SECOND DIVISION

G.R. No. 208146, June 08, 2016

VIRGINIA DIO, Petitioner, v. PEOPLE OF THE PHILIPPINES AND

TIMOTHY DESMOND, Respondents.

DECISION

Pleadings and Practice; Amendment of Complaint or Information; If a

motion to quash is based on a defect in the information that can be cured
by amendment, the court shall order that an amendment be made.—If a
motion to quash is based on a defect in the information that can be cured
by amendment, the court shall order that an amendment be made. Rule
117, Section 4 of the Rules of Court states: SEC. 4. Amendment of
complaint or information.—If the motion to quash is based on an alleged
defect of the complaint or information which can be cured by amendment,
the court shall order that an amendment be made. If it is based on the
ground that the facts charged do not constitute an offense, the prosecution
shall be given by the court an opportunity to correct the defect by
amendment. The motion shall be granted if the prosecution fails to make
the amendment, or the complaint or information still suffers from the same
defect despite the amendment.

Same; Same; The Supreme Court (SC) has held that failure to provide
the prosecution with the opportunity to amend is an arbitrary exercise of
power.—This Court has held that failure to provide the prosecution with the
opportunity to amend is an arbitrary exercise of power. In People v.
Sandiganbayan (Fourth Division), 770 SCRA 162 (2015): When a motion to
quash is filed challenging the validity and sufficiency of an Information, and
the defect may be cured by amendment, courts must deny the motion to
quash and order the prosecution to file an amended Information. Generally,
a defect pertaining to the failure of an Information to charge facts
constituting an offense is one that may be corrected by an amendment. In
such instances, courts are mandated not to automatically quash the
Information; rather, it should grant the prosecution the opportunity to cure
the defect through an amendment. This rule allows a case to proceed
without undue delay. By allowing the defect to be cured by simple
amendment, unnecessary appeals based on technical grounds, which only
result to prolonging the proceedings, are avoided. More than this practical
consideration, however, is the due process underpinnings of this rule. As
explained by this Court in People v. Andrade, the State, just like any other
litigant, is entitled to its day in court. Thus, a court’s refusal to grant the
prosecution the opportunity to amend an Information, where such right is
expressly granted under the Rules of Court and affirmed time and again in
a string of Supreme Court decisions, effectively curtails the State’s right to
due process.

Remedial Law; Criminal Procedure; Information; Motion to Quash; A

defect in the complaint filed before the fiscal is not a ground to quash an
information; On the other hand, lack of authority to file an information is a
proper ground.—A defect in the complaint filed before the fiscal is not a
ground to quash an information. In Sasot v. People, 462 SCRA 138 (2005):
Section 3, Rule 117 of the 1985 Rules of Criminal Procedure, which was
then in force at the time the alleged criminal acts were committed,
enumerates the grounds for quashing an information, to wit: a) That the
facts charged do not constitute an offense; b) That the court trying the case
has no jurisdiction over the offense charged or the person of the accused;
c) That the officer who filed the information had no authority to do so; d)
That it does not conform substantially to the prescribed form; e) That more
than one offense is charged except in those cases in which existing laws
prescribe a single punishment for various offenses; f) That the criminal
action or liability has been extinguished; g) That it contains averments
which, if true, would constitute a legal excuse or justification; and h) That
the accused has been previously convicted or in jeopardy of being
convicted, or acquitted of the offense charged. Nowhere in the foregoing
provision is there any mention of the defect in the complaint filed before the
fiscal and the complainant’s capacity to sue as grounds for a motion to
quash. On the other hand, lack of authority to file an information is a proper
ground.

Same; Same; Same; Same; For an information to be quashed based

on the prosecutor’s lack of authority to file it, the lack of the authority must
be evident on the face of the information.—For an information to be
quashed based on the prosecutor’s lack of authority to file it, the lack of the
authority must be evident on the face of the information. The Informations
here do not allege that the venue of the offense was other than Morong,
Bataan. Thus, it is not apparent on the face of the Informations that the
prosecutor did not have the authority to file them. The proper remedy is to
give the prosecution the opportunity to amend the Informations. If the
proper venue appears not to be Morong, Bataan after the Informations
have been amended, then the trial court may dismiss the case due to lack
of jurisdiction, as well as lack of authority of the prosecutor to file the
information.

