in this case does not disclose any claim by the
petitioners that they are the victims of a vexatious or persecutive
action. In the first mentioned
pleading, they simply stated that the “sole issue in this case [is] whether or
not, on the basis of the evidence submitted by the parties, there is sufficient
ground to engender a well founded belief that the crimes of Falsification of
Public Documents and Use thereof have been committed and that Respondents are
probably guilty thereof and should be held for trial.”[41]
The first complaint was filed by Mrs. Wells alone who was unable to present the
findings of the questioned documents examiner of the NBI and of the PC/PNP
Crime Laboratory on the alleged forgery of the signatures of Jose Marcelo, Sr.
on the questioned VTA’s. The latter and
the specimen or standard signature of Jose Marcelo, Sr. were submitted to these
agencies only in January and February 1991, respectively.[42] The second complaint was filed by Jose Marcelo,
Jr. who, by then, had already obtained the findings of the said agencies.
WHEREFORE, the instant petition is DENIED. The
challenged decision of the Court of Appeals in CA-G.R. SP No. 27681 is hereby
AFFIRMED.
SO ORDERED.
Narvasa, C.J.,
Cruz, Feliciano, Padilla, Regalado, Bellosillo, and
Mendoza, JJ., concur.
Bidin, Quiason,
Puno, and Vitug JJ., joins JJ. Romero
and Melo in their dissenting opinion.
Kapunan, join J. Romero in
her dissenting opinion.
[1]
The Original Records (OR) in Criminal Case No. Q-91-21285 were burned during
the fire which occurred on 16 October 1991 at the Vargas Building, Kalayaan
Street, Quezon City, but were later reconstituted.
[2]
Id., 7-8.
[3]
Id., 9-20.
[4]
Id., 180-183.
[5]
It was then presided by Hon. Judge Lucas P. Bersamin.
[6]
OR, Criminal Case No. Q-91-21285, 189-207.
[7]
Id., 208-211.
[8]
Id., 212.
[9]
Id., 270.
[10]
Id., 212-213.
[11]
Id., 235.
[12]
OR, Criminal Case No. Q-91-21285, 271-273.
[13]
Id., 274.
[14]
Id., 277-279.
[15]
Id., 304-305.
[16]
Id., 315-317.
[17]
OR, Criminal Case No. Q-91-21285, 311-313.
[18]
Id., 307.
[19]
Id., 318-323.
[20]
Page 4, Comment of the public respondent; Rollo, 143.
[21]
OR, Criminal Case No. Q-91-21285, 333-336.
[22]
Id., Criminal Case No. 92-28104, 11-14.
[23]
OR, Criminal Case No. Q-92-28104, 1-2.
[24]
Id., 65-72.
[25]
Id., 76-84.
[26]
Id., 112-113.
[27]
151 SCRA 462 [1987].
[28]
OR, Criminal Case No. Q-92-28104, 116-122.
[29]
Id., 126.
[30]
Id., CA-G.R. SP No. 27681, 1-26.
[31]
Id., 176-181. Per Associate
Justice Pacita Canizares-Nye, concurred in by Associate Justices Arturo B.
Buena and Justo P. Torres.
[32]
Id., 180; Rollo, 42.
[33]
OR, Criminal Case No. Q-92-28104, 132.
[34]
Id., 283.
[35]
Id., CA-G.R. SP No. 27681,
205.
[36]
Lopez vs. City Judge, 18 SCRA 616 [1966]; Tacas vs. Cariaso, 72
SCRA 527 [1976]; People vs. Ramos, 83 SCRA 1 [1978]; Newsweek, Inc. vs.
Intermediate Appellate Court, 142 SCRA 171 [1986].
[37]
151 SCRA 462 [1987].
[38]
Id. at 471-472. See also Sta.
Rosa Mining Co. vs. Assistant Provincial Fiscal, 153 SCRA 367 [1987];
Marquez vs. Alejo, 154 SCRA 302 [1987]; Dungog vs. Court of
Appeals, 159 SCRA 145 [1988]; Balgos vs. Sandiganbayan, 176 SCRA 287
[1989]; Velasquez vs. Undersecretary of Justice, 182 SCRA 388 [1990].
[39]
Annex “C” of Petition.