Constitutional Law; Freedom of Expression; Passionate and emphatic

grievance, channelled through proper public authorities, partakes of a
degree of protected freedom of expression.—Whether e-mailing or, as in
this case, sending e-mails to the persons named in the Informations — who
appear to be officials of Subic Bay Metropolitan Authority where Subic Bay
Marine Exploratorium is found — is sufficiently “public,” as required by
Articles 353 and 355 of the Revised Penal Code and by the Anti-
Cybercrime Law, is a matter of defense that should be properly raised
during trial. Passionate and emphatic grievance, channelled through proper
public authorities, partakes of a degree of protected freedom of expression.
Certainly, if we remain faithful to the dictum that public office is a public
trust, some leeway should be given to the public to express disgust. The
scope and extent of that protection cannot be grounded in abstractions.
The facts of this case need to be proven by evidence; otherwise, this Court
exercises barren abstractions that may wander into situations only
imagined, not real.

Remedial Law; Criminal Procedure; Information; Motion to Quash;

Good Faith; Good faith is not among the grounds for quashing an
information as enumerated in Rule 117, Section 3 of the Rules of Court.—
Good faith is not among the grounds for quashing an information as
enumerated in Rule 117, Section 3 of the Rules of Court. It is not apparent
on the face of the Informations, and what is not apparent cannot be the
basis for quashing them.

LEONEN, J.:

When a motion to quash an information is based on a defect that may be

cured by amendment, courts must provide the prosecution with the
opportunity to amend the information.

This resolves a Petition for Review on Certiorari1 assailing the Court of

Appeals Decision2 dated January 8, 2013 and Resolution3 dated July 10,
2013. The Court of Appeals reversed and set aside the Regional Trial
Court Order that quashed the Informations charging petitioner Virginia Dio
(Dio) with libel because these Informations failed to allege
publication.4ChanRoblesVirtualawlibrary

Private respondent Timothy Desmond (Desmond) is the Chair and Chief

Executive Officer of Subic Bay Marine Exploratorium, of which Dio is
Treasurer and Member of the Board of
Directors.5ChanRoblesVirtualawlibrary

On December 9, 2002, Desmond filed a complaint against Dio for

libel.6 Two (2) separate Informations, both dated February 26, 2003, were
filed and docketed as Criminal Case Nos. 9108 and 9109.7 The Information
in Criminal Case No. 9108 reads:chanRoblesvirtualLawlibrary

That on or about July 6, 2002 in Morong, Bataan, Philippines, and within

the jurisdiction of this Honorable Court, the said accused with malicious
intent to besmirch the honor, integrity and reputation of Timothy Desmond,
Chairman and Chief Executive Office of Subic Bay Marine Exploratorium,
did then and there willfully, unlawfully, and feloniously send electronic
messages to the offended party and to other persons namely: Atty. Winston
Ginez, John Corcoran, and Terry Nichoson which read as follows:

'NOW THAT WE ARE SET TO BUILD THE HOTEL SO THAT YOU

COULD SURVIVED, (sic) YOU SHOULD STOP YOUR NONSENSE
THREAT BECAUSE YOU COULD NOT EVEN FEED YOUR OWN SELF
UNLESS WE PAY YOUR EXHORBITANT (sic) SALARY, HOUSE YOU
ADN (sic) SUPPORT ALL YOUR PERSONAL NEEDS. YOU SHOULD BE
ASHAMED IN DOING THIS. AS FAR AS WE ARE CONCERNED, YOU
ARE NOTHING EXCEPT A PERSON WHO IS TRYING TO SURVIVED
(sic) AT THE PRETEXT OF ENVIRONMENTAL AND ANIMAL
PROTECTOR [sic]. YOU ARE PADI (sic) TO THE LAST CENTS ON ALL
YOUR WORK IN THE WORK (sic). AT THE SAME TIME, YOU BLOATED
THE PRICE OF EACH ANIMAL YOU BROUGHT TO THE PHILIPPINES
from US$500,000.00 to US$750,000.00 each so that you could owned (sic)
more shares that you should. Please look into this deeply.

IF YOU INSISTS (sic) TO BE CALLED AN ENVIRONMENTAL AND

ANIMAL PROTECTOR IN OUR COUNTRY, THEN YOU AND YOUR WIFE
SHOULD STOP BLEEDING THE COMPANY WITH YOUR MONTHLY
PAYROLL OF ALMOST P1 MILLION A MONTH.'
The above-quoted electronic message being defamatory or constituting an
act causing or tending to cause dishonor, discredit or contempt against the
person of the said Timothy Desmond, to the damage and prejudice of the
said offended party.

CONTRARY TO LAW.8cralawred
The Information in Criminal Case No. 9109
reads:chanRoblesvirtualLawlibrary
That on or about July 13, 2002 in Morong, Bataan, Philippines, and within
the jurisdiction of this Honorable Court, the said accused, with malicious
intent to besmirch the honor, integrity and reputation of Timothy Desmond,
Chairman and Chief Executive Office of Subic Bay Marine Exploratorium,
did then and there willfully, unlawfully, and feloniously send electronic
messages to the [sic] Atty. Winston Ginez and Fatima Paglicawan, to the
offended party, Timothy Desmond and to other persons namely: Hon.
Felicito Payumo, SBMA Chariman [sic], Terry Nichoson, John Corcoran,
and Gail Laule which read as follows:chanRoblesvirtualLawlibrary
'Dear Winston and Fatima:

UNDER THE LEADERSHIP OF TIM DESMOND AS CHAIRMAN AND

CHIEF EXECUTIVE OFFICER OF SBME, AS OF THIS DATE THE
COMPANY HAD INCURRED A LOSS OF MORE THAN ONE HUNDRED
MILLION. A BALANCE SHEET SUBMITTED TODAY BY THEIR
ACCOUNTANT JULIET REFLECT AND (sic) ASSETS OF MORE THAN
THREE HUNDRED MILLION PESOS, 50% OF WHICH IS OVERVALUED
AND NON-EXISTENT. TIM DESMOND AND FAMILY HAD
ACCUMULATED A (sic) SHARES OF MORE THAN 70% OF THE
RECORDED PAID UP CAPITAL BY OVERVALUING OF THE ASSETS
CONTRIBUTION, PAYMENT TO THEIR OWN COMPANY IN THE USA,
ETC. AT THE SAME TIME, TIM DESMOND AND FAMILY BLEED THE
COMPANY FROM DATE OF INCORPORATION TO PRESENT FOR AN
AVERAGE OF ONE MILLION PER MONTH FOR THEIR PERSONAL
GAIN, LIKE SALARY, CAR, ET, [sic] ETC.'cralawred
The above-quoted electronic message being defamatory or constituting an
act causing or tending to cause dishonor, discredit or contempt against the
person of the said Timothy Desmond, to the damage and prejudice of the
said offended party.

CONTRARY TO LAW.9cralawred
On April 22, 2003, Dio filed a Petition to suspend the criminal
proceedings,10 but it was denied in the Order dated February 6,
2004.11ChanRoblesVirtualawlibrary

Dio moved for reconsideration of the February 6, 2004 Order.12 She also

moved to quash the Informations, arguing that the "facts charged do not
constitute an offense."13 In its Order14 dated July 13, 2004, the trial court
denied both Motions. The dispositive portion of the Order
reads:chanRoblesvirtualLawlibrary
Premises considered, the Motion For Reconsideration of the Order dated
February 6, 2004 and the Motion To Quash, both filed for accused, as well
as the Motion For Issuance of a Hold Departure Order filed by the
Prosecution, are hereby DENIED.

Arraignment will proceed as previously set on July 20, 2005 at 9:00 a.m.