[40]
OR, Criminal Case No. Q-91-21285, 164-179.
[41]
Id., 169.
[42]
OR, Criminal Case No. Q-91-21285, 33-39.
250
6 pt
6 pt
0
3
DISSENTING OPINION
MELO, J.:
I have to express dissent, regrettably, to the majority opinion
penned by Mr. Justice Hilario G. Davide, Jr., and would rather concur
wholeheartedly in the opinion penned by Mme. Justice Flerida R.
Pineda-Romero. The highest traditions
of this Court are best expressed in those cases where, without deviating from
time-tested procedures in the prosecution of criminal cases, its latitudinarian
approach in the protection of civil rights is manifested.
I agree that a stereotyped,
mechanical, and unvarying invocation of the doctrine that appeal, not certiorari
or prohibition, is the correct remedy to the denial of a motion to quash ignores fundamental principles of fairness and
justice. Rules of procedure are
intended to safeguard the interests of justice. Whether or not the prosecution of a criminal case should proceed
should not be determined purely on procedural points.
This Court in Acebedo
vs. Sarmiento (36
SCRA 247 [1970]) stated that “the right to a speedy trial means one free
from vexatious, capricious, and oppressive delays, its salutary objective being
to assure that an innocent person may be free from the anxiety and expense of a
court litigation …” It is not alone the right of an accused to have his
guilt determined by a court of justice within the shortest possible time
compatible with the presentation and consideration of legitimate defenses. Equally important is not to be brought to
court at all, to be spared the embarrassment, anxiety, and expense of court
litigation in proper cases. We stated
in Acebedo that the remedy for the
non-observance of the above rule is habeas corpus where the accused is already
incarcerated or by certiorari, prohibition, or mandamus for the
final dismissal of the case. This is
precisely what the decision is all about.
When a case like the instant petition, with all its attendant
facts and circumstances, reaches us, it is not in the best traditions of the
Supreme Court to automatically approach it in the impulsive and unvarying
methodology of a criminal trial court and declare that the issues raised are
matters of defense to be interposed only at the trial.
Indeed, not infrequently, this court has departed from the
general rule and, taking cognizance of petitions for certiorari involving
orders denying motions to quash on the ground that it would be unfair and
unjust, and violative of the constitutional rights of an accused, to require
him to undergo trial under an information which is legally flawed (Yap vs. Inciso, 105 Phil. 1307
[1959]; Pineda vs. Bartolome, 95 Phil. 930 [1954]; Villa vs. Ibanez, 88 Phil. 402 [1951]; Mead vs. Angel, 115 SCRA 256 [1982]), and so as to spare the courts from
unnecessarily spending precious time and energy and to save the accused from
the inconvenience, anxiety, and embarrassment, let alone the expenditure of
effort and money in undergoing a trial for a case the proceedings in which
could possibly be annulled for want of, or excess in, or with grave abuse of,
jurisdiction (Villa vs. Ibanez, supra, and Mead vs. Angel,
supra).
The inhibiting circumstances to the application of the doctrine
that certiorari and prohibition will not lie against an order denying a
motion to quash appear on record in this case as follows:
As stated, the criminal information for alleged falsification of
public documents against petitioners involves the same charges which had been
twice investigated, passed upon, and twice dismissed, for lack or insufficiency
of evidence, and based on a positive finding of the genuineness and due
execution by Jose Marcelo, Sr. of the Voting Trust Agreements in favor of
Edward.
The First Case (I.S. No.
88-5729)
In July 1988, a criminal complaint against Edward and Marfil
(I.S. No. 88-5729) for falsification of public documents and use thereof was
filed by Mrs. Lilia S. Wells, a first cousin of both Jose, Jr. and Edward
Marcelo. The documents alleged to have
been falsified and involved were the six (6) Voting Trust Agreements executed
by Jose P. Marcelo, Sr. in favor of Edward.