SO ORDERED.15cralawred
Dio moved for partial reconsideration of the July 13, 2004 Order, but the
Motion was denied in the trial court's Order dated September 13,
2005.16ChanRoblesVirtualawlibrary

On October 11, 2005, Dio filed a Motion for leave of court to file a second
motion for reconsideration.17 She also filed an Omnibus Motion to quash
the Informations for failure to allege publication and lack of jurisdiction, and
for second reconsideration with leave of court.18Chan

The trial court's Order dated February 7, 2006 denied both Motions and
scheduled Dio's arraignment on March 9, 2006.19 Dio moved for partial
reconsideration.20ChanRoblesVirtualawlibrary

The trial court granted Dio's Motion for Partial Reconsideration in its
February 12, 2009 Order,21 the dispositive portion of which
reads:chanRoblesvirtualLawlibrary

WHEREFORE, the Motion For Partial Reconsideration filed by the accused

in Criminal Cases (sic) Nos. 9108 and 9109, on the ground that the
Informations in the said cases fail (sic) to allege publication, is GRANTED
and, accordingly, the Informations filed against the accused are thereby
QUASHED and DISMISSED.
No finding as to costs.

SO ORDERED.22cralawred
After filing a Notice of Appeal on March 5, 2009,23 Desmond raised before
the Court of Appeals the following issues:chanRoblesvirtualLawlibrary

WHETHER OR NOT THE LOWER COURT ERRED IN UPHOLDING THE

ACCUSED'S ARGUMENT THAT THE PRESENT CHARGES SHOULD BE
QUASHED FOR FAILURE OF THE INFORMATIONS TO ALLEGE
PUBLICATION.

II

WHETHER OR NOT THE LOWER COURT ERRED IN DISMISSING THE

CASE AND QUASHING THE INFORMATIONS WITHOUT GIVING THE
PROSECUTOR THE OPPORTUNITY TO AMEND THE
24
INFORMATIONS. cralawred
In its January 8, 2013 Decision, the Court of Appeals sustained that the
Informations did not substantially constitute the offense charged.25 It found
that the Informations did not contain any allegation that the emails allegedly
sent by Dio to Desmond had been accessed.26 However, it found that the
trial court erred in quashing the Informations without giving the prosecution
a chance to amend them pursuant to Rule 117, Section 4 of the Rules of
Court:chanRoblesvirtualLawlibrary

Although we agree with the trial court that the facts alleged in the
Informations do not substantially constitute the offense charged, the most
prudent thing to do for the trial court is to give the prosecution the
opportunity to amend it and make the necessary corrections. Indeed, an
Information may be defective because the facts charged do not constitute
an offense, however, the dismissal of the case will not necessarily follow.
The Rules specifically require that the prosecution should be given a
chance to correct the defect; the court can order the dismissal only upon
the prosecution's failure to do so. The trial court's failure to provide the
prosecution with this opportunity constitutes an arbitrary exercise of
power.27cralawred
The dispositive portion reads:chanRoblesvirtualLawlibrary

WHEREFORE, premises considered, the appeal is GRANTED. The order

of the Regional Trial Court of Balanga City, Branch 3 dated February 12,
2009 in Criminal Case Nos. 9108 and 9109 is REVERSED AND SET
ASIDE. The case is remanded to the trial court and the Public Prosecutor
of Balanga City is hereby DIRECTED to amend the Informations.

SO ORDERED.28cralawred
Dio moved for reconsideration,29 but the Court of Appeals denied the
Motion in its July 10, 2013 Resolution.30ChanRoblesVirtualawlibrary

Hence, this Petition was filed.

Desmond and the Office of the Solicitor General filed their Comments,31 to
which Dio filed her Reply.32 On April 2, 2014, this Court gave due course to
the Petition and required the parties to submit their respective
memoranda.33ChanRoblesVirtualawlibrary

The Office of the Solicitor General filed on June 11, 2014 a Manifestation
and Motion34 adopting its Comment. Desmond and Dio filed their
memoranda on June 19, 201435 and July 10, 2014,36 respectively.

Dio stresses that "venue is jurisdictional in criminal cases."37 Considering

that libel is limited as to the venue of the case, failure to allege "where the
libelous article was printed and first published"38 or "where the offended
party actually resided at the time of the commission of the offense"39 is a
jurisdictional defect. She argues that jurisdictional defects in an Information
are not curable by amendment, even before arraignment. To support this
position, she cites Agustin v. Pamintuan:40

We do not agree with the ruling of the CA that the defects in the
Informations are merely formal. Indeed, the absence of any allegations in
the Informations that the offended party was actually residing in Baguio
City, where the crimes charged were allegedly committed, is a substantial
defect. Indeed, the amendments of the Informations to vest jurisdiction
upon the court cannot be allowed.41 (Citations omitted)cralawred
Dio also cites Leviste v. Hon. Alameda,42 where this Court has stated that
not all defects in an Information are curable by amendment prior to
arraignment:chanRoblesvirtualLawlibrary

It must be clarified though that not all defects in an information are curable
by amendment prior to entry of plea. An information which is void ab
initio cannot be amended to obviate a ground for quashal. An amendment
which operates to vest jurisdiction upon the trial court is likewise
impermissible.43 (Citations omitted)cralawred
Dio argues that the Informations were void as the prosecutor of Morong,
Bataan had no authority to conduct the preliminary investigation of the
offenses charged.44 The complaint filed before the prosecutor did not allege
that the emails were printed and first published in Morong Bataan, or that
Desmond resided in Morong, Bataan at the time of the offense.45 In the
absence of these allegations, the prosecutor did not have the authority to
conduct the preliminary investigation or to file the
information.46ChanRoblesVirtualawlibrary

Dio further argues that publication, one of the elements of libel, was not
present in the case. She asserts that emailing does not constitute
publication under Article 355 of the Revised Penal Code. As there was no
allegation in the Informations that the emails were received, accessed, and
read by third persons other than Desmond, there could be no
publication.47 Further, emails are not covered under Article 355 of the
Revised Penal Code. Thus, at the time the allegedly libelous emails were
sent, there was no law punishing this act.48ChanRoblesVirtualawlibrary

Finally, Dio argues that she sent the emails as private communication to
the officers of the corporation, who were in the position to act on her
grievances.49 The emails were sent in good faith, with justifiable ends, and
in the performance of a legal duty.50ChanRoblesVirtualawlibrary

The primordial issue for resolution is whether an information's failure to

establish venue is a defect that can be cured by amendment before
arraignment.

The Petition is denied.

If a motion to quash is based on a defect in the information that can be

cured by amendment, the court shall order that an amendment be made.
Rule 117, Section 4 of the Rules of Court
states:chanRoblesvirtualLawlibrary

SEC. 4. Amendment of complaint or information. - If the motion to quash is

based on an alleged defect of the complaint or information which can be
cured by amendment, the court shall order that an amendment be made.

If it is based on the ground that the facts charged do not constitute an

offense, the prosecution shall be given by the court an opportunity to
correct the defect by amendment. The motion shall be granted if the
prosecution fails to make the amendment, or the complaint or information
still suffers from the same defect despite the amendment.cralawred
This Court has held that failure to provide the prosecution with the
opportunity to amend is an arbitrary exercise of power.51 In People v.
Sandiganbayan:52

When a motion to quash is filed challenging the validity and sufficiency of

an Information, and the defect may be cured by amendment, courts must
deny the motion to quash and order the prosecution to file an amended
Information. Generally, a defect pertaining to the failure of an Information to
charge facts constituting an offense is one that may be corrected by an
amendment. In such instances, courts are mandated not to automatically
quash the Information; rather, it should grant the prosecution the
opportunity to cure the defect through an amendment. This rule allows a
case to proceed without undue delay. By allowing the defect to be cured by
simple amendment, unnecessary appeals based on technical grounds,
which only result to prolonging the proceedings, are avoided.