In a resolution dated March 29, 1989, Rizal Provincial Prosecutor
Mauro M. Castro, dismissed for insufficiency of evidence I.S. No. 88-5729
(Annex “C”, Petition). The
Provincial Prosecutor found that Jose P. Marcelo, Sr. actually did sign
the Voting Trust Agreements. The Resolution,
in part, reads:
And so this Office does not find any prima facie case for
falsification or use of falsified documents nor that respondents are probably
guilty of the crimes charged. For,
while complainant relies on her own perception of a difference between
signatures, respondents have presented witnesses, not just two, but three at
the very least, who stated under oath that they had personally seen the late
Marcelo sign the questioned VTAs. In the
absence of any evidence showing that these witnesses are biased to the extent
of perjury their statements are entitled to full faith and credit. (Annex C, Petition; p. 51, Rollo;
Underscoring supplied.)
Wells then filed a petition for review with the Department of
Justice. In a resolution dated August
27, 1989 (Annex D, Petition; p. 53-55, Rollo), the Department dismissed the
Wells petition on the following grounds.
… The fact that the late Marcelo had the intention to execute the
VTAs, as he did actually sign the same in favor of his son, Edward, has been
substantially proven. Edward at the
time, was already entrusted with such responsible positions as Secretary,
Director, Vice President, Vice-Chairman, etc. and his being “the favorite
son”, is acknowledged by complainant. In their respective affidavits, Daniel T. Pascual and Celia Caburnay,
Director and Asst. Corporate Secretary, respectively, of several Marcelo
corporations, who both signed as witnesses to the VTAs attest to the fact that the
directors gave their consent to resolutions authorizing the late Marcelo to
execute VTAs in favor of Edward. Danilo Ibay, Chief Executive Officer of Marcelo Investment and
Management Corporation also attests to the same fact. Magdaleno Cortez and
Wilfredo Ersando, both directors of the Marcelo Tire and Rubber Corporation
likewise swore to the truth that on February 21, 1987, the board in a
regular meeting, unanimously passed a resolution authorizing Jose P. Marcelo
to execute a Voting Trust Agreement in favor of Edward. The letter of George T. Marcelo (Annex 1 of
Supplemental Affidavit, Edward Marcelo) who is residing in Australia
confirms that the voting trust given to Edward by their father is genuine, his
father having discussed the matter with him. Atty. Clarisa Penalosa of the Far East Bank and Trust Company
also confirms that the late Marcelo had inquired on how to preserve the
companies’ assets and in her reply, dated November 27, 1985, she delineated
schemes, among them, the execution of VTAs.
x x x
x x x
x x x
Petitioner’s (Well’s)
observation as to the difference between the contemporary and questioned
signatures of the late Marcelo, the allegations of bias of respondent’s
witnesses and the issue as to the authenticity of the minutes of the board
meetings showing the grant of authority to the late Marcelo to execute the
VTAs, are nonetheless inconclusive to prove the alleged falsification. They are insufficient in the light of the
positive testimonies of eyewitnesses to the actual signing of the VTAs by the
late Marcelo and the uncontroverted proof of his prior intention to execute the
same. (pp. 54-55, Rollo; Underscoring supplied.)
The Second Case (I.S. No. 91-3049)
Criminal
Case No. Q-91-21285
RTC-Quezon
City, Branch 96
After the Department of Justice dismissed the Wells complaint
(I.S. No. 88-5729), Jose Marcelo filed a similar criminal complaint
against Edward Marcelo, Marfil, Caburnay and Pascual involving the same
voting trust agreements. This
second complaint was docketed as I.S. No. 91-3049 of the Office of the City
Prosecutor of Quezon City. We quote
once again the narration by respondent Court of Appeals of the background
facts, to wit:
On the basis of the investigating prosecutor’s finding of a prima
facie case (Annex “F”, hereof), an Information for falsification
against Edward, Marfil, Caburnay and Pascual was filed before the Regional
Trial Court of Quezon City, Branch 96 (Annex “G” hereof). This criminal case was docketed as Criminal Case No. Q-91-21285.
Petitioners moved for a review of the prima facie finding of
the investigating prosecutor (Annex “H” hereof). The review was
conducted by the Review Division (“the Review Division”) of the
Office of the City Prosecutor of Quezon City. Meanwhile, the Regional Trial Court, Branch 96, upon motion of the
prosecution and petitioners citing the pending Motion for Review, deferred the
arraignment in Criminal Case No. Q-91-21285.
On 15 November 1991, the Review Division recommended that the
Information in Criminal Case Q-91-21285 be withdrawn (Annex “I”
hereof).