More than this practical consideration, however, is the due process

underpinnings of this rule. As explained by this Court in People v. Andrade,
the State, just like any other litigant, is entitled to its day in court. Thus, a
court's refusal to grant the prosecution the opportunity to amend an
Information, where such right is expressly granted under the Rules of Court
and affirmed time and again in a string of Supreme Court decisions,
effectively curtails the State's right to due process.53cralawred
In this case, petitioner Virginia Dio has not yet been arraigned; thus, Rule
117, Section 4 of the Rules of Court applies. If the information is defective,
the prosecution must be given the opportunity to amend it before it may be
quashed.

Petitioner claims that Rule 117, Section 4 of the Rules of Court applies only
to informations that can be cured by amendment. She argues that before a
court orders that an amendment be made, or otherwise gives the
prosecution an opportunity to amend an information, it must first establish
that the defective information can be cured by amendment.

Petitioner relies on Agustin to argue the proscription of an amendment of

an information in order to vest jurisdiction in the court. This is misplaced.

In Agustin, the accused in the criminal case was already arraigned under a
defective information that failed to establish venue.54 The Court of Appeals
held that the defect in the information was merely formal and,
consequently, could be amended even after plea, with leave of court. Thus,
this Court held:chanRoblesvirtualLawlibrary

We do not agree with the ruling of the CA that the defects in the
Informations are merely formal. Indeed, the absence of any allegations in
the Informations that the offended party was actually residing in Baguio
City, where the crimes charged were allegedly committed, is a substantial
defect. Indeed, the amendments of the Informations to vest jurisdiction
upon the court cannot be allowed.55cralawred
In turn, Agustin cited Agbayani v. Sayo.56 However, Agbayani does not
involve the amendment of a defective information before or after
arraignment. Subsequent cases have cited Agustin as basis that
amendment of an information to vest jurisdiction in the trial court is
impermissible. Thus, in Leviste, this Court cited Agustin and stated that
certain amendments are impermissible even before
arraignment:chanRoblesvirtualLawlibrary

It must be clarified though that not all defects in an information are curable
by amendment prior to entry of plea. An information which is void ab
initio cannot be amended to obviate a ground for quashal. An amendment
which operates to vest jurisdiction upon the trial court is likewise
impermissible.57cralawred
It may appear that Leviste supports petitioner's contention that an
amendment operating to vest jurisdiction in the trial court is impermissible.
However, the statement in Leviste was obiter dictum. It cites only Agustin,
which did not involve the amendment of an information before arraignment.

Aside from obiter dictum in jurisprudence, petitioner provides no legal basis

to reverse the Court of Appeals' determination that the defective
informations may be amended before arraignment. Although the cases
petitioner cited involved defective informations that failed to establish the
jurisdiction of the court over the libel charges, none involved the
amendment of an information before arraignment. Thus, these cannot be
controlling over the facts of this case.

II

A defect in the complaint filed before the fiscal is not a ground to quash an
information. In Sasot v. People:58

Section 3, Rule 117 of the 1985 Rules of Criminal Procedure, which was
then in force at the time the alleged criminal acts were committed,
enumerates the grounds for quashing an information, to
wit:chanRoblesvirtualLawlibrary
a) That the facts charged do not constitute an offense;
b) That the court trying the case has no jurisdiction over the offense
charged or the person of the accused;
c) That the officer who filed the information had no authority to do so;
d) That it does not conform substantially to the prescribed form;
e) That more than one offense is charged except in those cases in
which existing laws prescribe a single punishment for various
offenses;
f) That the criminal action or liability has been extinguished;
g) That it contains averments which, if true, would constitute a legal
excuse or justification; and
h) That the accused has been previously convicted or in jeopardy of
being convicted, or acquitted of the offense charged.
Nowhere in the foregoing provision is there any mention of the defect in the
complaint filed before the fiscal and the complainant's capacity to sue as
grounds for a motion to quash.59cralawred
On the other hand, lack of authority to file an information is a proper
ground. In Cudia v. Court of Appeals:60

With respect to the second requisite, however, it is plainly apparent that the
City Prosecutor of Angeles City had no authority to file the first information,
the offense having been committed in the Municipality of Mabalacat, which
is beyond his jurisdiction. Presidential Decree No. 1275, in relation to
Section 9 of the Administrative Code of 1987, pertinently provides that:

"Section 11. The provincial or the city fiscal

shall:chanRoblesvirtualLawlibrary
. . . .