The prosecution then moved to withdraw the Information in Criminal
Case No. Q-91-21285 (Annex “J” hereof). Petitioners, on the other hand, filed a Manifestation and Motion
praying that Criminal Case No. Q-91-21285 be dismissed (Annex “K”
hereof).
On 13 December 1991, the Regional Trial Court of Quezon City,
Branch 96 dismissed Criminal Case No. Q-91-21285 (Annex “L”
hereof). (Annex A, Petition, p. 39,
Rollo.)
In dismissing the Information against petitioners in Criminal
Case No. Q-91-21285, the Honorable Lucas P. Bersamin, Presiding Judge of Branch
96 of the Regional Trial Court of Quezon City, ruled:
The Court accords great respect to the findings of the Review
Division which it finds to be based on substantial grounds and are highly
persuasive. Therein, the Review
Division squarely resolved the issue of whether or not the signatures of the
late Jose Marcelo, Sr. in the six voting trust agreements (VTAs) were
genuine. The Division reasonably
concluded that there was no probable cause to hold the accused liable for
falsification of the VTAs after agreeing with and adopting the conclusions of
the Provincial Prosecutor of Rizal in a case involving the same documents. (I.S. No. 88-5279)
In particular, the Division noted that the late elder Marcelo had
intended to execute the VTA’s in favor of his son Edward who was at the time
already holding responsible positions in their business aside from being
“the favorite son”; that Daniel Pascual and Celia Caburnay,
accused herein, who were then a director and an assistant corporate secretary,
respectively, of several Marcelo corporations and whose signatures were found
on the VTAs in their capacities as witnesses, attested to the fact that the
directors of the corporation had given their consent to the resolution authorizing
the late elder Marcelo to execute the VTA’s in favor of Edward; that Danilo
Ibay, Chief Executive Officer of Marcelo Investment and Management Corporation,
attested to the same facts, that Magdalena Cortez and Wilfredo Irsendo,
Directors of the Marcelo Tire and Rubber Corporation, likewise attested that on
February 21, 1987, the Board of Directors had unanimously passed during a
regular meeting a resolution authorizing the elder Marcelo to execute a VTA in
favor of Edward; that even George Marcelo, now a resident of Australia, and
brother of complainant and accused Edward Marcelo, had confirmed by letter the
genuineness of the voting trust agreements executed by their father in favor of
Edward. For the Court to close its eyes
to these circumstances relied upon by the Division in rendering the resolution
in question would be unwarranted and unreasonable in view of their
persuasiveness.
Since the essence of the crime of falsification is malicious
falsehood, the existence and concurrence of all the circumstances set forth
in the questioned resolution absolutely exclude falsification.
x x x
x x x
x x x
ACCORDINGLY, the Motion to
Dismiss of the accused and the Motion to Withdraw Information of public
prosecutor are hereby granted and this case is hereby dismissed without costs. (Annex Y, Petition, pp. 80-81, Rollo;
Underscoring supplied.)
The Third Case (Crim. Case
No.
Q-92-28104, RTC Quezon
City, Branch
101).
As further disclosed in the assailed decision of respondent Court
of Appeals -?
Despite the Regional Trial court’s dismissal of Criminal Case No.
Q-91-21285, Jose Jr. appealed the resolution of the Review Division of the DOJ
(Annex “M” hereof).
On 31 January 1992, the DOJ reversed the resolution of the Review
Division and ordered the re-filing of an Information against petitioners (Annex
“N”).
An Information for falsification of public documents was filed
before the Regional Trial Court of Quezon City, Branch 101, against petitioners
docketed as Criminal Case No. Q-92-28104. (Annex A, Petition, p. 40, Rollo.)
Petitioners contend in their instant petition, as they did in
their motion to quash (Annex H, Petition, pp. 82-91, Rollo) the Information in
Criminal Case No. Q-92-28104, RTC Quezon City Branch 101 presided by Judge
Pedro Santiago, and in their petition in CA-G.R. No. 27681 (Annex K, Petition,
pp. 103-127, Rollo) that:
When the Regional Trial Court, Quezon City, Branch 96, through
Honorable Judge Bersamin, took cognizance of the Resolution of the Review
Division of the City Prosecutor of Quezon City and on the basis thereof
dismissed Criminal Case No. Q-91-21285, it did so in the exercise of its
discretion and within the limits of its jurisdiction. The Prosecution can no longer question the dismissal of Criminal
Case No. Q-91-21285 because in its order, the Regional Trial Court, Quezon City
Branch 96, made findings of fact and law that the evidence against the
petitioners are insufficient to justify continuing with the criminal
proceedings against them.
The appeal taken by Jose Jr. to the Secretary of Justice and the
latter’s review and reversal of the resolution of the Review Division of the
Prosecutor’s Office of Quezon City are, therefore, null and void. The Secretary of Justice cannot interfere with
Honorable Judge Bersamin’s relative to the disposition of Criminal Case No.
Q-91-21285. By taking cognizance of the
appeal and issuing the Resolution, the Secretary of Justice usurped the power
and authority of the Regional Trial Court to determine whether to continue
with, or dismiss, the case.
x x x
x x x
x x x
… respondent Judge
should have granted the motion to quash or the Court of Appeals should have
reversed the denial thereof through the writ of certiorari. By refusing to do so, respondent Judge and
the Court of Appeals violated said rulings. (pp. 23 & 25, Rollo.)
Earlier cases decided by this Court persuade me that premised on
the peculiar contextual background of the case at bench, the conclusions and opinion
of Mme. Justice Romero are correct. In
said cases (Velasguez vs. Undersecretary of Justice, 182 SCRA 388
[1990]; Balgos Jr. vs. Sandiganbayan, 176 SCRA 287 [1989]; Dungog vs.
Court of Appeals, 159 SCRA 145 [1988]; Sta. Mining vs. Zabala, 153
SCRA 367 [1987]; Marquez vs. Alejo, 154 SCRA 302 [1987]), this Court
laid down the rule that once an Information has already been filed in court,
the court acquires complete jurisdiction over the case and the investigating
fiscal or the Secretary of Justice should no longer entertain motions for
reinvestigation.
I believe that the doctrine in Crespo vs. Mogul (151 SCRA
462 [1987] should be followed in this case.
The Court ruled in Crespo vs. Mogul that:
The preliminary investigation conducted by the fiscal for the
purpose of determining whether a prima facie case exists warranting the
prosecution of the accused is terminated upon the filing of the information in
the proper court. In turn, as above
stated, the filing of said information sets in motion the criminal action
against the accused in court. Should
the fiscal find it proper to conduct a reinvestigation of the case, at such
stage, the permission of the court must be secured. After such reinvestigation the finding and recommendation of the
fiscal should be submitted to the court for appropriate action. (p. 463, Ibid; underscoring supplied)
x x x
x x x
x x x
Whether the accused had been arraigned or not and whether it was
due to a reinvestigation by the fiscal or a review by the Secretary of Justice whereby
a motion to dismiss was submitted to the court, the court in the exercise of
its discretion may grant the motion … (p. 463, Ibid; underscoring
supplied)
x x x
x x x
x x x
The rule therefore in this jurisdiction is that once a complaint
or information is filed in court any disposition of the case as to its
dismissal or the conviction or acquittal of the accused rests in the sound
discretion of the court. The court is
the best and sole judge on what to do with the case before it. The determination of the case is within its
exclusive jurisdiction and competence … (p. 471, Ibid; underscoring
supplied).
x x x
x x x
x x x
In order therefore to avoid such a situation whereby the opinion of
the Secretary of Justice who reviewed the action of the fiscal may be
disregarded by the trial court, the Secretary of Justice should, as far as
practicable, refrain from entertaining a petition for review or appeal from the
action of the fiscal, when the complaint or information has already been filed
in court. The matter should be left
entirely for the determination of the court. (at p. 47; Underscoring supplied.)