(b) Investigate and/or cause to be investigated all charges of crimes,

misdemeanors and violations of all penal laws and ordinances within their
respective jurisdictions and have the necessary information or complaint
prepared or made against the persons accused. In the conduct of such
investigations he or his assistants shall receive the sworn statements or
take oral evidence of witnesses summoned by subpoena for the purpose.

. . . .cralawred
It is thus the Provincial Prosecutor of Pampanga, not the City Prosecutor,
who should prepare informations for offenses committed within Pampanga
but outside of Angeles City. An information, when required to be filed by a
public prosecuting officer, cannot be filed by another. It must be exhibited
or presented by the prosecuting attorney or someone authorized by law. If
not, the court does not acquire jurisdiction.

Petitioner, however, insists that his failure to assert the lack of authority of
the City Prosecutor in filing the information in question is deemed a waiver
thereof. As correctly pointed out by the Court of Appeals, petitioner's plea
to an information before he filed a motion to quash may be a waiver of all
objections to it insofar as formal objections to the pleadings are concerned.
But by clear implication, if not by express provision of the Rules of Court,
and by a long line of uniform decisions, questions relating to want of
jurisdiction may be raised at any stage of the proceeding. It is a valid
information signed by a competent officer which, among other requisites,
confers jurisdiction on the court over the person of the accused (herein
petitioner) and the subject matter of the accusation. In consonance with this
view, an infirmity in the information, such as lack of authority of the officer
signing it, cannot be cured by silence, acquiescence, or even by express
consent.

In fine, there must have been a valid and sufficient complaint or information
in the former prosecution. If, therefore, the complaint or information was
insufficient because it was so defective in form or substance that the
conviction upon it could not have been sustained, its dismissal without the
consent of the accused cannot be pleaded. As the fiscal had no authority to
file the information, the dismissal of the first information would not be a bar
to petitioner's subsequent prosecution. Jeopardy does not attach where a
defendant pleads guilty to a defective indictment that is voluntarily
dismissed by the prosecution.

Petitioner next claims that the lack of authority of the City Prosecutor was
the error of the investigating panel and the same should not be used to
prejudice and penalize him. It is an all too familiar maxim that the State is
not bound or estopped by the mistakes or inadvertence of its officials and
employees. To rule otherwise could very well result in setting felons free,
deny proper protection to the community, and give rise to the possibility of
connivance between the prosecutor and the accused.

Finally, petitioner avers that an amendment of the first information, and not
its dismissal, should have been the remedy sought by the prosecution.
Suffice it to say that this Court, in Galvez vs. Court of Appeals has ruled
that even if amendment is proper, pursuant to Section 14 of Rule 110, it is
also quite plausible under the same provision that, instead of an
amendment, an information may be dismissed to give way to the filing of a
new information.61 (Emphasis in the original, citations omitted)cralawred
However, for quashal of an information to be sustained, the defect of the
information must be evident on its face. In Santos v. People:62

First, a motion to quash should be based on a defect in the information

which is evident on its face. The same cannot be said herein. The
Information against petitioner appears valid on its face; and that it was filed
in violation of her constitutional rights to due process and equal protection
of the laws is not evident on the face thereof. As pointed out by the CTA
First Division in its 11 May 2006 Resolution, the more appropriate recourse
petitioner should have taken, given the dismissal of similar charges against
Velasquez, was to appeal the Resolution dated 21 October 2005 of the
Office of the State Prosecutor recommending the filing of an information
against her with the DOJ Secretary.63cralawred
For an information to be quashed based on the prosecutor's lack of
authority to file it, the lack of the authority must be evident on the face of
the information.

The Informations here do not allege that the venue of the offense was other
than Morong, Bataan. Thus, it is not apparent on the face of the
Informations that the prosecutor did not have the authority to file them.

The proper remedy is to give the prosecution the opportunity to amend the
Informations. If the proper venue appears not to be Morong, Bataan after
the Informations have been amended, then the trial court may dismiss the
case due to lack of jurisdiction, as well as lack of authority of the prosecutor
to file the information.

III

Article 355 of the Revised Penal Code

provides:chanRoblesvirtualLawlibrary

Article 355. Libel by means of writings or similar means. - A libel committed

by means of writing, printing, lithography, engraving, radio, phonograph,
painting, theatrical exhibition, cinematographic exhibition, or any similar
means, shall be punished by prision correccional in its minimum and
medium periods or a fine ranging from 200 to 6,000 pesos, or both, in
addition to civil action which may be brought by the offended
party.cralawred
Petitioner argues that at the time of the offense, emails were not covered
under Article 355 of the Revised Penal Code. Petitioner claims this is
bolstered by the enactment of Republic Act No. 10175, otherwise known as
the Anti-Cybercrime Law, which widened the scope of libel to include libel
committed through email, among others.64ChanRoblesVirtualawlibrary

Whether emailing or, as in this case, sending emails to the persons named
in the Informations—who appear to be officials of Subic Bay Metropolitan
Authority where Subic Bay Marine Exploratorium is found—is sufficiently
"public," as required by Articles 353 and 355 of the Revised Penal Code
and by the Anti-Cybercrime Law, is a matter of defense that should be
properly raised during trial.

Passionate and emphatic grievance, channelled through proper public

authorities, partakes of a degree of protected freedom of
expression.65ChanRoblesVirtualawlibrary

Certainly, if we remain faithful to the dictum that public office is a public

trust,66 some leeway should be given to the public to express disgust. The
scope and extent of that protection cannot be grounded in abstractions.
The facts of this case need to be proven by evidence; otherwise, this Court
exercises barren abstractions that may wander into situations only
imagined, not real.

IV

Good faith is not among the grounds for quashing an information as

enumerated in Rule 117, Section 3 of the Rules of Court. It is not apparent
on the face of the Informations, and what is not apparent cannot be the
basis for quashing them. In Danguilan-Vitug v. Court of Appeals:67

We find no reason to depart from said conclusion. Section 3, Rule 117 of

the Revised Rules of Court enumerates the grounds for quashing an
information. Specifically, paragraph (g) of said provision states that the
accused may move to quash the complaint or information where it contains
averments which, if true, would constitute a legal excuse or justification.
Hence, for the alleged privilege to be a ground for quashing the
information, the same should have been averred in the information itself
and secondly, the privilege should be absolute, not only qualified. Where,
however, these circumstances are not alleged in the information, quashal is
not proper as they should be raised and proved as defenses. With more
reason is it true in the case of merely qualifiedly privileged communications
because such cases remain actionable since the defamatory
communication is simply presumed to be not malicious, thereby relieving
the defendant of the burden of proving good intention and justifiable motive.
The burden is on the prosecution to prove malice. Thus, even if the
qualifiedly privileged nature of the communication is alleged in the
information, it cannot be quashed especially where prosecution opposes
the same so as not to deprive the latter of its day in court, but prosecution
can only prove its case after trial on the merits. In People v. Gomez we
held, inter alia:chanRoblesvirtualLawlibrary
"The claim of the accused . . . that the letter is privileged communication is
not a ground for a motion to quash. It is a matter of defense which must be
proved after trial of the case on the merits."68 (Citations omitted)cralawred
Thus, the Court of Appeals did not err in disregarding petitioner's purported
good faith. This should be a matter of defense properly raised during trial.

WHEREFORE, the Petition for Review on Certiorari dated July 29, 2013
is DENIED. The Court of Appeals Decision dated January 8, 2013 and
Resolution dated July 10, 2013 are AFFIRMED.

SO ORDERED.