It is not so much the observance of what to me are mere
technicalities of procedure and not substantial justice which should be
emphasized. It should be the compliance
with the principles of fairness and justice underlying the Crespo vs. Mogul
and other similar decisions that must concern us. Under the circumstances of this case, we should not be overly
apprehensive about the exact time when the trial court acted on a case clearly
within its jurisdiction, whether or not petitioners should have withheld their
motion to dismiss, whether or not the public prosecutor should have deferred
his motion to withdraw the information while the period to appeal from the
committee on review had not lapsed, whether or not express permission from the
trial court for a reinvestigation is absolutely necessary or it may be
impliedly waived if the court knowingly allows such a procedure to be followed
and similar questions all revolving around technical rules of procedure. To me, whether or not Crespo vs. Mogul
applies, the facts clearly show that to deny this petition would be to deny
substantial justice. There is no new
evidence in the records. The evidence
twice dismissed by state prosecutors remains as inadequate as ever. The important point is not to allow the
strong arm of the law to be used in an oppressive manner in such cases as the
one before us.
I also respectfully submit that Judge Bersamin did not act hastily in dismissing the case and granting
the prosecutor’s motion to withdraw the information. I understand that the records of this case are around 400
pages. Judge Bersamin must have gone
over the records. He had strong factual
and legal grounds to conclude that the signature appearing in the questioned
document is genuine.
The trial court had more than ample evidence to act as it
did. I also submit with all due respect
that even in a case before the Supreme Court, there may be instances when we should
not only grant a motion to withdraw a petition but we may emphasize that the
withdrawal be with prejudice on the ground that the petition has no
merit and warrants dismissal. Indeed,
it is not only the adjudicative function but also the more important role of
emphasizing legal principles that leads us to decide cases which are
technically moot and academic. In this
respect Judge Bersamin did not really err.
In this case, whatever the Secretary of Justice says is only
advisory and suggestive. The discretion
to allow the withdrawal of the information and dismissal of the action is
vested in the court. It is a
discretion, a function of trial courts which we should honor and respect.
The Secretary of Justice thus, to my mind, exceeded his
jurisdictional competence and acted with grave abuse of discretion when he
ordered the re-filing of the same criminal information against
petitioners involving the same voting trust agreements notwithstanding the fact
that Judge Bersamin in the second case (I.S. No. 91-3049; Civil Case No.
Q-91-21285, RTC Quezon City, Branch 96) had already ordered its dismissal, as
it was actually dismissed on December 13, 1991.
Further, on August 27, 1989, the Department of Justice affirmed
the dismissal of the criminal charges filed by Mrs. Wells against Edward, etc.
in I.S. No. 88-5279 involving the same voting trust agreements. The flip-flopping of the Department of
Justice in the light of its earlier resolution in the first case (Wells) leaves
much to be desired.
The re-filing of the same Information for falsification of public
documents docketed as Criminal Case No. Q-92-28104 in Branch 101 of the RTC,
Quezon City was unwarranted reprobation and reversal of Judge Bersamin’s order
dismissing the Information in the second case, which the Secretary of Justice
has no authority whatsoever to do. From
the time Branch 96 of the Quezon City RTC
acquired jurisdiction over the second case and, in the exercise of its
jurisdiction, thereafter ordered the dismissal thereof for lack or insufficiency
of evidence, the Secretary of Justice was divested of any authority to overturn
such dismissal or to direct the re-filing of another information involving the
same charges and the same voting trust agreements, in the absence, if it must
be added, of new evidence. In Peralta vs. CFI (157 SCRA 476
[1988]), we held:
This Court finds no reason to reverse the action taken by the trial
court. Once an information or complaint
is filed in court, the matter of disposition of the case is left to the sound
discretion of the court. When the trial
court in the instant case granted the fiscal’s motion to dismiss, it was within
its prerogative to do so.
On the matter of propriety of appeals to Secretary of Justice for
reinvestigation after the information or complaint has been filed in court, the
pronouncement made by this Court in the Crespo case is applicable. In that case, the Court, although not
entirely disregarding the power of review of the Secretary of Justice over the
action of fiscals, imposed a limit on the exercise of such power, thus:
In order therefor(e) to avoid such a situation whereby the opinion
of the Secretary of Justice who reviewed the action of the fiscal may be
disregarded by the trial court; such a review of or appeal should no longer be
entertained by the Secretary of Justice when the complaint or information had
already been filed in court. The matter
should be left entirely for determination of the court. (at p. 480)
In Velasquez vs. Undersecretary of Justice (182 SCRA 388
[1990]), we held:
The petition is meritorious. This case is governed by our decision in Crespo vs. Mogul, 151 SCRA 462,
where we ruled that once the information is filed in court, the court acquires
complete jurisdiction over it. A motion
for reinvestigation should, after the court had acquired jurisdiction over the
case, be addressed to the trial judge and to him alone. Neither the Secretary of Justice, the State
Prosecutor, nor the Fiscal may interfere with the judge’s disposition of the
case, much less impose upon the court their opinion regarding the guilt or
innocence of the accused, for the court is the sole judge of that … (at p.
391.)
The re-filing, therefore, of the Information with Branch 101 of
the Quezon City RTC against petitioners by the Quezon City Prosecutor upon
orders of the Secretary of Justice long after Branch 96 of the same court
ordered the dismissal of the Information in the second case involving the same
documents, was flawed and suffered from jurisdictional infirmity. The Information is thus susceptible to
quashal. Acts done with grave abuse of
discretion or in excess of jurisdiction must be struck down. The Information must be quashed. The peculiar circumstances of this case
require no less than the issuance of the privileged writ of certiorari
and prohibition to prevent the unlawful and oppressive exercise of legal
authority and to provide for a fair and orderly administration of justice (Lopez
vs. City Judge, 18 SCRA 616 [1966]). Petitioners have no plain, speedy, and adequate remedy in the course of
law. Appeal is neither a speedy nor an
adequate remedy, given the factual milieu in the case.
To require petitioners to undergo the rigors of trial under an
information which is tainted with jurisdictional infirmity, without prejudice
to presenting the special defense they had invoked in their motion, and if
after trial on the merits, an adverse decision is rendered, to appeal,
therefrom, which course of action was laid down by Judge Santiago and affirmed
by respondent Court of Appeals when it denied the petition in CA-G.R. No.
27681, would indeed be oppressive. Further, the trial court would be unnecessarily dragged into spending
its precious time and energy, and petitioners exposed to the inconvenience,
anxiety, and embarrassment, not to speak of the expenditure of time and money
on a case which had been twice the subject of preliminary investigation, passed
upon and twice dismissed for lack or insufficiency of evidence and absence of
probable cause.
I, therefore, with the highest respect for the majority, must
express my dissent and vote to give due course to the petition.
6 pt
6 pt
0
3
SEPARATE OPINION
ROMERO, J.:
I vote to grant the petition.
The records show that the information for falsification of public
document docketed as Criminal Case No. Q-92-28104 involves the same charges which
had been twice investigated and dismissed. The first charge filed by Mrs. Wells was dismissed by the Provincial
Fiscal of Rizal and affirmed by the Department of Justice. On the other hand, the second charge filed
by Jose T. Marcelo was the one where the Review Committee of Quezon City
reversed the earlier recommendation finding probable cause. These dismissals were based on a positive
finding of the genuineness and due execution by Jose T. Marcelo Sr. of the
subject voting trust agreements in favor of Edward Marcelo.
The resolution of the Secretary of Justice directing the filing
of the information for falsification of the VTAs was issued after it found
merit in the appeal from the Review Committee’s resolution. The Secretary of Justice may, upon petition
by a proper party, reverse the resolution of the provincial or city fiscal
concerned to file the corresponding information without conducting another
preliminary investigation or dismiss or move for the dismissal of the complaint
or information.[1]
In this case, what is of consequence is the resolution of the Secretary of
Justice which came after the lower court had already granted the motion to
dismiss and the motion to withdraw information.
The rule regarding motions for reinvestigation once an information
has already been filed in court is now settled.[2] In
the case of Crespo v. Mogul, the
Court held that:
“The preliminary investigation conducted by the fiscal for the
purpose of determining whether a prima facie case exists warranting the
prosecution of the accused is terminated upon the filing of the information in
the proper court. In turn, as above
stated, the filing of said information sets in motion the criminal action
against the accused in Court. Should
the fiscal find it proper to conduct a reinvestigation of the case, at such
stage, the permission of the Court must be secured. After such reinvestigation the finding and recommendations of the
fiscal should be submitted to the Court for appropriate action. While it is true that the fiscal has the
quasi judicial discretion to determine whether or not a criminal case should be
filed in court or not, once the case had already been brought to Court whatever
disposition the fiscal may feel should be proper in the case thereafter should
be addressed for the consideration of the Court. The only qualification is that the action of the Court must not
impair the substantial rights of the accused or the right of the People to due
process of law.
Whether the accused had been arraigned or not and whether it was
due to a reinvestigation by the fiscal or a review by the Secretary of Justice
whereby a motion to dismiss was submitted to the Court, the Court in the
exercise of its discretion may grant the motion or deny it and require that the
trial on the merits proceed for the proper determination of the case.
x x x x
x x x
x x
The rule therefore in this jurisdiction is that once a complaint or
information is filed in Court any disposition of the case as its dismissal or
the conviction or acquittal of the accused rests in the sound discretion of the
Court. Although the fiscal retains the
direction and control of the prosecution of criminal cases even while the case
is already in Court he cannot impose his opinion on the trial court. The Court is the best and sole judge on what
to do with the case before it. The
determination of the case is within its exclusive jurisdiction and
competence. A motion to dismiss the
case filed by the fiscal should be addressed to the Court who has the option to
grant or deny the same. It does not
matter if this is done before or after the arraignment of the accused or that
the motion was filed after a reinvestigation or upon instructions of the
Secretary of Justice who reviewed the records of the investigation.”[3]
According to the records, before petitioners could be arraigned,
they filed a petition for review before the Review Committee which reversed the
finding of Prosecutor Israel. Thereafter, the prosecution filed a motion to withdraw and the defense,
a motion to dismiss which were granted by Judge Bersamin. This is in accord with Crespo where
we said that “[a]fter such reinvestigation the finding and recommendation
of the fiscal should be submitted to the Court for appropriate action.[4]
Later, the Secretary of Justice reversed the Review Committee. Even conceding the power of the Secretary of
Justice to review the action of the prosecutors, the Court has already
cautioned him on the propriety of the appeals to him after an information or
complaint has been filed in court in this manner:
“x x x the Secretary of Justice should, as far as practicable,
refrain from entertaining a petition for review or appeal from the action of
the fiscal, when the complaint or information has already been filed in Court. The matter should be left entirely for the
determination of the Court.”[5]
It bears stressing that if the Court is encouraging the Secretary
of Justice to refrain from entertaining petitions for review or appeal once an
information or complaint has been filed, there is greater reason for him to do
so in this case where the lower court has already exercised its discretion
based on the results of the reinvestigation. If the Secretary of Justice may no longer interfere once the case is pending
before the trial court, with more reason should he avoid another review or
appeal after the court has dismissed the same. Thus, in this case, we hold that the Secretary of Justice acted with
grave abuse of discretion or in excess of his jurisdiction when he reviewed the
appeal and ordered the re-filing of the information against petitioners. The ultimate consequence of the Secretary of
Justice’s act of reviewing the findings of the Review Committee is the indirect
reversal of the order of Judge Bersamin who is the “best and sole judge on
what to do with the case before it.” Such act of the Secretary of Justice
is an unmitigated reprobation and reversal of Judge Bersamin’s order over which
the former has no authority whatsoever. Therefore, the information docketed as Q-92-28104 is susceptible to
quashal.
[1]
Rule 112, Sec. 4, last par., Rules on Criminal Procedure.
[2]
Velasquez v. Undersecretary of Justice, G.R. No. 88442, February 15,
1990, 182 SCRA 388; Balgos, Sr. v. Sandiganbayan, G.R. No. 85590, August
10, 1989, 176 SCRA 287; Republic v. Sunga, L-38634, June 20, 1988, 162
SCRA 191; Almazar v. Cenzon, L-46188, May 28, 1988, 161 SCRA 545; Dungog
v. Court of Appeals, G.R. Nos. 77850-51, March 25, 1988, 159 SCRA 145;
Peralta v. Court of First Instance of La Union, Branch I, L-48011,
January 29, 1988, 157 SCRA 476; Sta. Rosa Mining Company v. Zabala,
L-44723, August 31, 1987, 153 SCRA 367; Marquez v. Alejo, L-40575,
September 28, 1987, 154 SCRA 302; and Crespo v. Mogul, G.R. No. 53373,
June 30, 1987, 151 SCRA 462.
[3]
Crespo v. Mogul, supra at pp. 469-471.
[4]
Ibid.
[5]
Ibid, See also Almazan v. Cenzon and Peralta v. CFI of La
Union, supra at 2.